SETTLEMENT AGREEMENT BETWEEN

 

THE UNITED STATES OF AMERICA

 

AND

 

JEFFERSONVILLE, INDIANA

 

UNDER THE AMERICANS WITH DISABILITIES ACT

 

DJ 204-26S-152

 

 

 

SCOPE OF THE INVESTIGATION

 

            This matter was initiated by a complaint filed under title II of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12131-12134, with the United States Department of Justice ("Department") against the City of Jeffersonville, Indiana ("City").  The complaint was received by the Civil Rights Division of the Department of Justice, under the authority of 28 C.F.R. Part 35, Subpart F.  The complainant alleges that the City failed to provide an assisted listening device at City Council meetings and does not have an effective communication policy in place for the Jeffersonville Police Department.

 

            Because the City receives financial assistance from the Department of Justice, the investigation was also conducted under the authority of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Department's implementing regulation, 28 C.F.R. Part 42, Subpart G.  The Department expanded the scope of the investigation to include the City's compliance with the following title II requirements:

 

C           to conduct self-evaluations of their 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 City'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 City's ADA responsibilities, 28 C.F.R. § 35.107(a);

 

C           to establish a grievance procedures 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 their entirety, they are readily accessible to and usable by individuals with disabilities, 28 C.F.R. § 35.150, by:

 

• delivery of services, programs, or activities in alternate ways, including, for example, redesign of equipment, reassignment of services, assignment of aides, home visits, or other methods of compliance or, if these methods are not effective in making the programs accessible,

• physical changes to buildings (required to have been made by January 26, 1995), in accordance with the Department's title II regulation, 28 C.F.R. § 35.151, and the ADA Standards for Accessible Design (Standards), 28 C.F.R. pt. 36, App. A, or the Uniform Federal Accessibility Standards (UFAS), 41 C.F.R. § 101-19.6, App. A.

 

C           to ensure that facilities for which construction or alteration commenced 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 by, among other things, furnishing auxiliary aids and services when necessary, 28 C.F.R. §35.160;

 

C           to communicate through use of a teletypewriter ("TTY"), or other equally effective telecommunications system, with individuals who have hearing or speech impairments, 28 C.F.R. §35.161;

 

C           to provide direct access via TTY or computer to telephone emergency services, including 911 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 City's accessible services, activities, and facilities, 28 C.F.R. §35.163(a); and

 

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

 

            The Department's program access review covered those of the City's programs, services, and activities that operate in the following facilities:

 

$                                  Jeffersonville Police Department

$                                  Parks and Recreation Department

$                                  Animal Shelter

$                                  City Parking Facilities

$                                  Aquatic Center

$                                  Meijers Field

$                                  Ellis Community Center

$                                  Nachand Fieldhouse

$                                  Warder Park

$                                  City-County Building

 

                                                                JURISDICTION

 

1.         The Department is authorized under 28 C.F.R. Part 35, Subpart F, to investigate the complaint in this matter to determine the compliance of the City with title II of the ADA and the Department's implementing title II 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. section 12133, to bring a civil action enforcing title II of the ADA should the Department fail to secure voluntary compliance pursuant to Subpart F. 

 

2.         The Department is authorized under 28 C.F.R. Part 42, Subpart G, to investigate the complaint in this matter to determine the City'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, the Attorney General is authorized, under 29 U.S.C. § 794 and 28 C.F.R. sections 42.530, 42.108-110, to suspend or terminate financial assistance to the City provided by the Department of Justice should the Department fail to secure voluntary compliance pursuant to Subpart G or bring a civil suit to enforce the rights of the United States under applicable federal, state, or local law.

 

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

 

4.         The parties to this Agreement are the United States of America and the City of Jeffersonville, Indiana.

 

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

 

6.         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."

 

ACTIONS TAKEN BY CITY

 

7.         In 1992, the City conducted a self-evaluation to develop a transition plan to ensure that the programs offered at City facilities are readily accessible to and usable by individuals with mobility impairments.  Following the self-evaluation, the City increased the number of designated accessible parking spaces at City-owned buildings, installed curb ramps, and added a ramp to achieve accessibility at Warder Park.

 

8.         The City has named an ADA Coordinator as part of its professional staff.

 

9.         The City has provided an electronic lift at the Aquatic Center swimming pool so that people with disabilities are able to enter and leave the pool.  The City has also provided a roll-in slope into the "kiddie pool" so that people with mobility impairments can easily use the "kiddie pool".

 

REMEDIAL ACTION

 

NOTIFICATION

 

10.       Within two months of the effective date of this Agreement, the City 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 City; 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.

 

11.       Within three months of the effective date of this Agreement, and on yearly anniversaries of this Agreement until it expires, the City 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 City's accessible programs, services, and activities.

 

GRIEVANCE PROCEDURE

 

12.       Within three months of the effective date of this Agreement, the City 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

 

13.       Within two months of the effective date of this Agreement, the City 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 interpreters, real-time transcription services, and documents in alternate formats (Braille, large print, cassette tapes, etc.).

 

14.       The City will publicize its central TTY telephone number on the same basis as its voice number, through its inclusion on City letterhead that is ordered, City publications that appear, and the first reprinting of the local telephone book that takes place after the effective date of this Agreement.  Such publication will include an explanation that the TTY number functions as a TTY number for all City offices and will be reiterated in subsequent publications and local telephone book editions for the life of this Agreement.

 

15.       Within two months of the effective date of this Agreement, the City will implement and report to the Department its written procedures to ensure that TTY calls are returned by the appropriate City official by TTY on the same day as the call is received.  If the caller's questions or concerns cannot be handled promptly, the procedures will require a City employee to communicate with the caller on the same day in order to establish a time frame for the call-back.

 

16.       The City will take steps to ensure that all appropriate employees are trained and practiced in using a TTY and the Indiana Relay Service to make and receive calls and that its TTY's are maintained in good working order through test calls every six months for the life of this Agreement.

 

LAW ENFORCEMENT AND EFFECTIVE COMMUNICATION

 

17.       Within two months of the effective date of this Agreement, the City will adapt for its own use and implement the Jeffersonville Police Department Policy Statement on Effective Communication with People Who are Deaf or Hard of Hearing [Attachment C] and distribute to all police department officers the Guide for Law Enforcement Officers When in Contact with People Who are Deaf or Hard of Hearing [Attachment D].

 

18.       Within two months of the effective date of this Agreement, the City will contract with one or more local qualified oral/sign language interpreter agencies to ensure that the interpreting services will be available on a priority basis, twenty-four hours per day, seven days a week, or make other appropriate arrangements (such as contracting directly with or hiring qualified interpreters).

 

19.       Within one month of the effective date of this Agreement, the City will ensure that the police station is equipped with a working TTY to enable persons who are deaf, hard of hearing, or who have speech impairments to make outgoing telephone calls.

 

EMERGENCY MANAGEMENT PROCEDURES AND POLICIES

 

20.       If the City 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 City will ensure that the other entity complies with the following provisions on its behalf.

 

21.       Within three months of the effective date of this Agreement, the City 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).

 

22.       Within three months of the effective date of this Agreement, the City 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 City 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 City plan should address accessible transportation needs for persons with disabilities.

 

23.       Within three months of the effective date of this Agreement, the City 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.

 

24.       Within three months of the effective date of this Agreement, the City 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).

 

25.       Within three months of the effective date of this Agreement, the City 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.

 

26.       Some of the of the City'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.

 

27.       Within three months of the effective date of this Agreement, the City will survey its shelters to determine which shelters have parking, exterior routes, entrances, interior routes to the shelter area, and toilet rooms serving the shelter areas that comply with the Standards.

 

28.       Within six 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 City will identify and widely publicize to the public and to persons with disabilities and the organizations that serve them the most accessible emergency shelters.

 

29.       To the extent that the City 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, the City 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

 

30.       Within three months of the effective date of this Agreement, the City 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.

 

31.       Within three months of the effective date of this Agreement, the City 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 two years of the effective date of this Agreement, the City 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.

 

32.       Beginning no later than three months after the effective date of this Agreement, the City 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.

 

33.       Within three months of the effective date of this Agreement, the City 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 two years of the effective date of this Agreement, the City 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.

 

34.       Beginning no later than three months after the effective date of this Agreement, the City 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

 

35.       Within 1 month of the effective date of this Agreement, and on subsequent anniversaries of the effective date of this Agreement, the City 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 City (Internet Personnel) the technical assistance document, "Accessibility of State and Local Government Websites to People with Disabilities," which is Attachment E to this Agreement (it is also available at www.ada.gov/websites2.htm).

 

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

 

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

 

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

 

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

 

21.       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

 

22.       Periodically (at least annually) enlist disability groups to test its pages for ease of use.

 

PHYSICAL CHANGES TO FACILITIES

 

37.       The elements or features of the City's facilities that do not comply with the Standards, including those listed in Attachments F, G, H, and I, prevent persons with disabilities from fully and equally enjoying the City'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.

 

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

 

39.       Within three months of the effective date of this Agreement, the City 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.

 

40.       Newly Constructed Facilities:  In order to ensure that the following spaces and elements in City facilities, for which construction was commenced after January 26, 1992, are readily accessible to and usable by persons with disabilities, the City will take the actions listed in Attachment F within one year of the effective date of this Agreement.

 

41.       Altered Facilities:  In order to ensure that the following spaces and elements in City facilities, for which alterations commenced after January 26, 1992, are readily accessible to and usable by persons with disabilities, the City will take the actions listed in Attachment G within eighteen months of the effective date of this Agreement.

 

42.       Program Access in City Existing Facilities:  In order to ensure that each of the City'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 City will take the actions listed in Attachment H within two years of the effective date of this Agreement.

 

PROGRAM MODIFICATIONS

 

 

43.       Access to City Programs Housed in Others' Facilities:  In order to ensure that the City's programs, services, and activities that are the subject of this Agreement and that are operated by the City 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 City will take the actions listed in Attachment I.

 

MISCELLANEOUS PROVISIONS

 

44.       Except as otherwise specified in this Agreement, at yearly anniversaries of the effective date of this Agreement until it expires, the City will submit written reports to the Department summarizing the actions the City 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.

 

45.       Throughout the life of this Agreement, consistent with 28 C.F.R. § 35.133(a), the City 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).

 

46.       Within six months of the effective date of this Agreement, the City will develop or procure a two-hour training program on the requirements of the ADA and appropriate ways of serving persons with disabilities.  The City 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.

 

47.       Within one year of the effective date of this Agreement, the City will deliver its training program to all City employees who have direct contact with members of the public.  At the end of that period, the City 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

 

48.       If at any time the City 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.

 

49.       The Department may review compliance with this Agreement at any time.  If the Department believes that the City 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 City 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 City, 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.

 

50.       For purposes of the immediately preceding paragraph, it is a violation of this Agreement for the City 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.

 

51.       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.

 

52.       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 City or the Department on request.

 

53.       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 City's continuing responsibility to comply with all aspects of the ADA and section 504 of the Rehabilitation Act.

 

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