SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA AND
THE HAWAII DEPARTMENT OF PUBLIC SAFETY
DJ No. 204-21-88

Press Release

This settlement agreement is entered into between the United States of America and the Hawaii Department of Public Safety (HDPS).

I. BACKGROUND

1. This Agreement resolves the United States’ investigation of HDPS for alleged discrimination against individuals with a disability in violation of Title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12131–12134, and its implementing regulation, 28 C.F.R. Part 35.
2. The United States initiated this investigation after receiving complaints from inmates with disabilities at Hale Nani Correctional Facility (Hale Nani), a minimum-security HDPS facility for sentenced inmates that serves as a furlough program site.  These inmates alleged that HDPS excluded inmates with mobility disabilities from participating in its furlough program because of their disabilities, thereby delaying their parole and extending the terms of their imprisonment.  The inmates also alleged that Hale Nani is inaccessible to inmates with mobility disabilities.  Thereafter, the United States expanded its investigation to review the accessibility of the Women’s Community Correctional Center (WCCC), Halawa Correctional Facility (HCF), Oahu Community Correctional Center (OCCC), and Waiawa Correctional Facility (WCF).
3. Based on the United States’ investigation of HDPS’s programs, services, activities, and facilities, the United States has concluded that HDPS excluded qualified individuals with mobility disabilities from its furlough program, or participation therein, by reason of their disabilities in violation of Title II of the ADA.  42 U.S.C. § 12132; 28 C.F.R. § 35.130.
4. Based on the review of Hale Nani, WCCC, HCF, OCCC, and WCF and their programs, services, activities, and facilities, the United States has concluded that Hale Nani, WCCC, HCF, OCCC, and WCF contain architectural and programmatic barriers to access for persons with disabilities and that qualified individuals with disabilities are, by reason of such disabilities, excluded from participation in or are denied the benefits of many of HDPS’s programs, services, or activities or are subjected to discrimination in violation of Title II of the ADA. 42 U.S.C. § 12132; 28 C.F.R. §§ 35.104, 35.149–35.152.
5. HDPS denies all allegations made by the complainants and the United States, but the United States and HDPS agree that it is in the parties’ best interests, and the United States believes that it is in the public interest, to fully and finally resolve this matter on mutually agreeable terms without resorting to protracted litigation. 

SETTLEMENT TERMS

A. Legal Prerequisites & Definitions

6. Title II 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.  The term “qualified individual with a disability” means “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.”  42 U.S.C. § 12131(2). 
7. The United States Department of Justice is authorized to determine HDPS’s compliance with Title II and its implementing regulation.  28 C.F.R. pt. 35, subpt. F.  Where appropriate, the United States Department of Justice may seek voluntary resolution.  28 C.F.R. §§ 35.172(c), 35.173(b).  The Attorney General is also authorized to bring a civil action to enforce Title II.  42 U.S.C. § 12133.
8. The term “mobility disabilities” refers to mobility impairments that substantially limit one or more major life activities, including walking and standing.  42 U.S.C. § 12102(1)(A)–(2)(A).
9.  The term “HDPS” refers to the Hawaii Department of Public Safety Office, including the Deputy Director for Corrections and all offices and divisions overseen by that Office, the Offender Reentry Commission and Office, and the Civil Rights Compliance Office and their officers, employees, agents, or contractors who are wholly or partially responsible for the custody, oversight, and care of inmates confined at the HDPS.  HDPS is a “public entity” as defined by Title II.  42 U.S.C. § 12131(1)(A), (B).
10. The term “new construction” shall mean each facility or part of a facility constructed by, on behalf of, or for the use of HDPS where the construction commenced after January 26, 1992.  28 C.F.R. § 35.151(a).
11. The term “alteration” means a change to an HDPS facility or part of a facility that affects or could affect the usability of the facility.  28 C.F.R. § 35.151(b).  

B. General Equitable Relief

12. General Nondiscrimination Obligations:  HDPS and its officers, employees, agents, successors, and assigns, and all other persons in active concert or participation with them, will not discriminate on the basis of disability, including mobility disabilities, in HDPS’s services, programs, or activities, and will comply with all requirements of Title II of the ADA, 42 U.S.C. §§ 12131–12134, and its implementing regulation, 28 C.F.R. Part 35.  HDPS’s Title II obligations include, but are not limited to, the following:
1. HDPS shall not discriminate against or exclude qualified inmates with mobility disabilities from participation in, or deny such inmates the benefits of, HDPS’s services, programs, or activities, on the basis of the inmates’ disabilities, 42 U.S.C. § 12132; 28 C.F.R. § 35.130(a);
2. HDPS shall not, on the basis of disability, deny qualified inmates with mobility disabilities the opportunity to participate in or benefit from HDPS’s aids, benefits, or services, 42 U.S.C. § 12132; 28 C.F.R. § 35.130(b)(1)(i);
3. HDPS shall not, on the basis of disability, provide aids, benefits, or services to qualified inmates with mobility disabilities that are unequal to, or different or separate from, those afforded to inmates who do not have disabilities, unless different or separate services are necessary to provide such inmates with disabilities benefits, aids, or services that are as effective as those provided to others, 42 U.S.C. § 12132; 28 C.F.R. § 35.130(b)(1)(ii), (iv);
4. HDPS shall reasonably modify its policies, practices, and procedures where necessary to avoid discrimination on the basis of disability unless HDPS demonstrates that such modifications would fundamentally alter the nature of its services, programs, or activities, 42 U.S.C. § 12132; 28 C.F.R. § 35.130(b)(7);
5. HDPS shall not impose or apply eligibility criteria that screen out or tend to screen out inmates with mobility disabilities from fully and equally enjoying HDPS’s services, programs, or activities, unless HDPS demonstrates that such criteria is necessary for its provision of those services, programs, or activities, 42 U.S.C. § 12132; 28 C.F.R. § 35.130(b)(8); and
6. HDPS shall ensure that its facilities are accessible to and usable by inmates with disabilities and shall not exclude such inmates from participation in, or deny them the benefits of, its services, programs, or activities because its facilities are inaccessible or unusable by inmates with disabilities, 42 U.S.C. § 12132; 28 C.F.R. §§ 35.149, 35.150, 35.152(b)(1).  HDPS shall ensure that its facilities and portions of its facilities constructed or altered after January 26, 1992 comply with ADA design standards.  28 C.F.R. §§ 35.151, 35.104.

C. Remedial Relief – Furlough Program

13. Written Furlough Policies, Practices, and Procedures:  Within one hundred twenty (120) days, HDPS shall revise all statewide and facility-specific furlough, medical clearance, inmate classification, inmate screening, and other relevant policies, procedures, and practices, including HDPS’s Inmate Furlough Program Policy, to bring such policies, procedures, and practices into compliance with this Agreement and Title II of the ADA.  Specifically:
1. HDPS will revise all furlough-related policies to provide that all qualified inmates with mobility disabilities will be permitted to participate in the furlough program, including but not limited to work furlough.  HDPS will ensure that inmates with mobility disabilities are given a range of potential work furlough programming, including work assignments with varying physical requirements (i.e., from sedentary clerical tasks to manual labor).  If an inmate encounters barriers to participation because of a mobility disability, HDPS will conduct an individualized assessment to determine whether there are reasonable accommodations or modifications that would permit the inmate to participate in work furlough, i.e., perform the essential functions of the job.  HDPS will provide such inmates with the reasonable accommodations or modifications necessary to ensure that these inmates can participate unless HDPS establishes that such an accommodation or modification constitutes a fundamental alteration.  The HDPS Health Status Classification Report (HSCR) shall not be used to determine whether or not an inmate is eligible for any furlough program.
2. HDPS will revise all furlough-related policies to provide that qualified inmates with mobility disabilities whose disability prevents them from participating in work furlough are entitled to participate in other forms of furlough for which they are otherwise qualified, including those forms of furlough HDPS has previously limited to inmates who participate in work furlough.  HDPS will also revise all furlough-related policies to provide which forms of furlough are available at each facility and to state that all furlough facilities offer at least one form of furlough other than work furlough.  If an inmate encounters barriers to participation in other furlough programs because of a mobility disability, HDPS will conduct an individualized assessment to determine whether there are reasonable accommodations or modifications that would permit the inmate to participate.  HDPS shall provide such inmates with the reasonable accommodations or modifications necessary to ensure that these inmates can participate unless HDPS establishes that such an accommodation or modification constitutes a fundamental alteration. 
3. HDPS will revise its furlough and parole-related policies to provide that HDPS will inform the Hawaii Parole Authority (HPA) through Initial Prescriptive Plans, Prescriptive Plan Updates, and any other appropriate documents of any situations in which an inmate’s mobility disability inhibited that inmate’s participation in any recommended programming while in HDPS custody.  HDPS will also revise its furlough- and parole-related policies to establish a notification procedure for the communication of this information.
4. Within sixty (60) days, HDPS shall send its proposed draft policies, practices, and procedures revised pursuant to this Paragraph to the United States for its approval, not to be unreasonably withheld.  The United States shall review and provide comments on HDPS’s proposed revisions.  The United States may identify additional related policies, practices, and procedures that must be revised pursuant to this Paragraph. 
5. Within sixty (60) days of the United States’ final approval of all policies, practices, and procedures revised pursuant to this Paragraph, HDPS shall implement them, including by distributing copies to all HDPS employees and contractors whose work may be affected by such policies, practices, or procedures.  For the duration of this Agreement, HDPS shall, within thirty (30) days of the appointment or retention of such an HDPS employee or contractor, provide that individual with copies of these policies.

D. Remedial Relief – ADA Procedures and Notice

14. Notice:  Within thirty (30) days, HDPS shall post the amended “Notice Under the Americans with Disabilities Act” (Notice), attached as Appendix A, in inmate common areas at each facility.  HDPS shall maintain these postings in a legible format and shall also provide appropriate translations of this Notice to inmates who require such translations and orally advise inmates with visual impairments or limited reading capabilities of the contents of the Notice during such inmates’ intake.  HDPS shall inform HPA about its revised ADA policies and procedures so that information can be incorporated into a revised Parole Handbook, including information described in Paragraph 13, the identity and general responsibilities of the Statewide HDPS ADA Coordinator and Facility ADA Coordinators described in Paragraphs 15–16, and the ADA Grievance Procedure described in Paragraph 17 within ninety (90) days of the United States’ final approval of such policies.
15. Designation of Statewide HDPS ADA Coordinator:  On August 7, 2017, HDPS designated its Statewide HDPS ADA Coordinator.  Throughout the term of this Agreement, HDPS shall continue to designate at least one employee in HDPS headquarters to serve as the Statewide HDPS ADA Coordinator.  This individual shall coordinate HDPS’s efforts to comply with and carry out its responsibilities under Title II and this Agreement.  This individual shall be responsible for (1) ensuring that HDPS’s facilities are readily accessible to and usable by inmates with disabilities, (2) ensuring that HDPS provides inmates with disabilities equal opportunity to participate in and benefit from its services, programs, and activities, and (3) investigating and assisting in the resolution of inmates’ ADA complaints or grievances.  The Statewide HDPS ADA Coordinator shall also maintain records regarding the disposition of each complaint or grievance.
16. Designation of Facility ADA Coordinators:  On August 11, 2017, HDPS designated ADA Coordinators in each of its correctional facilities.  Throughout the term of this Agreement, HDPS shall continue to designate at least one employee in each of the HDPS’s correctional facilities to serve as the facility’s ADA Coordinator.  Each Facility ADA Coordinator will coordinate his or her facility’s efforts to comply with and carry out HDPS’s responsibilities under Title II and this Agreement.
17. Establishment of ADA Grievance Procedure:  Within sixty (60) days, HDPS shall submit to the United States a proposed ADA Grievance Procedure for inmates, which will be subject to approval by the United States, not to be unreasonably withheld.  HDPS will consider any changes to the procedure suggested by the United States.  Within sixty (60) days of the United States’ approval of an ADA Grievance Procedure and for the duration of this Agreement, HDPS shall adopt and implement the approved ADA Grievance Procedure and ensure that all existing and incoming inmates and HDPS employees and contractors whose work may be affected by the ADA Grievance Procedure are provided with a copy of this Procedure and/or are orally advised of its contents.

E. Compliance

18. ADA Training: HDPS conducted general ADA training for administrative personnel, including administrative personnel from all of its correctional facilities on April 2-5, 2018.  Within one hundred eighty (180) days of the United States’ approval of the policies described in Paragraphs 13 and 17 of this Agreement, and every twenty four (24) months thereafter for the term of this Agreement, HDPS will train all employees and contractors involved in the furlough program on the following:  the nondiscrimination requirements of Title II of the ADA; mobility disabilities and potential modifications or accommodations that can facilitate program access; HDPS’s new policies; and the existence and requirements of this Agreement (collectively, ADA Training(s) or Training(s)).
1. Within sixty (60) days of the United States’ approval of the policies described in Paragraphs 13 and 17, HDPS will submit to the United States the proposed curriculum for the ADA Training(s), as well as the name(s), qualifications (including resume(s)), and contact information of the individual(s) who will conduct the Training(s).  HDPS’s choice of individual(s) who will conduct the Training(s) and the proposed curriculum will be subject to approval by the United States, not to be unreasonably withheld. 
2. HDPS will maintain attendance logs for the duration of this Agreement reflecting the names and titles of attendees and dates of each session of the Training(s) conducted under this Agreement.
3. For persons who do not attend the ADA Training(s) on a designated training date as required under this Agreement (for instance, because the person was on leave or began employment with HDPS after the designated training date), HDPS will provide the same Training(s) in person or by other means to such persons within sixty (60) days after the individual’s commencement of employment by HDPS or within sixty (60) days of the individual’s return to employment (for example, because of leave).
4. All trainings conducted after the initial training may either be provided live or via web-based tutorial, or any other mode capable of conveying the ADA topics listed above.  If these subsequent trainings are not provided live, the trainer(s) meeting the requirements of Paragraph 18(a) shall be accessible to directly answer any questions a participant may have after each training.
19. Recordkeeping:  For the term of this Agreement, HDPS will preserve all records related to the Agreement.  Such documents include, but are not limited to, policies, practices, and procedures revised pursuant to Paragraph 13; complaints or grievances submitted pursuant to the ADA Grievance Procedure established by Paragraph 17; and training materials and attendance logs created pursuant to Paragraph 18.  HDPS will, with thirty (30) days’ notice, provide copies of these records to the United States upon the United States’ request.
20. Reporting Requirements:  Within one hundred twenty (120) days and every six (6) months thereafter, HDPS will submit a report to the United States detailing HDPS’s compliance efforts under this Agreement.  The report will include:
1. Written confirmation that HDPS has met the requirements of Paragraphs 12 through 19 of this Agreement;
2. A copy of all policies, procedures, and practices revised pursuant to Paragraphs 13 and 17 of this Agreement;
3. A copy of each facility’s version of the Notice form and the revised Parole Handbook described in Paragraph 14 of this Agreement;
4. Dates and attendance logs of ADA Training(s);
5. A report of the name(s) of any inmates with known mobility disabilities who are or were housed in a transitional or community classification facility in the period preceding the Report, the actual or anticipated dates of such inmates’ housing in such a facility, a detailed description of the inmate’s furlough eligibility and participation, and, if applicable, a detailed description of any reasonable accommodations or modifications requested by or provided to the inmate.  If HDPS denied the inmate a reasonable accommodation or modification, a detailed description of the reason(s) for such denial; and
6. A report of any formal or informal grievances or complaints HDPS has received pursuant to its standing grievance process from or regarding individuals with disabilities or to the ADA Grievance Procedure described in Paragraph 17.  The catalog will identify the complainant’s name, the affected individual’s name (if different from the name of the complainant), the subject matter of the grievance, and any responses or actions taken by HDPS in response to the grievance.  HDPS will also preserve all such written complaints or grievances received in any format and written reports of such oral complaints, and copies of HDPS’s response(s) to such complaint or grievance.

F. Remedial Relief – Architectural and Programmatic Barriers

21. Within twenty-four (24) months, HDPS shall complete the modifications to the men’s unit at Hale Nani specified below, using the 2010 Standards for Accessible Design, 28 C.F.R. § 35.104 (2010 Standards).  Specifically, HDPS shall:
1. Provide accessible phones in compliance with § 704 of the 2010 Standards. 
2. Provide an accessible toilet room for inmates in, or in proximity to, all program areas, in compliance with the 2010 Standards, including but not limited to accessible lavatories and urinals in accordance with §§ 309, 603, and 606 of the 2010 Standards.
3. Provide at least one (1) accessible shower in compliance with the 2010 Standards, which shall be a transfer shower as defined by § 608.2.1 or a roll-in shower as defined by either § 608.2.2 or § 608.2.3.  Grab bars, controls, a shower spray unit, and a seat, curb, and enclosure shall comply fully with the 2010 Standards.
22. Throughout the term of this Agreement, HDPS shall maintain its operable features, including its sink and urinal controls in accordance with § 309 of the 2010 Standards and 28 C.F.R. § 35.133(a). 
23. Within thirty-six (36) months and in accordance with the timeline set forth in Appendix B, HDPS shall complete the modifications to WCCC, HCF, OCCC, and WCF as specified in Appendix B, using the 2010 Standards.
24. In addition to the minimum accessibility requirements set forth above in Paragraphs 21–23, HDPS shall provide additional cells, showers, toilet rooms, and tables as necessary, in accordance with the 2010 Standards, to ensure that each inmate with a disability has the same access as non-disabled inmates to the elements necessary to afford the inmate safe, appropriate housing.  This includes, but is not limited to, an adequate number of accessible toilets, lavatories, showers, and tables to meet the needs of the disabled population.  28 C.F.R. § 35.152. 
25. Within six (6) months, HDPS will retain an Independent Licensed Architect as set forth below to assess compliance with Paragraphs 21–23 and any other alteration, addition, or modification made by HDPS during the term of this Agreement.
1. HDPS will retain an Independent Licensed Architect knowledgeable about the architectural accessibility requirements of the ADA.  The retention of this Independent Licensed Architect will be without regard to outcome and must be approved by the United States, which will not unreasonably withhold approval.  The Independent Licensed Architect must act independently to certify whether remediation of the violations identified in Paragraphs 21–23 and any other alterations, additions, or modifications made by HDPS to the men’s unit at Hale Nani and WCCC, HCF, OCCC, and WCF during the term of this Agreement comply with the applicable accessibility standards pursuant to 28 C.F.R. § 35.151(c) and the Appendix to 28 C.F.R. § 35.151(c).  These requirements shall be included in the Independent Licensed Architect’s scope of work. 
2. The Independent Licensed Architect will conduct semi-annual inspections of HDPS’s correctional facilities in order to ensure compliance with Paragraphs 21–23 of this Agreement.  The Independent Licensed Architect will impartially prepare written reports with photographs identifying that the violation has been remediated, will use the certification form at Appendix C, and will submit such reports to HDPS and the United States.  The Independent Licensed Architect will be considered a neutral inspector for purposes of issuing certifications of compliance and will be reasonably available to the United States to discuss reports, photographs, and certifications. 
3. The United States may also, in its discretion, provide technical assistance to the Independent Licensed Architect throughout the term of this Agreement.  Upon request by the United States, HDPS will provide prior notice to the United States of inspections by the Independent Licensed Architect to allow representatives of the United States to be present.
4. HDPS will submit Independent Licensed Architect certifications (Appendix C) along with its reporting requirements as set forth in this Agreement.

G. Monetary Relief

26. HDPS agrees to pay a total of $45,000 to compensate the aggrieved persons identified in Paragraph 2:  $24,000 to complainant D.B., $12,000 to complainant P.M., and $9,000 to complainant A.L.  This payment is conditioned on the actual receipt of funds to be appropriated by the 2019 Legislature of the State of Hawaii, and that those funds shall be paid within a reasonable time after such appropriation.
27. Within thirty (30) days of the availability of the funds for payment, the United States shall send to each aggrieved person described in Paragraph 26 of this Agreement a copy of this signed Agreement, along with a Release of Claims Form, attached as Appendix D. 
28. Within seven (7) days of HDPS’s receipt of a completed Release of Claims Form from any of these individuals, HDPS will pay and deliver to such individual a check in an amount agreed to in Paragraph 26.

H. Miscellaneous Provisions

29. Delivery of Reporting Materials:  All materials sent to the United States pursuant to this Agreement shall be sent by e-mail to christine.kim2@usdoj.gov (or to any other e-mail address that the United States designates during the term of this Agreement) or to the following address by Federal Express, delivery prepaid: 

    Disability Rights Section
    Re:  HDPS, DJ# 204-21-88
    Civil Rights Division
    U.S. Department of Justice
    1425 New York Avenue, N.W., Fourth Floor
    Washington, D.C. 20005.

    The e-mail or cover letter shall include a subject line referencing HDPS and DJ# 204-21-88.

30. Enforcement:  The United States may review compliance with this Agreement at any time.  HDPS will cooperate fully with the United States’ efforts to monitor compliance with this Agreement, including but not limited to, providing the United States with reasonably requested information covered in this Agreement and allowing the United States to interview inmates and to inspect documents and facilities.  After receipt of each report referenced in Paragraphs 20 and 25, the parties will confer to assess HDPS’s compliance with this Agreement.  If the United States believes that HDPS has failed to comply adequately or in a timely manner with any requirement of this Agreement or that any requirement has been violated, the United States will notify HDPS in writing and the Parties will attempt to resolve the issue in good faith.  If the United States is unable to reach a satisfactory resolution of the issue within sixty (60) days of the date it notifies HDPS, the United States may institute a civil action in federal court to enforce this Agreement or to enforce Title II of the ADA based on the allegations described in this Agreement.
31. Titles and Headings:  Titles and other headings contained in this Agreement are included only for ease of reference and shall have no substantive effect.
32. Entire Agreement:  This Agreement, including Appendices A–D, constitutes the entire agreement between the Parties on the matters raised herein and no other statement or promise, written or oral, made by any party or agents of any party, that is not contained in this written Agreement shall be enforceable.
33. Consideration:  In consideration of the terms of this Agreement, the United States agrees to refrain from undertaking further investigation or from filing a civil suit under Title II of the ADA related to the allegations in Paragraphs 2–4, except as provided in Paragraph 30.  The Parties agree and acknowledge that this consideration is adequate and sufficient.  Nothing contained in this Agreement is intended or shall be construed as a waiver by the United States of any right to institute proceedings against HDPS for violations of any statutes, regulations, or rules administered by the United States or to prevent or limit the right of the United States to obtain relief under the ADA.
34. Severability:  If any term of this Agreement is determined by any court to be unenforceable, the other terms of this Agreement shall nonetheless remain in full force and effect.
35. Non-Waiver:  Failure by the United States to enforce any provision or deadline in this Agreement shall not be construed as a waiver of the right of the United States to enforce any deadline or provision of this Agreement.
36. Effective Date:  The Effective Date of this Agreement is the date of the last signature below.  Unless otherwise specified, all time periods designated for an action, including all Completion Dates in Appendix B, run from the Effective Date.
37. Limitation:  This Agreement is limited to resolving claims under Title II of the ADA related to the facts specifically set forth in Paragraphs 2 through 4, above.  Nothing in this Agreement relates to other provisions of the ADA or affects HDPS’s obligations to comply with any other federal, state, or local statutory, administrative, regulatory, or common law obligation, including those relating to nondiscrimination against individuals with disabilities.
38. Extensions:  Any time limits for performance imposed by this Agreement may be extended only by the mutual written consent of the Parties. 
39. Successor Liability:  This Agreement is final and binding on HDPS, its officers, employees, successors, and assigns, including its officers, employees, agents, and any other person under the authority or control of HDPS.
40. Counterparts:  This Agreement may be executed in counterparts, each of which shall be deemed an original, and the counterparts shall together constitute one and the same Agreement, notwithstanding that each Party is not a signatory to the original or the same counterpart. 
41. Authority:  The individuals signing this Agreement represent that they are authorized to do so on behalf of the respective entity for which they have signed.
42. Term:  This Agreement shall remain in effect for a term of three (3) years from its Effective Date.  The term of this Agreement may be extended by mutual written consent of the Parties.
43. Early Termination:  Notwithstanding Paragraph 42, this Agreement will terminate earlier than three years if the Department determines that HDPS has demonstrated durable compliance with Title II of the ADA with respect to the violations outlined in Paragraphs 1–4.
44. Partial Termination:  Notwithstanding Paragraph 43, if the Department determines that HDPS has demonstrated durable compliance with a part of the Agreement and that part is sufficiently severable from the other requirements of the Agreement, the Parties agree to terminate that part of the Agreement.  In determining whether HDPS has demonstrated durable compliance with a part of the Agreement, the Department may assess collectively all the requirements of the Agreement to determine whether the intended outcome of the part has been achieved.
45. Modifications: If at any time HDPS wants 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 United States 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 United States to the proposed modification, the proposed modification will not take effect. The United States' approval will not be unreasonably withheld or delayed.
46. Publicity:  This Agreement and any amendment hereto shall be public documents.  

 

Appendix A: NOTICE OF RIGHTS FOR INMATES WITH DISABILITIES

The Right to a Reasonable Accommodation or Modification

The Hawaii Department of Public Safety (HDPS) is committed to providing individuals with disabilities equal opportunity to access its services, programs, and activities, in accordance with its obligations under the Americans with Disabilities Act (ADA).  If you have a disability, you have a right to request a reasonable modification or accommodation in order to have equal access to HDPS programs, services, and activities.  To comply with the ADA, HDPS will, among other things:

1. Make reasonable modifications to policies, practices, and/or procedures,
2. Remove barriers to access to HDPS programs, services, and activities, and/or
3. Provide auxiliary aids and services. 

HDPS does not need to provide reasonable modifications or accommodations that HDPS can demonstrate would fundamentally alter the nature of its services, programs, or activities.

How to Ask for a Reasonable Modification or Accommodation

If you want or need a reasonable modification or accommodation, ask your case manager, the Facility ADA Coordinator, or any staff member for a request form (Form PSD 8773, Request for Accommodation/Modification).  If you need help filling out the form, you may ask a staff member to assist you.

How to File an ADA Grievance

You have the right to file a grievance related to disability discrimination, including if you are denied a request for reasonable modification or accommodation, in accordance with the HDPS ADA Grievance Procedure.  Statewide ADA Coordinator [INSERT NAME] and your ADA Facility Coordinator [INSERT NAME] will review your grievance and respond accordingly.

YOUR FACILITY ADA COORDINATOR IS:

[INSERT NAME]

APPENDIX B: ARCHITECTURAL AND PROGRAMMATIC BARRIERS AT WCCC, HCF, OCCC, AND WCF

[See attached spreadsheets]

APPENDIX C: CERTIFICATION OF ADA COMPLIANCE

I, [NAME], in my capacity as an Independent Licensed Architect, retained by the Hawaii Department of Public Safety (HDPS) and approved by the United States, pursuant to Paragraph 25 of the Settlement Agreement executed between the United States and HDPS on [DATE], 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, and the terms of the Settlement Agreement executed between the United States and HDPS.
Element Identified in the Settlement Agreement:
Description of Element:
Location of Element:

 

___________________________________
Printed Name of Independent Licensed Architect

____________________________________
Signature of Independent Licensed Architect

____________________________________
Date