SETTLEMENT AGREEMENT BETWEEN

 

THE UNITED STATES OF AMERICA

 

AND

 

THE TOWN OF FOUNTAIN HILLS, AZ

 

UNDER THE AMERICANS WITH DISABILITIES ACT

 

DJ 204-8-197

 

 

 

BACKGROUND

 

SCOPE OF THE INVESTIGATION

 

            The United States Department of Justice (Department) initiated this matter as a compliance review of the Town of Fountain Hills, AZ under title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12131-12134, and the Department's implementing regulation, 28 C.F.R. Part 35.

 

            The review was conducted by the Disability Rights Section of the Department's Civil Rights Division and focused on the Town's compliance with the following title II requirements:

 

C           to conduct a self-evaluation of its services, policies, and practices by July 26, 1992, and make modifications necessary to comply with the Department's title II regulation, 28 C.F.R. § 35.105;

 

C           to notify applicants, participants, beneficiaries, and other interested persons of their rights and the Town's obligations under title II and the Department's regulation, 28 C.F.R. § 35.106;

 

C           to designate a responsible employee to coordinate its efforts to comply with and carry out the Town's ADA responsibilities, 28 C.F.R. § 35.107(a);

 

C           to establish a grievance procedure for resolving complaints of violations of title II, 28 C.F.R. § 35.107(b);

 

C           to operate each program, service, or activity so that, when viewed in its entirety, it is readily accessible to and usable by individuals with disabilities, 28 C.F.R. § 35.150, by:

 

 

C           to ensure that facilities for which construction or alteration was begun after January 26, 1992, are readily accessible to and usable by people with disabilities, in accordance with 1) the Department's title II regulation and 2) the Standards or UFAS, 28 C.F.R. § 35.151;

 

C           to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others, including furnishing auxiliary aids and services when necessary, 28 C.F.R. § 35.160;

 

C           to provide direct access via TTY (text telephone) or computer-to-telephone emergency services, including 9-1-1 services, for persons who use TTY's and computer modems, 28 C.F.R. § 35.162;

 

C           to provide information for interested persons with disabilities concerning the existence and location of the Town's accessible services, activities, and facilities, 28 C.F.R. § 35.163(a); and

 

C           to provide signage at all inaccessible entrances to each of its facilities, directing users to an accessible entrance or to information about accessible facilities, 28 C.F.R. § 35.163(b).

 

            As part of its compliance review, the Department reviewed the following facilities,  which – because construction or alterations commenced after January 26, 1992 – must comply with the ADA's new construction or alterations requirements: Fountain Hills Community Center, Library/Museum, Saguaro Fire Station, Fountain Park, Golden Eagle Park, Desert Vista Neighborhood Park (Dog Park), Four Peaks Neighborhood Park, Maintenance Yard, and the Town Hall Offices Buildings A, B, and C.

 

            The Department's program access review covered those of the Town's programs, services, and activities that operate in the following facilities: Palisades Fire Department and the Fire Station Out Building.

           

 

            The Department reviewed the Town's policies and procedures regarding voting, emergency management and disaster prevention, and sidewalk maintenance to evaluate whether persons with disabilities have an equal opportunity to utilize these programs.  

 

           

JURISDICTION

 

1.         The ADA applies to the Town of Fountain Hills because it is a "public entity" as defined by title II.  42 U.S.C. § 12131(1).

 

2.         The Department is authorized under 28 C.F.R. Part 35, Subpart F, to determine the compliance of the Town of Fountain Hills with title II of the ADA and the Department's title II implementing regulation, 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 a civil action enforcing title II of the ADA should the Department fail to secure voluntary compliance pursuant to Subpart F.

 

3.         The parties to this Agreement are the United States of America and the Town of Fountain Hills, AZ.

 

4.         In order to avoid the burdens and expenses of an investigation and possible litigation, the parties enter into this Agreement.

 

5.         In consideration of, and consistent with, the terms of this Agreement, the Attorney General agrees to refrain from filing a civil suit in this matter regarding all matters contained within this Agreement, except as provided in the section entitled "Implementation and Enforcement."

 

           

REMEDIAL ACTION

 

NOTIFICATION

 

6.         Within two months of the effective date of this Agreement, the Town will adopt the attached Notice (Attachment A); distribute it to all agency heads; publish the Notice in a local newspaper of general circulation serving the Town; post the Notice on its Internet Home Page; and post copies in conspicuous locations in its public buildings.  It will refresh the posted copies, and update the contact information contained on the Notice, as necessary, for the life of this Agreement.  Copies will also be provided to any person upon request.

 

7.         Within three months of the effective date of this Agreement, and on yearly anniversaries of this Agreement until it expires, the Town will implement and report to the Department its written procedures for providing information for interested persons with disabilities concerning the existence and location of the Town accessible programs, services, and activities.

 

GRIEVANCE PROCEDURE

 

8.         Within three months of the effective date of this Agreement, the Town will adopt the attached ADA Grievance Procedure (Attachment B), distribute it to all agency heads, and post copies of it in conspicuous locations in each of its public buildings.  It will refresh the posted copies, and update the contact information contained on it, as necessary, for the life of the Agreement.  Copies will also be provided to any person upon request.

 

 

GENERAL EFFECTIVE COMMUNICATION PROVISIONS

 

9.         Within three months of the effective date of this Agreement, the Town will identify sources of qualified sign language and oral interpreters, real-time transcription services, and vendors that can put documents in Braille, and will implement and report to the Department its written procedures, with time frames, for fulfilling requests from the public for sign language or oral interpreters, real-time transcription services, and documents in alternate formats (Braille, large print, cassette tapes, etc.).

 

10.       The Town will take steps to ensure that all appropriate employees are trained and practiced in using the Arizona Relay Service to make and receive calls.

 

 

9-1-1

 

11.       Within three months of the effective date of this Agreement, the Town will ensure that each 9-1-1 call station is equipped with a TTY or computer equivalent.

 

12.       Within three months of the effective date of this Agreement, the Town will develop procedures for answering 9-1-1 calls that include training all call takers to use a TTY to take 9-1-1 calls, to recognize a "silent" open line as a potential TTY call and respond by TTY, and to ensure that TTY calls are answered as quickly as other calls received.

 

13.       The Town will monitor its incoming 9-1-1 TTY calls to ensure they are answered as quickly and accurately as other calls received.

 

14.       The Town will incorporate correct TTY call-taking procedures into 9-1-1 call takers' performance evaluations and will amend its personnel policies to include written disciplinary procedures for call takers who fail to perform TTY call-taking consistent with the training and procedures.  The Town will implement and report to the Department its evaluation and procedures within three months of the effective date of this Agreement.

 

 

EMPLOYMENT

 

15.       Within three months of the effective date of this Agreement, the Town will amend its employment policies, as necessary, to comply with the regulations of the U.S. Equal Employment Opportunity Commission implementing title I of the Americans with Disabilities Act of 1990, codified at 29 C.F.R. Part 1630.  At minimum, those policies will provide that the Town:

 

C                       will not discriminate on the basis of disability in its hiring or employment practices.

 

C                       will not ask a job applicant about the existence, nature, or severity of a disability.  Applicants may be asked about their ability to perform specific job functions.  Medical examinations or inquiries may be made, but only after a conditional offer of employment is made and only if required of all applicants for the position.

 

C                       will make reasonable accommodations for the known physical or mental limitations of a qualified applicant or employee with a disability upon request unless the accommodation would cause an undue hardship on the operation of the Town's business.  If an applicant or an employee requests a reasonable accommodation and the individual's disability and need for the accommodation are not readily apparent or otherwise known, the Town may ask the individual for information necessary to determine if the individual has a disability-related need for the accommodation.

 

C                       will maintain any employee's medical records separate from personnel files and keep them confidential.

 

C                       will make an individualized assessment of whether a qualified individual with a disability meets selection criteria for employment decisions.  To the extent the Town's selection criteria have the effect of disqualifying an individual because of disability, those criteria will be job-related and consistent with business necessity.

 

EMERGENCY MANAGEMENT PROCEDURES AND POLICIES

 

16.       If the Town contracts with another entity, such as the American Red Cross or another local government, to provide its emergency preparedness plans and emergency response services, the Town will ensure that the other entity complies with the following provisions on its behalf.

 

17.       Within three months of the effective date of this Agreement, the Town will implement and report to the Department its written procedures that ensure that it regularly solicits and incorporates input from persons with a variety of disabilities and those who serve them regarding all phases of its emergency management plan (preparation, notification, response, and clean up).

 

18.       Within three months of the effective date of this Agreement, the Town will implement and report to the Department its written procedures that ensure that its community evacuation plans enable those who have mobility impairments, vision impairments, hearing impairments, cognitive disabilities, mental illness, or other disabilities to safely self-evacuate or be evacuated by others.  Some communities are instituting voluntary, confidential registries of persons with disabilities who may need individualized evacuation assistance or notification.  If the Town adopts or maintains such a registry, its report to the Department will discuss its procedures for ensuring voluntariness, appropriate confidentiality controls, and how the registry will be kept updated, as well as its outreach plan to inform persons with disabilities of its availability.  Whether or not a registry is used, the Town plan should address accessible transportation needs for persons with disabilities.

 

19.       Within three months of the effective date of this Agreement, the Town will implement and report to the Department its written procedures that ensure that if its emergency warning systems use sirens or other audible alerts, it will also provide ways to inform persons with hearing impairments of an impending disaster.  The use of auto-dialed TTY messages to pre-registered individuals who are deaf or hard of hearing, text messaging, e-mails, open-captioning on local TV stations and other innovative uses of technology may be incorporated into such procedures, as well as lower-tech options such as dispatching qualified sign language interpreters to assist with emergency TV broadcasts.

 

20.       Within three months of the effective date of this Agreement, the Town will implement and report to the Department its written procedures that ensure that at least one emergency shelter has a back-up generator and a way to keep medications refrigerated (such as a refrigerator or a cooler with ice).  Such shelter(s) will be made available to persons whose disabilities require access to electricity and refrigeration, for example, for using life-sustaining medical devices, providing power to motorized wheelchairs, and preserving certain medications, such as insulin, that require refrigeration.  The written procedures will include a plan for notifying persons of the location of such shelter(s).

 

21.       Within three months of the effective date of this Agreement, the Town will implement and report to the Department its written procedures that ensure that persons who use service animals are not separated from their service animals when sheltering during an emergency, even if pets are normally prohibited in shelters.  The procedures will not unnecessarily segregate persons who use service animals from others but may take into account the potential presence of persons who, for safety or health reasons, should not be in contact with certain types of animals.

 

22.       Some of the Town's emergency shelters may be owned or operated by other public entities subject to title II or by public accommodations subject to title III and, as such, are subject to the obligation to provide program access or remove barriers to accessibility under the ADA.  This Agreement does not limit such future enforcement action against the owners or operators of these facilities by any person or entity, including the Department.

 

23.       Within three months of the effective date of this Agreement and until all emergency shelters have accessible parking, exterior routes, entrances, interior routes to the shelter area, and toilet rooms serving the shelter area, the Town will identify and widely publicize to the public and to persons with disabilities and the organizations that serve them the most accessible emergency shelters.

 

24.       To the extent that Fountain Hills provides opportunities for post-emergency temporary housing to its residents, within 3 months of the effective date of this Agreement, it will develop, implement, and report to the Department its plans for providing equivalent opportunities for accessible post-emergency temporary housing to persons with disabilities.  Within one year of the effective date of this Agreement, Fountain Hills will ensure that information it makes available regarding temporary housing includes information on accessible housing (such as accessible hotel rooms within the community or in nearby communities) that could be used if people with disabilities cannot immediately return home after a disaster if, for instance, necessary accessible features such as ramps or electrical systems have been compromised.

 

 

 

SIDEWALKS

 

25.       Within three months of the effective date of this Agreement, the Town will implement and report to the Department its written process for soliciting and receiving input from persons with disabilities regarding the accessibility of its sidewalks, including, for example, requests to add curb cuts at particular locations.

 

26.       Within three months of the effective date of this Agreement, the Town will identify and report to the Department all streets, roads, and highways that have been constructed or altered since January 26, 1992.  Paving, repaving, or resurfacing a street, road, or highway is considered an alteration for the purposes of this Agreement.  Filling a pothole is not considered an alteration for the purposes of this Agreement.  Within thirty months of the effective date of this Agreement, the Town will provide curb ramps or other sloped areas complying with the Standards or UFAS at all intersections of the streets, roads, and highways identified under this paragraph having curbs or other barriers to entry from a street level pedestrian walkway.

 

27.       Beginning no later than three months after the effective date of this Agreement, the Town will provide curb ramps or other sloped areas complying with the Standards or UFAS at any intersection having curbs or other barriers to entry from a street level pedestrian walkway, whenever a new street, road, or highway is constructed or altered.

 

28.       Within three months of the effective date of this Agreement, the Town will identify all street level pedestrian walkways that have been constructed or altered since January 26, 1992.  Paving, repaving, or resurfacing a walkway is considered an alteration for the purposes of this Agreement.  Within thirty months of the effective date of this Agreement, the Town will provide curb ramps or other sloped areas complying with the Standards or UFAS at all places where a street level pedestrian walkway identified under this paragraph intersects with a street, road, or highway.

 

29.       Beginning no later than three months after the effective date of this Agreement, the Town will provide curb ramps or other sloped areas complying with the Standards or UFAS at all newly constructed or altered pedestrian walkways where they intersect a street, road, or highway.

 

WEB-BASED SERVICES AND PROGRAMS

 

30.       Within 1 month of the effective date of this Agreement, and on subsequent anniversaries of the effective date of this Agreement, the Town will distribute to all persons – employees and contractors – who design, develop, maintain, or otherwise have responsibility for content and format of its website(s) or third party websites used by the Town (Internet Personnel) the technical assistance document, "Accessibility of State and Local Government Websites to People with Disabilities," which is Attachment C to this Agreement (it is also available at www.ada.gov/websites2.htm).

 

31.       Within three months of the effective date of this Agreement, and throughout the life of the Agreement, the Town will do the following:

 

A.        Establish, implement, and post online a policy that its web pages will be accessible and create a process for implementation;

 

B.         Ensure that all new and modified web pages and content are accessible;

 

C.        Develop and implement a plan for making existing web content more accessible;

 

D.        Provide a way for online visitors to request accessible information or services by posting a telephone number or e-mail address on its home page; and

 

E.         Periodically (at least annually) enlist persons with disabilities to test its pages for ease of use.

 

 

PHYSICAL CHANGES TO FACILITIES

 

32.       The elements or features of the Town's facilities that do not comply with the Standards, including those listed in Attachments D, E, F, and G, prevent persons with disabilities from fully and equally enjoying the Town's services, programs, or activities and constitute discrimination on the basis of disability within the meaning of 42 U.S.C. § 12132 and 28 C.F.R. §§ 35.149 and 35.150.

 

33.       The Town will comply with the cited provisions of the Standards when taking the actions required by this Agreement.

 

34.       Within three months of the effective date of this Agreement, the Town will install signage as necessary to comply with 28 C.F.R. § 35.163(b), after having surveyed all facilities that are the subject of this Agreement for the purpose of identifying those that have multiple entrances not all of which are accessible.

 

35.       Newly Constructed Facilities:  In order to ensure that the spaces and elements in Town facilities for which construction was commenced after January 26, 1992, are readily accessible to and usable by persons with disabilities, the Town will take the actions listed in Attachment D.

 

36.       Altered Facilities:  In order to ensure that the spaces and elements in Town facilities for which alterations commenced after January 26, 1992, are readily accessible to and usable by persons with disabilities, the Town will take the actions listed in Attachment E.

 

37.       Program Access in Town Existing Facilities:  In order to ensure that each of the Town's programs, services, and activities operating at a facility that is the subject of this Agreement, when viewed in its entirety, is readily accessible to and usable by persons with mobility impairments, the Town will take the actions listed in Attachment F.

 

PROGRAM MODIFICATIONS

 

38.       Access to Town Programs Housed in Others' Facilities:  In order to ensure that the Town's programs, services, and activities that are the subject of this Agreement and that are operated by the Town at facilities owned or controlled by other entities, when viewed in its entirety, are readily accessible to and usable by persons with mobility impairments, the Town will take the actions listed in Attachment G.

 

MISCELLANEOUS PROVISIONS

 

39.       Except as otherwise specified in this Agreement, at yearly anniversaries of the effective date of this Agreement until it expires, the Town will submit written reports to the Department summarizing the actions the Town has taken pursuant to this Agreement.  Reports will include detailed photographs showing measurements, architectural plans, work orders, notices published in the newspaper, copies of adopted policies, and proof of efforts to secure funding/assistance for structural renovations or equipment.

 

40.       Throughout the life of this Agreement, consistent with 28 C.F.R. § 35.133(a), the Town will maintain the accessibility of its programs, activities, services, facilities, and equipment, and will take whatever actions are necessary (such as routine testing of accessibility equipment and routine accessibility audits of its programs and facilities) to do so.  This provision does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs.  28 C.F.R. § 35.133(b).

 

41.       Within six months of the effective date of this Agreement, the Town will develop or procure a two-hour training program on the requirements of the ADA and appropriate ways of serving persons with disabilities.  The Town will use the ADA technical assistance materials developed by the Department and will consult with interested persons, including individuals with disabilities, in developing or procuring the ADA training program.

 

42.       Within one year of the effective date of this Agreement, the Town will deliver its training program to all Town employees who have direct contact with members of the public.  At the end of that period, the Town will submit a copy of its training curriculum and materials to the Department, along with a list of employees trained and the name, title, and address of the trainer.

 

 

IMPLEMENTATION AND ENFORCEMENT

 

43.       If at any time the Town desires to modify any portion of this Agreement because of changed conditions making performance impossible or impractical or for any other reason, it will promptly notify the Department in writing, setting forth the facts and circumstances thought to justify modification and the substance of the proposed modification.  Until there is written Agreement by the Department to the proposed modification, the proposed modification will not take effect.  These actions must receive the prior written approval of the Department, which approval will not be unreasonably withheld or delayed.

 

44.       The Department may review compliance with this Agreement at any time.  If the Department believes that the Town has failed to comply in a timely manner with any requirement of this Agreement without obtaining sufficient advance written agreement with the Department for a modification of the relevant terms, the Department will so notify the Town in writing and it will attempt to resolve the issue or issues in good faith.  If the Department is unable to reach a satisfactory resolution of the issue or issues raised within 30 days of the date it provides notice to the Town, it may institute a civil action in federal district court to enforce the terms of this Agreement, or it may initiate appropriate steps to enforce title II and section 504 of the Rehabilitation Act.

 

45.       The Department may review compliance with this Agreement at any time.  If the Department believes that the Town has failed to comply in a timely manner with any requirement of this Agreement without obtaining sufficient advance written agreement with the Department for a modification of the relevant terms, the Department will so notify the Town in writing and it will attempt to resolve the issue or issues in good faith.  If the Department is unable to reach a satisfactory resolution of the issue or issues raised within 30 days of the date it provides notice to the Town, it may institute a civil action in federal district court to enforce the terms of this Agreement, or it may initiate appropriate steps to enforce title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12131-12134, and the Department's implementing regulation, 28 C.F.R. Part 35.

 

46.       For purposes of the immediately preceding paragraph, it is a violation of this Agreement for the Town to fail to comply in a timely manner with any of its requirements without obtaining sufficient advance written agreement with the Department for an extension of the relevant time frame imposed by the Agreement.

 

47.       Failure by the Department to enforce this entire Agreement or any provision thereof with regard to any deadline or any other provision herein will not be construed as a waiver of the Department's right to enforce other deadlines and provisions of this Agreement.

 

48.       This Agreement is a public document.  A copy of this document or any information contained in it will be made available to any person by the Town or the Department on request.

 

49.       This Agreement constitutes the entire agreement between the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written Agreement (including its Attachments, which are hereby incorporated by reference), will be enforceable.  This Agreement does not purport to remedy any other potential violations of the ADA or any other federal law.  This Agreement does not affect the Town's continuing responsibility to comply with all aspects of the ADA and section 504 of the Rehabilitation Act.

 

50.       This Agreement will remain in effect for three years.

 

51.       The person signing for the Town represents that he or she is authorized to bind the Town to this Agreement.

 

52.       The effective date of this Agreement is the date of the last signature below.

 

 

 For the Town:

 

 

 

 

By: ____________________________

 

 

 

 

 

 

 

 

 

 

 

 

Date:  ___________________________ 

     For the United States:

 

     R. ALEXANDER ACOSTA,

     Assistant Attorney General for Civil Rights

 

By:_____________________________                    

     JOHN L. WODATCH, Chief

     JEANINE WORDEN, Deputy Chief

     MARY LOU MOBLEY, Senior Counsel

     JOSH MENDELSOHN, Supervisory Attorney

     TONI POCHUCHA, Investigator

     MICHELE ANTONIO MALLOZZI, Architect

     U.S. Department of Justice

     Civil Rights Division

     950 Pennsylvania Avenue, N.W.

     Disability Rights Section - NYA

     Washington, DC 20530

 

Date:  ______________________________