DEPARTMENT OF JUSTICE COMPLAINT NUMBERS 204-46-126 & -142
1. This matter was initiated by two complaints filed with the United States Department of Justice ("the United States") against the Nevada State Welfare Division ("Welfare Division"). The complaints alleged that the Welfare Division violated Title II of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12131-12134, by denying a qualified individual with disabilities an equal opportunity to participate in or benefit from the services, programs, or activities of the Welfare Division, or otherwise subjecting the individual to discrimination by the Welfare Division.
2. The Department of Justice is authorized under 28 C.F.R. Part 35, Subpart F, to investigate the allegations of the complaint in this matter, to determine the Welfare Division's compliance with Title II and the Departments implementing Title II regulation, issue findings, and, where appropriate, 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 of Justice fail to secure voluntary compliance pursuant to subpart F. In consideration of the terms of this Agreement as set forth below, the Attorney General agrees to refrain from undertaking further investigation or from filing civil suit in this matter.
3. The parties to this Settlement Agreement ("Agreement") are the United States of America and the Nevada State Welfare Division. In order to secure compliance by voluntary means, the parties hereby agree as follows:
4. The ADA applies to the Welfare Division because it is a public entity as defined in Title II of the ADA. 42 U.S.C. § 12131 and 28 C.F.R. § 35.104.
5. The Welfare Division agrees to fully comply with all terms of this Agreement and Title II of the ADA, and its implementing regulation, 28 C.F.R. Part 35. In voluntarily complying with Title II and its implementing regulation, and in agreeing to the terms and conditions of this Agreement, the Welfare Division does not admit to any violation of any regulation or statute. The Welfare Division agrees that this Agreement is predicated on assurances to the Department of Justice of its intention to act in full and complete compliance with Title II and its implementing regulation.
6. The Welfare Division agrees to provide appropriate auxiliary aids and services, including qualified interpreters, consistent with Title II requirements whenever necessary to further effective communication between or among personnel of the Welfare Division and Clients and Companions.
7. A “qualified interpreter” means an interpreter who is able to interpret effectively, accurately, and impartially both receptively and expressively, using any necessary specialized vocabulary. An employee who can finger-spell or signs "pretty well" should not be considered an interpreter until he or she possesses the proper skills to observe someone signing and accurately and completely interpret their signed or finger spelled communication into spoken words and vice versa. A Welfare Division employee should not be allowed to interpret if his or her presence poses a conflict of interest or raises confidentiality and privacy concerns. Someone who has only a rudimentary familiarity with sign language or finger spelling is not a "qualified interpreter" under this Agreement. Likewise, someone who is fluent in sign language but who does not possess the ability to process spoken communication into the proper signs or to observe someone else signing and change their signed or finger spelled communication into spoken words is not a qualified sign language interpreter.
8. The term, “Client” means a person who is deaf or hard of hearing and is seeking and/or receiving welfare services. The term “Companion” means a person who is deaf or hard of hearing and is either (a) a person whom the client indicates should communicate with Welfare personnel about the client, participate in any welfare decision, play a role in communicating the client's needs, condition or history, or help the client act on the information, advice or instructions provided by welfare personnel; (b) a person legally authorized to make welfare decisions on behalf of a client; or (c) such other person with whom the Welfare personnel would ordinarily and regularly communicate with concerning the client's welfare condition.
9. When an auxiliary aid or service is required to ensure effective communication with an individual who is deaf or hard of hearing, the Welfare Division agrees to provide an opportunity for individuals who are deaf or hard of hearing to request the auxiliary aids or services of their choice and will give primary consideration to the choice expressed by the individuals. "Primary consideration" means that the Welfare Division must honor the choice, unless it can show that another equally effective means of communication is available, or that use of the means chosen would result in a fundamental alteration in the nature of its service, program, or activity or in undue financial and administrative burdens.
10. The Welfare Division agrees to designate, if it has not already done so, an employee as the ADA Compliance Officer. The designee will be familiar with the requirements of Title II. The designee will formulate and implement policies, practices, and procedures as required by the Title II regulation.
11. The Welfare Division agrees to establish, if it has not already done so, a procedure to monitor its services to individuals with disabilities. This procedure will be established within sixty (60) days of the signing of this Agreement. The Welfare Division will ensure that the policy for the provision of services to individuals with a disability is implemented during normal hours, and emergency hours for those clients who access services accessed on such basis (e.g., shelter for certain domestic violence victims). The Welfare Division will be responsible for establishing and maintaining a procedure whereby interpreters are contacted to assist individuals with disabilities in receiving services. The Welfare Division will make available a combination of voice/TTY telephone line or a dedicated TTY telephone line; publicize its purpose and telephone number to the public; and answer questions and provide appropriate assistance regarding access to welfare services, and availability of appropriate auxiliary aids and services.
12. In circumstances where the Welfare Division believes that the proposed provision of accommodations and effective communication would fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens, the Welfare Division agrees to take different action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with disabilities receive the benefits or services provided by the Welfare Division.
13. The Welfare Division agrees to develop, if it has not already done so, a policy for communicating with individuals with disabilities seeking welfare services from the Welfare Division. Such policy would include, but not necessarily be limited to:
A. The determination of which appropriate auxiliary aids and services are necessary, and the timing, duration and frequency with which they will be provided, will be made by the Welfare Division personnel who are otherwise primarily responsible for coordinating and/or providing welfare services (“contact staff”), in consultation with the individual with disabilities where possible. The assessment will take into account all relevant facts and circumstances, including without limitation the following: the nature, length, and importance of the communication at issue; the individual's communication skills and knowledge; the individual's welfare status or changes thereto; and the individual's request for a particular auxiliary aid or service.
B. If the services of an interpreter are selected, the Welfare Division will contact an interpreting service provider prior to the individual's scheduled office or home visit so that the interpreter is available for the conversation at the office or home visit. The contact staff will immediately notify the designated office or person of the request for interpreting services during these visits.
C. In the event an individual with a disability informs the Welfare Division of his/her request for an interpreter, and a follow up visit with the individual is warranted, the Welfare Division contact staff will inform the individual that an appointment will be scheduled with the services of an interpreter.
D. The Welfare Division contact staff will provide confirmation to the individual that arrangements have been made for interpreter services on the date of appointment. If, after interpreting services are scheduled and the interpreter is unable to keep the scheduled appointment, the Welfare Division will secure the services of another interpreter. If the service cannot be provided at the initial scheduled appointment, the appointment will be rescheduled with an interpreter secured by the Welfare Division.
E. If, after conducting an assessment, the Welfare Division determines that the circumstances do not warrant provision of an auxiliary aid or service, the Welfare Division contact staff will so advise the individual requesting the auxiliary aid or service and will document the date and time of the denial, the name and title of the Welfare Division personnel who made the determination, and the basis for the determination. A copy of this documentation shall be provided to the individual (and companion, if applicable), and a copy will be placed in the individual’s file.
F. If a client or a companion with a disability does not request appropriate auxiliary aids or services but the Welfare Division contact staff knows that communication with the person requires appropriate auxiliary aids or services for effective communication, the Welfare Division will specifically inform the person that appropriate auxiliary aids and services are available free of charge.
G. Due to confidentiality, potential emotional involvement, and other factors that may adversely affect the ability to facilitate communication, the Welfare Division may not require, coerce or rely on a family member, companion, teacher, case manager, neighbor, advocate or friend of an individual or companion who is deaf or hard of hearing to interpret or facilitate communications between personnel of the Welfare Division and such individual or companion. However, such person may be used to interpret or facilitate communication if the client or companion who is deaf or hard of hearing does not object, if such person wishes to provide such assistance and if such use is necessary or appropriate under the circumstances, giving appropriate consideration to any privacy issues that may arise. This provision in no way lessens the Welfare Division’s obligation to provide appropriate auxiliary aids and services as required by federal laws.
14. The Welfare Division agrees to continue to provide initial training for all newly hired individual contact staff and annual refresher to sensitize them to the rights of individuals with disabilities. The Welfare Division will continue to maintain records of all such training provided to staff.
15. The Welfare Division agrees to post conspicuous signs in the public area visible to individuals with disabilities advising them of the availability of appropriate auxiliary aids and services, including qualified interpreters. Signs will indicate where an individual can obtain such services. The signs will be posted within ninety (90) days of the signing of this Agreement.
16. The Welfare Division will include in all future printings of its Handbook (or equivalent) and all similar publications a statement to the following effect:
To ensure effective communication with individuals and companions who are hearing impaired or need language interpretive services, we provide appropriate auxiliary aids and services free of charge, such as sign language, oral interpreters, telephone handset amplifiers, notetakers, written materials and TTYs.
Please ask your case worker or other Welfare Division personnel for assistance, or contact the Customer Service Unit Supervisor at 775-684-0616 or 1-800-992-0900 (voice) or 1-800-326-6888 (TTY).
17. The Welfare Division agrees to include on its website the statement set forth in paragraph 16.
18. The Welfare Division will publish, in an appropriate form, a written policy statement regarding the Welfare Division's policy for effective communication with persons who are deaf or hard of hearing. The policy statement should include, but is not necessarily limited to, language to the following effect:
If you recognize or have any reason to believe that a person or companion is deaf or hard of hearing, you must advise the person that appropriate auxiliary aids and services, such as sign language and oral interpreters, TTY's, notetakers, written materials, telephone handset amplifiers, assistive listening devices and systems, and telephones compatible with hearing aids, will be provided free of charge. If you are the responsible caseworker, you must ensure that such aids and services are provided when appropriate. All other personnel should direct that person to the Customer Service Unit Supervisor at 775-684-0616 or 1-800-992-0900 (voice) or 1-800-326-6888(TTY). This offer and advice must likewise be made in response to any overt request for appropriate auxiliary aids or services.
19. The Welfare Division agrees to provide the Department of Justice a copy of the designation of the ADA coordinator and photos of posted notices within one hundred twenty (120) days of completion of this Agreement.
20. For a period of three (3) years after the effective date of this Agreement, the Welfare Division agrees to notify the Department of Justice of all interpreting services complaints or grievances made against it alleging discrimination on the basis of disability.
21. Within one hundred twenty (120) days of the effective date of this Agreement, the Welfare Division will identify any and all interpreting services regulations, policies, procedures and practices that are not consistent with requirements of Title II. Within one hundred twenty (120) days of the effective date of this Agreement, the Welfare Division will modify such regulations, policies, procedures, and practices to be consistent with Title II. Within one hundred eighty (180) days of the effective date of this Agreement, the Welfare Division will provide the Department of Justice with copies of any and all interpreting services regulations, policies, procedures, practices, and training materials amended pursuant to this provision. Should the Department of Justice notify the Welfare Division of additional items that need modification pursuant to this provision, the Welfare Division will have ninety (90) days from the receipt of such notification to make the required modifications.
22. The Welfare Division agrees to enforce the above effective communication policies and procedures in a manner consistent with its enforcement against violations of other policies.
23. Within twenty (20) days of the effective date of this Agreement, the Welfare Division agrees to instruct all staff about compliance with the provisions of this Agreement.
24. If at any time the Welfare Division 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 shall not be unreasonably withheld or delayed.
25. The Department may review compliance with this Agreement at any time. If the Department believes that the Welfare Division 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 Welfare Division 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 twenty-one (21) days of the date it provides written notice to the Welfare Division, 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.
26. For purposes of the immediately preceding paragraph, it is a violation of this Agreement for the Welfare Division 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.
27. Failure by the Department to enforce this entire Agreement or any provision thereof with regard to any deadline or any other provision herein shall not be construed as a waiver of the Department's right to enforce other deadlines and provisions of this Agreement.
28. 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 shall 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 Welfare Division's continuing responsibility to comply with all aspects of the ADA and section 504 of the Rehabilitation Act.
29. This Agreement will remain in effect for three (3) years from the effective date of this Agreement.
30. The person signing for the Welfare Division represents that he or she is authorized to bind the Welfare Division to this Agreement.
31. The effective date of this Agreement is the date of the last signature below.
For the Nevada State Welfare Division:
For the United States:
NANCY K. FORD, Administrator
State of Nevada
Department of Human Resources
1470 E College Parkway
Carson City, NV 89706
R. ALEXANDER ACOSTA
Assistant Attorney General
for Civil Rights
JOHN L. WODATCH, Chief
RENEE M. WOHLENHAUS, Deputy Chief
ROBERT J. MATHER,Trial Attorney
Disabilty Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue., N.W.
Washington , DC 20530
December 29, 2005