SETTLEMENT AGREEMENT BETWEEN

THE UNITED STATES OF AMERICA

AND

NORFOLK COUNTY, MASSACHUSETTS

DJ 204-36-191

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Fact Sheet | Press Release

BACKGROUND

SCOPE OF THE INVESTIGATION

The United States Department of Justice (Department) initiated this matter as a compliance review of Norfolk County (hereinafter “County”), Massachusetts 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. Because the County received financial assistance from the Department of Justice, the review 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 review was conducted by the Disability Rights Section of the Department’s Civil Rights Division and focused on the County’s compliance with the following title II requirements:

• 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;
• to notify applicants, participants, beneficiaries, and other interested persons of their rights and the County’s obligations under title II and the Department’s regulation, 28 C.F.R. § 35.106;
• to designate a responsible employee to coordinate its efforts to comply with and carry out the County’s ADA responsibilities, 28 C.F.R. § 35.107(a);

• to establish a grievance procedure for resolving complaints of violations of title II, 28 C.F.R. § 35.107(b);
• 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. §§ 35.149 -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, 28 C.F.R. §§ 35.150,
• 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. §§ 35.150 and 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.
• 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;
• 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;
• 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;
• to provide information for interested persons with disabilities concerning the existence and location of the County’s accessible services, activities, and facilities, 28 C.F.R. § 35.163(a); and
• 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 alterations commenced after January 26, 1992 - must comply with the ADA’s alterations requirements: Norfolk County Superior Court, Dedham District Court, Registry Building, Stoughton District Courthouse, Wrentham District Courthouse and Brookline District Courthouse.

The Department’s program access review also covered those of the County’s programs, services, and activities that operate in the following additional facilities: Administrative Offices and the President’s Golf Course.

The Department also reviewed the County’s policies and procedures regarding 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 County 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 County 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 Department is authorized under 28 C.F.R. Part 42, Subpart G, to determine the County’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. §§ 42.530 and 42.108-110, to suspend or terminate financial assistance to the County provided by the Department of Justice should the Department fail to secure voluntary compliance pursuant to Subpart G or to bring a civil suit to enforce the rights of the United States under applicable federal, state, or local law.
4. The parties to this Agreement are the United States of America and Norfolk County, Massachusetts.
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 COUNTY

7. Over the past decade, the County has worked toward bringing the following facilities into compliance with the ADA: Norfolk County Superior Court, Dedham District Court, Registry Building, Stoughton District Courthouse, Wrentham District Courthouse, Brookline District Courthouse, County Administration Building, Wollaston Recreational Facility, Norfolk County Agricultural High School and the Quincy District Court. Notwithstanding these efforts, additional compliance steps are necessary.

REMEDIAL ACTION

NOTIFICATION

8. Within two (2) months of the effective date of this Agreement, the County 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 County; 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.
9. Within six (6) months of the effective date of this Agreement, and on yearly anniversaries of this Agreement until it expires, the County will report to the Department its written procedures for providing information for interested persons with disabilities concerning the existence and location of the County’s accessible programs, services, and activities.

GRIEVANCE PROCEDURE

10. Within three (3) months of the effective date of this Agreement, the County 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

11. Within three (3) months of the effective date of this Agreement, the County 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, accessible electronic format (e.g., HTML), etc.).
12. The County will take steps to ensure that appropriate employees are trained and practiced in using the Massachusetts Relay Service to make and receive calls.

EMPLOYMENT

13. Within six (6) months of the effective date of this Agreement, the County 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 County:
• will not discriminate on the basis of disability in its hiring or employment practices;
• 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;
• 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 County’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 County may ask the individual for information necessary to determine if the individual has a disability-related need for the accommodation;
• will maintain any employee’s medical records separate from personnel files and keep them confidential; and
• will make an individualized assessment of whether a qualified individual with a disability meets selection criteria for employment decisions. To the extent the County’s selection criteria have the effect of disqualifying an individual because of disability, those criteria will be job-related and consistent with business necessity.

WEB-BASED SERVICES AND PROGRAMS

14. Within three (3) months of the effective date of this Agreement, and on subsequent anniversaries of the effective date of this Agreement, the County 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 County (Internet Personnel) the technical assistance document, “Accessibility of State and Local Government Websites to People with Disabilities” which is Attachment H to this Agreement (it is also available at www.ada.gov/websites2.htm).
15. Within six (6) months of the effective date of this Agreement, and throughout the life of the Agreement, the County will do the following:
    1. Establish, implement, and post online a policy that its web pages will be accessible and create a process for implementation;
    2. Ensure that all new and modified web pages and content are accessible;
    3. Develop and implement a plan for making existing web content more accessible;
    4. 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
    5. Periodically (at least annually) enlist people with disabilities to test its pages for ease of use.

NEW CONSTRUCTION, ALTERATIONS, AND PHYSICAL CHANGES TO FACILITIES

16. The County will ensure that all buildings and facilities constructed by or on behalf of the County after January 26, 1992, are constructed in full compliance with the requirements of 28 C.F.R. § 35.151, including applicable architectural standards.
17. The County will ensure that alterations to County facilities made after January 26, 1992, are made in full compliance with the requirements of 28 C.F.R. § 35.151, including applicable architectural standards.
18. Attachments J and K list the elements or features of the County's facilities that do not comply with the Standards. It is the Department’s position that elements or features of a facility that do not comply with the Standards prevent persons with disabilities from fully and equally enjoying County services, programs, and activities, and constitutes 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. However, this Agreement shall not be construed as an admission of liability or discrimination by the County.
19. When taking the actions required by this Agreement until March 15, 2012, the County may comply with the cited provisions of the Standards or the 2010 Standards defined at 28 C.F.R.§§ 35.104, which includes both the title II regulation at 28 C.F.R. §§ 35.151 and the 2004 ADAAG at 36 C.F.R. Part 1191, Appendices B and D. After March 15, 2012, the County will notify the Department of which of these two accessibility standards it elects to use; use the same accessibility standard throughout a facility in making alterations; and report to the Department which set of Standards will be used for each facility.
20. Within nine (9) months of the effective date of this Agreement, the County 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.
21. Altered Facilities: In order to ensure that the following spaces and elements in County facilities for which alterations commenced after January 26, 1992, are readily accessible to and usable by persons with disabilities, the County will take the actions listed in Attachments J and M, as necessary.
22. Program Access in Existing Facilities: In order to ensure that each of the County’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 County will take the actions listed in Attachments K and M, as necessary.
23. Facilities and Programs Not Surveyed by the Department: The County will review compliance with the requirements of title II of the ADA for those County facilities and programs that were not reviewed by the Department prior to this Agreement. Within twelve (12) months of the effective date of this Agreement, the County will submit for review by the Department a detailed report listing the access issues identified during its review together with the corrective actions and completion dates proposed to resolve such issues. The review conducted by the County, the access issues identified and the corrective actions and completion dates proposed will be consistent with the requirements of title II of the ADA.

MISCELLANEOUS PROVISIONS

24. Except as otherwise specified in this Agreement, at yearly anniversaries of the effective date of this Agreement until it expires, the County will submit written reports to the Department summarizing the actions the County has taken pursuant to this Agreement during each year. The reports will include, as necessary to document compliance with the terms of this Agreement, 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.
25. Throughout the life of this Agreement, consistent with 28 C.F.R. § 35.133(a), the County will maintain the accessibility of its programs, activities, services, facilities and equipment, and will take the necessary actions (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).
26. Within six (6) months of the effective date of this Agreement, the County will develop or procure a two-hour training program on the requirements of the ADA and appropriate ways of serving persons with disabilities. The County 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.
27. Within one (1) year of the effective date of this Agreement, the County will deliver its training program to all County employees who have direct contact with members of the public. At the end of that period, the County 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

28. If at any time during the life of this Agreement the County 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.
29. It is a violation of this Agreement for the County 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 unless the County requests a modification to this Agreement prior to the expiration of the time for compliance.
30. The Department may review compliance with this Agreement at any time. If the Department believes that the County 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 notify the County 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 one-hundred twenty (120) days of the date it provides notice to the County, 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.
31. 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.
32. 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 County or the Department on request.
33. 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 County’s continuing responsibility to comply with all aspects of the ADA and section 504 of the Rehabilitation Act.
34. This Agreement will remain in effect for three (3) years or until the parties agree that all actions required by the Agreement have been completed, whichever is later.
35. The persons signing for the County represent that they are authorized to bind the County to this Agreement.
36. The effective date of this Agreement is the date of the last signature below.

 

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July 27, 2011