SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
THE CITY OF HENDERSON, NEVADA
Department of Justice Complaint No. 204-46-167
- This Agreement is entered into between the United States Department of Justice ("the United States") and the City of Henderson, Nevada ("Henderson"). It is the Parties' intent that this Settlement Agreement shall resolve all issues associated with the provision of effective communication with persons who are deaf and hard of hearing so that they may participate in or benefit from the services, programs, or activities of the Henderson Police Department on an equal basis with other individuals, including but not limited to arrestees, detainees, suspects, victims, witnesses, companions, complainants, and visitors. This Agreement establishes Henderson's obligations to provide appropriate auxiliary aids and services whenever necessary to ensure effective communications with qualified individuals who are deaf or hard of hearing with respect to all Henderson Police Department programs, services, and activities.
- The Henderson Police Department has an Operations Command and a Support Command. The Operations Command includes patrol divisions, comprised of officers charged with responding to citizen requests for assistance, conducting investigations, and effectuating arrests, among other duties. The Support Command includes a corrections division, which operates a detention facility providing detention services for City of Henderson misdemeanants, among others. Medical care for arrestees and detainees, including 24 hour nursing care, is provided by a contracted medical service provider.
- The United States initiated an administrative investigation upon receipt of a complaint filed pursuant to Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131-12134, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C § 794(a). The complainant alleged, inter alia, that Henderson failed to ensure that police officers and employees communicated effectively with him ("RP") and his girlfriend ("EB"), when arriving on scene to an alleged domestic assault matter and during the complainant's detention arising out of that incident. Both RP and EB are deaf and rely primarily on American Sign Language to communicate.
- Police officers responded to a call regarding a possible domestic incident occurring at RP and his roommate's ("JD's") apartment on October 16, 2011. It is undisputed that police officers understood both RP and EB were deaf when they arrived. Upon arrival of the officers, RP presented the responding officer with a card indicating that he was deaf containing the phone number for a sign language interpreter service. The officer did contact the sign language interpreter service but was advised that it would be at least two hours before an interpreter would be dispatched to the location. Efforts were unsuccessful to secure another interpreter service; however, officers believed RP and EB were able to communicate through lip reading and hand gestures. RP and EB disagree with Henderson regarding whether they requested an interpreter or whether the officers were able to communicate effectively with them through gestures and exchanges of written notes. It is undisputed the officers verbally interviewed RP's roommate, JD, who is not deaf, on-scene and based at least some of their understanding of what had transpired during the incident on JD's account. RP was arrested and charged with a misdemeanor (Domestic Battery, First Offense). He was transported to the detention facility, where he was processed and detained until his court appearance two days later. RP alleges that although Henderson knew he was deaf, he was never offered nor provided a qualified sign language interpreter to achieve effective communication during any stage of his incarceration, including during booking, intake, or his medical evaluation. He alleges he was unable to communicate the extent of injuries he had sustained at the hands of his roommate, JD, and upon release from the detention facility, went directly to a local hospital emergency department for care for neck, back, and abdominal pain. Hospital personnel examined, treated, and released RP. Henderson denies RP's allegations and contends there was effective communication throughout the booking process.
- Henderson expressly denies any and all wrongdoing and liability. Specifically, Henderson affirms the following: Prior to the receiving the complaint, Henderson took proactive measures in reviewing and modifying their policies relating to interacting with deaf people. Prior to the execution of this Agreement, Henderson has implemented a majority of the recommendations contained in this Agreement. Henderson has demonstrated its commitment through full cooperation with the investigation, by taking an active role in addressing potential concerns to ensure compliance under the ADA.
- The ADA applies to Henderson because it is a "public entity" pursuant to Title II of the ADA, 42 U.S.C. § 12131. Title II of the ADA prohibits discrimination against qualified individuals with disabilities on the basis of disability in the "services, programs, or activities of a public entity." 42 U.S.C. § 12132.
- Section 504 of the Rehabilitation Act applies to Henderson because it receives funding and assistance from the U.S. Department of Justice. Section 504 prohibits discrimination against qualified individuals with disabilities by recipients of federal funds.
- The Attorney General is authorized, under 28 C.F.R. Part 35, Subpart F, to investigate the allegations of the complaint in this matter to determine Henderson's compliance with Title II of the ADA and the United States' Title II implementing regulation at 28 C.F.R. pt. 35. The United States is also authorized to issue findings, and, where appropriate, to negotiate and secure voluntary compliance agreements. Furthermore, the Attorney General is authorized, under 42 U.S.C. § 12133, to bring civil actions enforcing Title II of the ADA should it fail to secure voluntary compliance pursuant to Subpart F.
- The Attorney General is authorized under 28 C.F.R. Part 42, Subpart G, to determine Henderson's compliance with section 504 of the Rehabilitation Act of 1973, to issue findings, and, where appropriate, to negotiate and secure voluntary compliance agreements. Furthermore, should the United States fail to secure voluntary compliance pursuant to Subpart G, the Attorney General is authorized, under 29 U.S.C. § 794 and 28 C.F.R. §§ 42.530 and 42.108-110, to suspend or terminate financial assistance to Henderson provided by the United States or to bring a civil suit to enforce the rights of the United States under applicable federal, state, or local law.
- In consideration of the terms of this Agreement as set forth below, the Attorney General agrees to refrain from filing a civil suit in this matter or from initiating a fund suspension or termination proceeding, except as provided in the paragraph entitled "Notification of Noncompliance and Enforcement," below.
- The Parties have determined that the United States' investigation can be resolved without further investigation, formal findings of violation, enforcement action, or litigation. In order to avoid additional time and expense and to continue its efforts to comply fully with the Americans with Disabilities Act and the Rehabilitation Act, Henderson agrees to enter into this Agreement.
- "Auxiliary aids and services" shall include qualified interpreters on-site or through video remote interpreting (VRI) services; notetakers; computer-aided real-time transcription services (CART); written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing;
- "Disability" will be defined as it is in the ADA, 42 U.S.C. § 12102(2). See also 28 C.F.R. sec. 35.104. Specifically, a person is "deaf" or "hard of hearing" for the purposes of this Agreement if she or he has a physical impairment that substantially limits the major life activity of hearing, with or without mitigating measures such as hearing aids or cochlear implants.
- "Effective communication" will mean communication with persons with disabilities that is as effective as communication with others. Effective communication is achieved by furnishing appropriate auxiliary aids and services where necessary to afford qualified individuals with disabilities an equal opportunity to participate in or benefit from the services, programs, or activities of a public entity.
- "Exigent circumstances" will mean circumstances where any delay in providing immediate services to the individual could have life-altering or life-ending consequences. "Non-exigent circumstances" will mean all other circumstances.
- "Members of the public" or "individuals" will mean people who are not Police Department personnel. These include, but are not limited to, crime victims, witnesses, suspects, arrestees, detainees, and those who seek access to law enforcement and related programs, services, and activities, as well as deaf or hard of hearing companions of non-disabled crime victims, witnesses, suspects, arrestees, detainees, and others, so long as the deaf or hard of hearing companion is the type of person (such as spouse, child, etc.) with whom Henderson Police Department personnel would normally communicate under the circumstances. 28 C.F.R. § 35.160(a)(2).
- "Qualified Interpreter" will mean an interpreter who, via a video remote interpreting (VRI) service or an on-site appearance, is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary, given the deaf or hard of hearing individual's language skills and education. Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators. 28 C.F.R. § 35.104. Not all interpreters are qualified for all situations. For example, an interpreter who is qualified to interpret using American Sign Language (ASL) is not necessarily qualified to interpret orally. Also, someone who has only a rudimentary familiarity with sign language or finger spelling is not a "qualified sign language interpreter." Likewise, someone who is fluent in sign language but who does not possess the ability to process spoken communication into the proper signs or to observe people signing and translate their signed or finger-spelled communication into spoken words is not a qualified sign language interpreter. 28 C.F.R. pt. 35, App. A.
- "Personnel" will mean all Henderson Police Department employees and volunteers, including those associated with the detention facility.
- "TTYs" will mean devices that are used with a telephone to communicate with persons who are deaf or hard of hearing by typing and reading communications.
- "Video Remote Interpreting service" or "VRI" will mean an interpreting service that uses video conference technology over dedicated lines or wireless technology offering high-speed, wide-bandwidth video connection that delivers high-quality video images as provided in 28 C.F.R. § 35.160(d).
TERMS AND CONDITIONS
- Nondiscrimination. With respect to all Police Department programs, services, and activities, Henderson agrees not to engage in any act or practice, directly or through contracting, licensing, or other arrangements, that has the purpose or effect of unlawfully discriminating against any person with a disability in violation of Title II of the ADA or Section 504 of the Rehabilitation Act. Unless otherwise indicated, within thirty (30) days after the effective date of this Agreement, Henderson agrees to implement fully the practices and policies set forth below.
- Coverage of Involuntary Participation. Throughout this Agreement, terms such as "enjoyment," "benefit," or "seek" that in other contexts might imply the voluntary and willing participation of a member of the public in Henderson's Police Department programs, services, or activities, shall also refer to a member of the public's involuntary participation in the Police Department's programs, services, and activities, such as arrest or detention.
- ADA Coordinator. The City of Henderson's current ADA Coordinator will remain as the person responsible for receiving and investigating allegations against the Henderson Police Department for its noncompliance with or any actions that would be prohibited by Title II, Section 504, or this Agreement. Henderson will continue to make available to all interested members of the public the name, office address, and telephone number of the employee or employees designated pursuant to this paragraph.
- Grievance Procedures. Within 30 days of the effective date of this Agreement, Henderson will adopt and publish grievance procedures providing for prompt and equitable resolution of complaints related to law enforcement and related programs, services, and activities alleging any action that would be prohibited by Title II, Section 504, or this Agreement. See 28 C.F.R. § 35.107(b).
- Prohibition of Retaliation or Coercion. Henderson will not discriminate against an individual because that individual has opposed any act or practice made unlawful by Title II, Section 504, or this Agreement, or because the individual made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing under Title II, Section 504, or this Agreement. Henderson will not coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any individual in the exercise or enjoyment of, any right granted or protected by Title II, Section 504, or this Agreement. See 28 C.F. R. § 35.134.
- Duties. Henderson is not required to take any action under this Agreement that it can demonstrate would result in a fundamental alteration in the nature of a law enforcement or related service, program, or activity, or in undue financial and administrative burdens. See 28 C.F.R. § 35.164. In those circumstances where personnel believe the proposed action would fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens, Henderson has the burden of proving that compliance with Title II, Section 504, or this Agreement would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the Chief of Police or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action required to comply with Title II, Section 504, or this Agreement would result in such an alteration or such burdens, Henderson will take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that, to the maximum extent possible, members of the public with disabilities receive the benefits or services provided by the Police Department. See 28 C.F. R. § 35.164.
- Provision of Auxiliary Aids and Services. Henderson will ensure that appropriate auxiliary aids and services, including qualified interpreters, are made available to all members of the public who are deaf or hard of hearing, where such aids and services are necessary to ensure effective communication, so that they may participate in or benefit from the Police Department's services, programs, or activities on an equal basis with others.
- Primary Consideration. In determining what type of auxiliary aid or service is necessary to comply with the ADA, Henderson agrees to give primary consideration to the expressed preference for a particular auxiliary aid or service by an individual who is deaf or hard of hearing. 28 C.F.R. § 35.160. "Primary consideration" will mean that personnel will inquire as to the choice of auxiliary aid or service of the individual with a disability and will honor the expressed choice unless Henderson can demonstrate that another equally effective means of communication is available. Specifically, to determine whether someone who is or may be deaf or hard of hearing wants a qualified sign language interpreter, in all non-exigent circumstances, personnel will use the American Sign Language pictogram for "sign language interpreter" available at Exhibit 2 to inquire as to the person's preference.
- Use of Interpreting Service Agency(ies). Within thirty (30) days of the effective date of the Agreement, Henderson agrees:
- To maintain working relationships with one or more qualified oral/sign language interpreter agencies to ensure that interpreting services will be available on a priority basis, twenty-four hours per day, seven days a week;
- In the alternative, to make other appropriate arrangements such as contracting directly with or hiring qualified interpreters on a fee for service basis;
- To provide the United States with documentation that such interpreter services are being made available;
- To record all requests it receives for oral/sign language interpreters and any action taken or denial of services. That record shall be provided to the United States for review of compliance with this Agreement upon request by the United States and in annual compliance reports as required in the paragraph entitled "Annual Reports; Compliance Review."
- Time for Interpreter Response. Whenever a qualified interpreter is to be provided pursuant to policies and procedures adopted under this Agreement, the qualified interpreter will be provided at the earliest reasonable time. In most cases during normal business hours, an interpreter will be provided within one hour of the first identification of a need. Nighttime, weekend, or holiday requests may take longer, but still must be honored within a reasonable time. "Reasonableness" will be subject to "force majeure" events - i.e., any response time that is delayed because of a force majeure event is excluded from the determination whether the prescribed response criteria have been met. Force majeure events are events outside the reasonable control of Henderson, the interpreting service agency(ies), or the interpreter(s) called to respond, such as weather problems, other Acts of God, unanticipated illness or injury of the interpreter while en route to the reporting site, and unanticipated transportation problems (including, without limitation, mechanical failure of the interpreter's automobile, automobile accidents and roadway obstructions other than routine traffic or congestion).
- Use of Other Members of the Public to Facilitate Communication.
- Henderson shall not require an individual who is deaf or hard of hearing to bring another member of the public to interpret for him or her. See 28 C.F.R. § 35.160(c)(1).
- Henderson will not rely on an adult accompanying an individual who is deaf or hard of hearing to interpret or facilitate communication except:
- In an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available, or
- Where the individual who is deaf or hard of hearing specifically requests that the accompanying adult interpret or facilitate communication, the accompanying adult agrees to provide such assistance, and reliance on that adult for such assistance is appropriate under the circumstances. See 28 C.F.R. § 35.160(c)(2).
- Henderson shall not rely on a minor child to interpret or facilitate communication, except in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available. See 28 C.F.R. § 35.160(c)(1).
- The imminent threat exception in this paragraph and its subparts is not intended to apply to the typical and foreseeable emergency situations that are a part of the normal operations of the Police Department's programs, services, and activities. Personnel may rely on an accompanying individual to interpret or facilitate communication under this paragraph only in truly exigent circumstances, i.e., where any delay in providing immediate services to the individual could have life-altering or life-ending consequences. See 28 C.F.R. pt. 35, App. A. Once the exigency has lifted, personnel should revisit the decision of what auxiliary aids and services are appropriate, inquire as to the person's preferences under the non-exigent circumstances, and give primary consideration to those preferences.
- Use of Employees, Volunteers, or Inmates as Sign Language Interpreters or Oral Transliterators. Henderson will not use its personnel as sign language interpreters or oral transliterators if the employee or volunteer's presence poses a conflict of interest or raises confidentiality and privacy concerns. On occasion, an inmate may possess the skill level necessary to provide interpreting services; however, the impartiality concerns remain, and in most situations, inmate interpreters or transliterators should not be used due to confidentiality, privacy, and security reasons.
- Ongoing Need for Communication Assessments and Consultation. In addition to the initial communication assessment done at the time the need for auxiliary aids and services is first identified, Henderson personnel will reassess communication effectiveness regularly throughout the communication and will consult with the individual who is deaf or hard of hearing on a continuing basis to assess what measures are required to ensure effective communication. See 28 C.F.R. pt. 35, App. A. For inmates, such reassessment will take place on a monthly or more frequent basis.
- Qualified Interpreters for Detention Facility Programs. The following are examples of circumstances when it may be necessary to provide qualified interpreters to ensure effective communication with inmates or detainees who are deaf or hard of hearing in the detention facility:
- initial intake and classification processing (see below for specifics);
- medical care and health programs, such as medical, dental, visual, mental health examinations or treatment and drug and alcohol recovery services;
- educational classes and activities;
- parole hearings conducted at the facility;
- official hearings in which the inmate or detainee is a participant;
- criminal investigations;
- classification review interviews;
- grievance interviews or processes;
- religious services; and
- formal investigations.
The foregoing list of circumstances is neither exhaustive nor mandatory, and shall not imply that there are not other circumstances when it may be necessary to provide qualified interpreters for effective communication.
- Reasonable Modification of Handcuffing Policies. When personnel deem it necessary to handcuff a person who is deaf or hard of hearing, personnel will, safety permitting, reasonably modify standard operating procedure and handcuff deaf people so their hands remain in front of them to facilitate communication using sign language or writing.
- Booking and Intake.
- Qualified Interpreters. As soon as personnel learn that a person who is deaf or hard of hearing will arrive at the detention facility, whether pursuant to an arrest or a transfer from another jurisdiction or facility, personnel will inquire through all available means (including the use of Exhibit 2) as to whether the person would like to use a qualified interpreter for effective communication. If so, a qualified interpreter will be provided to facilitate booking, intake, classification, orientation, and other such processes.
- Video and Transcript. Within 90 days of the effective date of this Agreement, Henderson will produce a Booking Video and written transcript designed to inform arrestees who are deaf or hard of hearing about the booking process. The Booking Video will feature a qualified sign language interpreter communicating what the arrestee or detainee should expect, through the iris scanning, fingerprinting, and other preliminary processes. The written transcript will communicate the same information in writing, for persons who are deaf or hard of hearing who do not use sign language.
- Preliminary Booking Processes. Preliminary booking processes that do not require a lot of communication, such as iris scanning, photographing, and fingerprinting, may proceed without the personal presence of a qualified interpreter otherwise needed for effective communication, provided the person who is deaf or hard of hearing has been able to view the booking video or to read the transcript and has been informed that a qualified interpreter will arrive before processing is complete.
- Other Booking and Intake Processes. If a person who is deaf or hard of hearing has requested a qualified interpreter or responded to the mandatory inquiry that he or she does want a sign language interpreter, any booking process that relies on communication must be delayed until a qualified interpreter is present. Such processes include, but are not limited to, medical screenings, taking criminal and personal histories, and obtaining or transmitting information for classification and housing assignments. If a person who is deaf or hard of hearing expresses an urgent medical need that cannot wait for a qualified interpreter, or personnel suspect there is an urgent medical need, personnel should not delay providing whatever medical care or service would be provided to a nondisabled inmate under the similar circumstances and should use the most effective available means of communicating with the person who is deaf or hard of hearing.
- Completion of Booking. Once a qualified interpreter has arrived, the booking process may be completed. The interpreter should accompany the inmate to the housing unit, if inmates generally receive information about their housing unit rules, expected standards of conduct, or other topics upon arrival.
- Inmate Handbook. At the earliest reasonable time, Henderson will effectively communicate the contents of the Inmate Handbook and similar publications to all inmates who are deaf or hard of hearing, including those for whom written English is not an effective means of communication. Henderson may choose to meet this obligation by providing a video of a qualified interpreter signing the contents of the Inmate Handbook, along with appropriate technology for viewing, or by providing a qualified interpreter who will read and interpret the contents of the Inmate Handbook to the person who is deaf or hard of hearing.
Henderson will include in all future printings of its Inmate Handbook and all similar publications a statement to the following effect:
To ensure effective communication with inmates and their visitors who are deaf or hard of hearing, we provide appropriate auxiliary aids and services free of charge, such as: qualified sign language interpreters and oral transliterators, TTY's, notetakers, computer-assisted real time transcription services, written materials, telephone handset amplifiers, assistive listening devices and systems, telephones compatible with hearing aids, closed caption decoders or TVs with built-in captioning, and open and closed captioning of Police Department programs.
Please ask a Correction Officer for assistance.
- Housing Assignments. Henderson will ensure that inmates or detainees who are deaf or hard of hearing are housed in the most integrated setting appropriate to the needs of the individuals. For example, unless it is appropriate to make an exception, Henderson will not place inmates or detainees who are deaf or hard of hearing in designated medical areas unless they are actually receiving medical care or treatment, or in facilities or parts of facilities that do not offer the same programs as the facilities or parts of facilities they would otherwise be housed. See 28 C.F.R. § 35.152.
- Signs. Within 90 days of the effective date of this Agreement, at all police stations, jails, and other City or shared facilities at which personnel are reasonably anticipated to engage with members of the public, Henderson will post conspicuous signs in public areas (including booking and holding areas). See 28 C.F.R. § 35.163. Such signs will advise persons who are deaf or hard of hearing of the availability of appropriate auxiliary aids and services, including qualified interpreters, as follows:
To ensure effective communication with individuals who are deaf or hard of hearing, the City of Henderson will provide auxiliary aids, such as qualified sign language, oral, or tactile interpreters; TTYs; and volume controlled telephones, free of charge.
Please ask for assistance by contacting Henderson's ADA Coordinator, [name and full contact information].
The posted signs will include the International Symbol for Hearing Loss, the International Symbol for TTYs, and a symbol to indicate the availability of sign language interpreters:
- TTYs, Hearing-Aid Compatible Telephones, and Volume Control Telephones. Within ninety (90) days of the effective date of this Agreement, Henderson agrees to provide, if it has not already done so, at least one TTY, one hearing aid compatible telephone, and one volume control telephone for use by personnel and one for members of the public at every facility in which the Police Department operates.
- Where telephones are available to members of the public, TTYs, hearing aid compatible telephones, and volume control telephones will be made available upon request. See 28 C.F.R. § 35.161. Signage will be displayed at all public telephones areas indicating the availability of the TTY, the hearing aid compatible telephone, and the volume control telephone and the procedure for obtaining them.
- Where arrestee or detainee telephone calls are time-limited, Henderson will provide arrestees or detainees who are deaf or hard of hearing who use TTYs three times the normal length of time to make those calls, due to the slower nature of TTY communications compared with voice communications.
- If a TTY, hearing aid compatible telephone, or volume control telephone is not available in the same location as telephones used by arrestees or detainees who are not deaf or hard of hearing, arrestees or detainees who need to use a TTY, hearing aid compatible telephone, or volume control telephone will be allocated reasonable additional time to get to and from the location of the equipment.
- Privacy of Communications. Henderson will ensure that the privacy of telephone calls by arrestees or detainees using a TTY, hearing aid compatible telephone, or volume control telephone is equal to that of other arrestees' or detainees' telephone calls.
- Television Programming. Inmates and detainees who are deaf or hard of hearing will have equivalent access to captioned television programming as non-disabled inmates and detainees in the same classification level.
- Hearing Aid and Cochlear Processor Batteries. Whenever inmates or detainees are housed in the detention facility who use hearing aids, cochlear implants, or other such personal devices, Henderson will purchase and keep appropriate types of hearing aid and cochlear processor batteries in stock. Replacement batteries for these devices will be provided to those requesting them as soon as possible, but no later than 24 hours after such request. To the extent Henderson normally charges inmates and detainees for normal health maintenance items such as toothpaste, Henderson may impose reasonable fees for batteries required under this paragraph. Nothing in this Agreement requires Henderson to purchase a hearing aid or cochlear implant processor for someone who does not already own such a personal device.
- Repair of Hearing Aids and Other Such Personal Devices. Henderson will send inmate and detainee hearing aids, cochlear processors, and other such devices to appropriate repair companies as soon as possible, but no later than 24 hours (excluding weekends and holidays) following a request for the repair of such a personal device. Henderson shall inform the inmate or detainee when the device was sent for repair and when it is expected to be returned by the repair company. The inmate or detainee will be provided with written documentation of all such repairs, including detailed information regarding the vendor used, the date of the repair, and the specific repairs performed.
- Identification. Henderson will take appropriate steps to ensure that all personnel having contact with an inmate or detainee who is deaf or hard of hearing are made aware of the person's disability, and the person's preferred auxiliary aids and services, so that effective communication with the person will be achieved. A person's identity as someone needing appropriate auxiliary aids and services for effective communication will not be treated as confidential medical information.
- Effective Communication Policies and Procedures. Within thirty (30) days of the effective date of this Agreement, Henderson will submit for approval to the United States its policies and procedures to implement fully the Settlement Agreement. The policies and procedures will provide at least as much protection for the rights of persons who are deaf or hard as hearing as are provided by the Model Policy Statement Regarding Effective Communication with People Who Are Deaf or Hard of Hearing, attached hereto as Exhibit 1. Upon receipt of the United States' comments, Henderson will address all of the United States' concerns, if any, and will resubmit a draft for final approval, if any changes were needed. The adoption of the final policies and procedures will occur within 30 days of Henderson's receipt of approval by the United States.
- Monetary and Other Relief. Within 10 days of the effective date of this Agreement, the United States will provide Henderson with releases of claims (Exhibit 3) signed by RP and EB, respectively. Within 10 days of receipt of those signed releases, Henderson will send to RP and EB checks in the amount of $20,000 and $15,000, respectively, payable to RP and EB (using their full names). Henderson will simultaneously send copies of the checks to the United States. Additionally, Henderson will offer to assist RP, to the extent allowable under the law, with the sealing of the record of arrest arising from this incident.
- Within twelve (12) months, and at least once annually throughout the term of this Agreement, Henderson will train all personnel who have contact with members of the public as to effective communication with persons who are deaf or hard of hearing. The training will be sufficiently detailed to enable personnel to effectively implement all provisions of this Agreement, including the relevant Exhibits, and all policies and procedures developed pursuant to this Agreement.
- Henderson will ensure that all new personnel who will have contact with members of the public will receive the training as a component of pre-service training and orientation.
IMPLEMENTATION AND ENFORCEMENT
- Annual Reports; Compliance Review. Henderson will report annually, by January 30th of each year, to the United States as to its compliance with this Agreement. The United States may review compliance with this Agreement at any time.
- Notification of Noncompliance and Enforcement.
- If the United States believes that this Agreement or any portion of it has been violated, it will notify Henderson in writing and attempt to resolve the issue.
- The United States will give Henderson thirty (30) days from the date it notifies it of any breach of this Agreement to make good faith efforts to cure that breach, unless there is a reasonable need for a more prompt response. After thirty days (or earlier reasonable time, if specified) and prior to instituting any court action, the Parties shall meet and confer in good faith on the breach, the progress being made toward curing the breach, and the timeliness of such progress.
- If the Parties reach an impasse and are unable to reach a satisfactory resolution of the issue(s) after meeting and conferring in good faith, the United States may institute a civil action in Federal district court to enforce the terms of this Agreement or Title II and may, in such action, seek any relief available under the law. Alternatively, the United States may seek relief under Section 504 of the Rehabilitation Act in any appropriate venue.
- Lack of Waiver. Failure by the United States to enforce any provision or deadline of this Agreement will not be construed as a waiver of its right to enforce other provisions or deadlines of this Agreement.
- Term of Agreement. The effective date of this Agreement is the date of the last signature below. This Agreement will remain in effect for three (3) years from the effective date of this Agreement.
- Headings. The paragraph headings in this Agreement are for convenience only and will not be deemed to affect in any way the language of the provisions to which they refer.
- Signatories Bind Parties. The person signing for the Parties represent that they are authorized to bind their respective Parties to this Agreement.
- Entire Agreement. This Settlement Agreement constitutes the entire agreement between the parties relating to Department of Justice Complaint No. 204-46-167. No other statement, promise, or agreement, either written or oral, made by any party or agents of any party, that is not contained in this written Settlement Agreement, including its attachments, will be enforceable.
- Public Document. A copy of this document may be made available to any person upon request.
- Parameters of Agreement. This Agreement does not purport to remedy any other potential violations of the ADA, the Rehabilitation Act, or any other Federal law not specifically referenced herein. This Agreement does not affect Henderson's continuing responsibility to comply with all aspects of the ADA and the Rehabilitation Act.
- Severability. If any term of this Agreement is determined by any court or administrative law judge to be unenforceable, the other terms of this Agreement shall nonetheless remain in full force and effect, provided, however, that if the severance of any such provision materially alters the rights or obligations of the parties, the United States and Henderson shall engage in good faith negotiations in order to adopt mutually agreeable amendments to this Agreement as may be necessary to restore the parties as closely as possible to the initially agreed upon relative rights and obligations.
FOR THE CITY OF HENDERSON,
CLARK COUNTY, NEVADA
By: /s/ Jacob L. Snow
JACOB L. SNOW, City Manager
Henderson City Hall
P.O. Box 95050
Henderson, NV 89009-5050
Attest: /s/ Nathan Hill for Sabrina Mercandante
SABRINA MERCANDANTE, MMC, City Clerk
Approved as to from:
/s/Michael Oh for Josh M. Reid
JOSH M. REID, City Attorney
/s/ Connie Kershaw for Richard A. Derrick
RICHARD A. DERRICK, Finance Director
/s/ Patrick Moers
PATRICK MOERS, Chief of Police
FOR THE UNITED STATES:
Acting Assistant Attorney General for Civil Rights
EVE HILL, Deputy Assistant Attorney General
REBECCA B. BOND, Chief
ROBERTA KIRKENDALL, Special Litigation Counsel
By: /s/ Mary Lou Mobley
MARY LOU MOBLEY, Trial Attorney
Disability Rights Section - NYA
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
(202) 514-7821 (fax)
Date: Aug 5, 2013
MODEL POLICY STATEMENT REGARDING EFFECTIVE COMMUNICATION WITH PEOPLE WHO ARE DEAF OR HARD OF HEARING
It is the policy of the City of Henderson and its Police Department to ensure that a consistently high level of service is provided to all community members, including those who are deaf or hard of hearing. The City has specific legal obligations under the Americans with Disabilities Act and the Rehabilitation Act. To carry out these policies and legal obligations, the City and its Police Department instructs its personnel, including employees and volunteers, as follows:
- People who identify themselves as deaf or hard of hearing are entitled to a level of service equivalent to that provided others.
- The City and its Police Department will make every effort to ensure that its personnel communicate effectively with people who have identified themselves as deaf or hard of hearing.
- Effective communication with a person who is deaf or hard of hearing involved in an incident -- whether as a victim, witness, suspect, companion, arrestee, detainee, inmate, or other person connected to the situation -- is essential in ascertaining what actually occurred, the urgency of the matter, and the specifics of the situation and in communicating officers' actions.
- Various types of communication aids – known as "auxiliary aids and services" – are used to communicate with people who are deaf or hard of hearing. These include use of the use of qualified sign language or tactile interpreters or oral transliterators; gestures or visual aids to supplement oral communication; an exchange of written notes; use of a computer or typewriter; or use of assistive listening devices (to amplify sound for persons who are hard of hearing).
- The type of aid that will be required for effective communication will depend on the individual's usual method of communication, and the nature, importance, and duration of the communication at issue.
- In some circumstances (such as a citizen's request for driving directions to a nearby location) oral communication supplemented by gestures and visual aids, an exchange of written notes, use of a computer or typewriter, or use of an assistive listening device may be effective. In other circumstances (including but not limited to arrests in non-exigent circumstances, detention center intake and booking, and medical screenings), qualified sign language or tactile interpreters or oral transliterators are needed to communicate effectively with persons who are deaf or hard of hearing who use sign language.
- To serve each individual effectively, primary consideration will be given to the communication aid or service that works best for that person. The City of Henderson and its Police Department personnel will ask persons who appear to be deaf or hard of hearing whether they need any type of auxiliary aid or service and will initiate the inquiry using the American Sign Language pictogram for sign language interpreter [attached here as Exhibit 2]. Personnel will defer to those expressed choices, unless there is another equally effective way of communicating, given the circumstances, length, time constraints, complexity, and importance of the communication, as well as the communication skills and language of the person who is deaf or hard of hearing.
- The City and its Police Department are not required to provide a particular auxiliary aid or service if doing so would fundamentally alter the nature of the law enforcement activity in question, or if it would cause an undue administrative or financial burden. Only the Chief of Police or his or her designee may make this determination.
- The input of people who are deaf or hard of hearing who are involved in incidents is just as important to the law enforcement process as the input of others.
- Auxiliary aids or services, including qualified interpreters, are to be provided free of charge.
TTY AND RELAY SERVICES
- In situations when a nondisabled person would have access to a telephone, Police Department personnel must provide persons who are deaf or hard of hearing the opportunity to place calls using a text telephone (TTY, also known as a telecommunications device for deaf people, or TDD). Personnel must also accept telephone calls placed by persons who are deaf or hard of hearing through the Telecommunications Relay Service or a Video Relay Service.
Sign Language Interpreter?
In consideration of the payment of $__________, to the individual named below, and pursuant to the terms of the Settlement Agreement entered between the United States and the City of Henderson, Nevada, the individual named below hereby releases the City of Henderson and its Police Department and all employees and volunteers, from liability for any and all claims for relief or causes of action under the Americans with Disabilities Act or the Rehabilitation Act that may arise from the facts and circumstances alleged in Department of Justice File No. 204-46-167.
BY: _________________________________________ DATE: _____________________