SETTLEMENT AGREEMENT
BETWEEN
THE UNITED STATES OF AMERICA
AND
ERIE COUNTY, NEW YORK
REGARDING
THE ERIE COUNTY HOLDING CENTER
AND
THE ERIE COUNTY CORRECTIONAL FACILITY
UNDER THE
AMERICANS WITH DISABILITIES ACT

DJ # 204-53-125

I. BACKGROUND

1. On December 14, 2010, the United States notified Erie County officials of its intent to conduct a compliance review of the Erie County Holding Center and the Erie County Correctional Facility, collectively referred to as the Erie County Jail, to determine compliance with Title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12131-12134 (Title II), and the Department's implementing regulation, 28 C.F.R. Part 35.

   The review was also conducted under the authority of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Section 504), and the Department's implementing regulation, 28 C.F.R. Part 42, Subpart G.

2. On June 21-24, 2011, representatives from the Department of Justice Civil Rights Division toured the Erie County Jail with a consultant in the field of architecture.
3. Erie County and the Erie County Sheriff's Office have fully cooperated with this compliance review.
   
4. Based on this compliance review, the Department concluded that the Erie County Jail contains architectural barriers to access for persons with disabilities and that certain programs, services, and activities are not fully accessible to persons with disabilities in violation of the requirements of the ADA. Erie County and the Erie County Sheriff's Office deny the Department's allegations.  Erie County and the Erie County Sheriff's Office agree to enter into this Settlement Agreement to resolve this matter and to avoid litigation and additional time and expense and to achieve full compliance with Section 504 and the ADA.

II. DEFINITIONS

1. The term “County” shall refer to Erie County and its employees, agents, contractors or successors, who are wholly or partially responsible for the physical plant of the Erie County Jail.

2. The term “Sheriff” shall refer to the Erie County Sheriff’s Office and its employees, agents, contractors or successors, who are wholly or partially responsible for the custody and care of inmates confined to the Erie County Jail.

3. The term “inmate with a disability” shall refer to any inmate who meets the definition of “disability” as set forth in the ADA, 42 U.S.C. § 12102.

4. The term “new construction” shall mean each facility or part of a facility constructed by, on behalf of, or for the use of the Erie County Jail where the construction commenced after January 26, 1992. 28 C.F.R. § 35.151(a)

5. The term “alterations” means a change to the Erie County Jail that affects or could affect the usability of the facility or any part thereof where the alteration was commenced after January 26, 1992. 28 C.F.R. § 35.151(b).

6. The “effective date of this Agreement” is the date of the last signature agreeing and consenting to this Agreement.

III. COMPLIANCE MATTERS

1. Architectural Issues
   1. Within four years of the effective date of this Agreement, the County shall complete the modifications to the Erie County Jail facility as specified in Attachment A, using Title II of the ADA (42 U.S.C. §§ 12131-12134) and the Standards set forth in the Department's implementing regulation, 28 C.F.R. Part 35. The County will retain an Independent Licensed Architect, as set forth in Section VI, to monitor compliance with the provisions of Attachment A and any other alteration, addition, or modification made by the County during the term of this Agreement.
   2. For new and altered facilities, the County shall provide a minimum of 3%, but no fewer than one, of the total number of cells in a facility to be accessible, and shall provide cells with mobility features for each classification level and special housing areas. 28 C.F.R. § 35.151(k).
2. Services, Programs, and Activities
1. To provide access to programs, services, and activities for inmates with disabilities at the Erie County Jail, the Sheriff, consistent with his custodial role, shall:
   1. Ensure that inmates with disabilities are not housed in designated medical areas unless they are actually receiving medical care or treatment. 28 C.F.R § 35.152(b)(2)(ii).
   2. Immediately provide a shower chair at the Erie County Jail to provide safe and equal access to showering for inmates with disabilities. The shower chair must be capable of being propelled by the user and pushed by an attendant, have a padded seat, a minimum load capacity of 300 pounds, removable or swing clear armrests and foot rests, wheel locks, and be designed with rust or corrosion resistant material designed for use in a shower. The Sheriff will ensure that its staff is trained to provide safe operation of the shower chair with inmates, including assisted transfer, as needed. 28 C.F.R. §§ 35.130, 35.130(b)(7).
   3. Ensure that wheelchairs and other adaptive equipment used by inmates with disabilities at the Erie County Jail are routinely cleaned, repaired, maintained, and generally kept in safe, operable condition. In addition, the Sheriff must provide appropriate devices, as required to meet the needs of inmates with disabilities. 28 C.F.R. §§ 35.130, 35.130(b)(7)
   4. Immediately ensure that when inmates who are deaf or have hearing loss are cuffed or restrained, they are cuffed or restrained in a manner that permits effective communication (e.g., cuffing inmates in the front so they can sign) unless legitimate security concerns dictate otherwise. Similarly, the Sheriff immediately shall ensure that inmates who are blind or have low vision are cuffed or restrained in a manner that permits safe mobility for such inmates, including the use of a cane or sighted guide. 28 C.F.R. §§ 35.130, 35.160.

IV. DISABILITIES COORDINATOR

1. The County and the Sheriff shall immediately designate the Executive Director of the Office for the Disabled to be the Disabilities Coordinator with responsibilities for the Erie County Jail. The County and the Sheriff shall provide the Disabilities Coordinator with sufficient authority and resources to perform the tasks required by this Agreement, including coordinating requests for reasonable modifications from inmates with disabilities. 28 C.F.R. § 35.107(a). The Disabilities Coordinator shall maintain records of requests for auxiliary aids and services and the auxiliary aids and services provided with or without a specific inmate request.

V. POLICIES AND PROCEDURES

1. ADA Grievance Procedure: Within thirty days of the effective date of this Agreement, the Sheriff will submit its written ADA Grievance Procedure for resolving inmate ADA complaints to the United States for review and approval. 28 C.F.R. § 35.107(b). The United States shall review the draft Grievance procedure and provide its comments to the Sheriff. The Sheriff shall incorporate the United States' comments and submit the revised procedure to the United States for review and approval within ten days of receipt of the United States' comments. Within ten days of the United States' approval, the Sheriff shall adopt and implement the approved Grievance procedure.
2. Effective Communication Policy For Individuals Who Are Deaf, Speech Impaired, Or Have Hearing Loss:
   1. The Sheriff, consistent with his custodial role, shall take appropriate steps to ensure that communications with inmates with disabilities are as effective as communications with other inmates. 28 C.F.R. §§ 35.130, 35.160.
   2. Within thirty days of the effective date of this Agreement, the Sheriff will submit a draft Effective Communication Policy For Individuals Who Are Deaf, Speech Impaired, Or Have Hearing Loss to the United States for review and approval. 28 C.F.R. §§ 35.130, 35.160. The United States shall review the draft Policy and provide its comments to the Sheriff. The Sheriff shall incorporate the United States' comments and submit the revised Policy to the United States for review and approval within ten days of receipt of the United States' comments. Within forty-five days of the United States' approval, the Sheriff shall adopt and implement the approved Effective Communication Policy.
   3. The Effective Communication Policy shall provide, at a minimum, the following:
      1. A requirement to provide appropriate auxiliary aids and services to all inmates who are deaf, have hearing loss, or have speech disabilities on an as-needed basis, twenty-four hours per day, seven days a week. 28 C.F.R. §§ 35.130, 35.160.
      2. A requirement that appropriate auxiliary aids and services, including qualified sign language interpreters, are provided in all jail services, programs, and activities, including, but not limited to: the intake process, the classification process, medical evaluations and serious medical encounters, disciplinary hearings, religious services, and other detention, rehabilitative, or educational programs, services, or activities provided to inmates. 28 C.F.R. §§ 35.130, 35.160.
      3. A requirement to provide inmates who are deaf or have hearing loss access to a Telecommunications Device for the Deaf (TDD) or Teletypewriter (TTY) and the New York Relay System, or video relay service (VRS), to make telephone calls. Telephone calls placed using a TTY take longer than telephone calls placed using standard voice telephone equipment. Accordingly, the Sherriff will allow inmates using a TTY at least three times the length of time permitted for voice communication where the jail imposes time limitations on inmates using the telephone. 28 C.F.R. §§ 35.130, 35.160.
      4. A requirement to ensure that hearing aids are replaced in a timely manner and batteries required for hearing aids are replenished and installed within 24 hours to ensure effective communication. 28 C.F.R. §§ 35.130, 35.160.
      5. Training: Within twenty days of the United States' approval of the Effective Communication Policy For Individuals Who Are Deaf, Speech Impaired, Or Have Hearing Loss, the Sheriff will train its current employees regarding the Effective Communication Policy adopted pursuant to this Agreement in order to ensure effective communication to inmates who are deaf or hard of hearing. The Sheriff will provide this training to new employees within ninety days of their start date. The Sheriff will distribute the Policy during the training and the training shall include instruction on the use of auxiliary aids and services. Training shall prescribe the steps to be taken to ensure effective communication of both routine and unplanned activities, including effective communication with inmates who are deaf or have hearing loss when such inmates are asleep. 28 C.F.R. §§ 35.130, 35.160.
3. Effective Communication Policy For Individuals Who Are Blind Or Have Low Vision:
   1. The Sheriff, consistent with his custodial role, shall take appropriate steps to ensure that communications with inmates with disabilities are as effective as communications with other inmates. 28 C.F.R. §§ 35.130, 35.160.
   2. Within thirty days of the effective date of this Agreement, the Sheriff will submit a draft Effective Communication Policy For Individuals Who Are Blind Or Have Low Vision to the United States for review and approval. 28 C.F.R. §§ 35.130, 35.160. The United States shall review the draft Policy and provide its comments to the Sheriff. The Sheriff shall incorporate the United States' comments and submit the revised Policy to the United States for review and approval within ten days of receipt of the United States' comments. Within forty-five days of the United States' approval, the Sheriff shall adopt and implement the approved Effective Communication Policy.
   3. The Effective Communication Policy shall provide, at a minimum, the following:
      1. A requirement to provide appropriate auxiliary aids and services to all inmates who are blind or have low vision. 28 C.F.R. §§ 35.130, 35.160.
      2. A requirement that inmates who are blind or have low vision have access to all services, programs, and activities provided to the general population, including, but not limited to, religious services, and any other detention, rehabilitative, or educational program provided to inmates. 28 C.F.R. §§ 35.130, 35.160.
      3. Training: Within twenty days of the United States' approval of the Effective Communication Policy For Individuals Who Are Blind Or Have Low Vision, the Sheriff will train its current employees regarding the Policies adopted pursuant to this Agreement in order to ensure effective communication with inmates who are blind or have low vision. The Sheriff will provide this training to new employees within ninety days of their start date. The Sheriff will distribute the Policy during the training. The training shall prescribe the steps to be taken to ensure effective communication of both routine and atypical activities. 28 C.F.R. §§ 35.130, 35.160.
4. Within twenty days of the United States' approval of the Grievance and the Effective Communication Policies, the Sheriff shall post in all housing areas, intake, and medical units, a notice to inmates announcing adoption and implementation of the Grievance and Effective Communication Policies and describing their requirements. The Sheriff shall amend the Inmate Handbook to describe the Grievance and Effective Communication Policy requirements.

VI. INDEPENDENT LICENSED ARCHITECT

1. Within six months of the effective date of this Agreement, the County will provide the United States with a written status report, including any supporting documentation, delineating all steps taken during the reporting period to comply with each substantive provision of this Agreement. Thereafter, for the duration of this Agreement, the County will send a status report every six months to:

   Disability Rights Section
   Civil Rights Division
   U.S. Department of Justice
   1425 New York Ave., NW
   Washington, DC 20005
   [DJ # 204-53-125]

2. The United States shall have full and complete access to the Erie County Jail, jail records, inmate records, and inmates, with advance written notice. The United States shall have the right to conduct confidential interviews with inmates.

VIII. IMPLEMENTATION AND TERMINATION

1. The County and Sheriff shall ensure that all relevant current and future staff, including contractors, understand and implement the terms of this Agreement.
2. The County and Sheriff shall implement all reforms necessary to effectuate the terms of this Agreement and shall revise any policy, procedure, or practice, as necessary, to effectuate the terms of this Agreement.
3. Within three months of the Effective Date of this Agreement, the Sheriff will identify and have a standing contract with sources of qualified sign language and oral interpreters. The Sheriff shall maintain a contract for sign language interpreter providers.
4. For all training required by this Agreement, the Erie County Sheriff's Office shall submit written reports to the United States within thirty days of any training provided pursuant to this Agreement. The written reports will document the date and time of the training; a copy of the training agendas; the names and titles of the employees who attended the training; and copies of the training sign-in sheets.
5. The County and the Sheriff each agree that it shall not retaliate against any person that filed or may file a complaint, provided information or assistance, or participated in any other manner in an investigation or proceeding relating to this Agreement.
6. This Agreement shall remain in effect for four (4) years from the effective date of the Agreement.
7. The County and the Sheriff shall maintain sufficient records to document its compliance with all of the requirements of this Agreement. During the period of this Agreement, the County and the Sheriff shall maintain any and all records required by or developed under this Agreement.
8. If the County or the Sheriff fails to implement the terms of this Agreement, the United States reserves the right to institute a civil action to enforce this Agreement and the ADA and obtain remedies for the violations. Each party will bear the costs of any attorney fees associated with this matter.
9. This Agreement shall be binding on all successors, assignees, employees, agents (including contractors) and all those working for or on behalf of the County or the Sheriff.
10. Each of the parties to this Agreement shall bear its own costs and expenses associated with, or arising from, its performance of obligations under this Agreement.
11. The parties may jointly agree, in writing, to modify the terms of this Agreement.
12. No person or entity is intended to be a third-party beneficiary of the provisions of this Settlement Agreement for purposes of any civil, criminal, or administrative action or proceeding. Accordingly, no person or entity may assert any claim or right as a beneficiary or protected class member under this Agreement. This Agreement is not intended to expand the right of any person or entity who seeks relief against the County, the Sheriff, or officials or employees of the County or the Sheriff. This Agreement may not be used as evidence of liability in any proceeding.

ATTACHMENT B

Certification of ADA Compliance

I, [insert name], in my capacity as an Independent Licensed Architect, retained by Erie County and approved by the United States, pursuant to Paragraph VI of the Settlement Agreement executed between the United States and Erie County and the Erie County Sherriff’s Department on _________, 2014, hereby certify, to the best of my knowledge, information, and belief, that the following element identified below is in compliance with the physical accessibility requirements of the 2010 ADA Standards for Accessible Design, 28 C.F.R. § 35.104 (“2010 Standards”) and the terms of the Settlement Agreement executed between the United States and Erie County and the Erie County Sheriffs’ Department.

Element Identified referenced in the Erie County Jail ADA Barriers Report, Attachment A to the Settlement Agreement:

Description of Element:

Location of Element:

___________________________________
Printed Name of Independent Licensed Architect

____________________________________
Signature of Independent Licensed Architect

____________________________________
Date