SETTLEMENT AGREEMENT BETWEENTHE
UNITED STATES OF AMERICA
AND
THE OHIO DEPARTMENT OF REHABILITATION AND CORRECTION
UNDER THE AMERICANS WITH DISABILITIES ACT
DJ # 204-57-208

I. BACKGROUND

1. The United States initiated this matter as a compliance review of the Marion Correctional Institution ("Marion"), Ohio Department of Rehabilitation and Correction ("Ohio DOC"), under Title II of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12131-12134, ("Title II"), and the United States Department of Justice's implementing regulation, 28 C.F.R. Part 35. Thereafter it expanded the review to include the North Central Correctional Institution ("North Central") and the Richland Correctional Institution ("Richland"), Ohio DOC.
2. April 10, 2010, representatives from the United States Department of Justice Civil Rights Division toured Marion with a consultant in the field of architecture. On December 8, 2015, they toured North Central and Richland.

II. JURISDICTION

1. The ADA applies to Marion, North Central, and Richland because each is a "public entity" as defined by Title II. 42 U.S.C. § 12131(1).
2. The United States is authorized under 28 C.F.R. Part 35, Subpart F, to determine these facilities' compliance with Title II of the ADA and the Department of Justice'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.
3. The parties to the Agreement are the United States of America and the Ohio Department of Rehabilitation and Correction.
4. Based on this compliance review of Marion, North Central, and Richland and their programs, services, activities, and facilities, the United States has concluded that Marion, North Central, and Richland 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 their programs, services, or activities or are subjected to discrimination in violation of Title II of the ADA4. The agreed upon remedial actions, below, are intended to remedy those violations.
5. The parties agree that it is in their best interests, and the United States believes that it is in the public interest, to resolve this dispute without engaging in protracted litigation. The parties have therefore voluntarily entered 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, except as provided in the section entitled "Implementation and Enforcement."

III. DEFINITIONS

1. The term "Marion" shall refer to the Marion Correctional Institution, Ohio Department of Rehabilitation and Correction, and its employees, agents, or contractors, who are wholly or partially responsible for the custody and care of inmates confined at Marion.
2. The term "North Central" shall refer to the North Central Correctional Institution, Ohio Department of Rehabilitation and Correction, and its employees, agents, or contractors, who are wholly or partially responsible for the custody and care of inmates confined at North Central.
3. The term "Richland" shall refer to the Richland Correctional Institution, Ohio Department of Rehabilitation and Correction, and its employees, agents, or contractors, who are wholly or partially responsible for the custody and care of inmates confined at Richland.
4. The term "inmate with a disability" shall refer to any inmate who meets the definition of "disability" as set forth in the ADA. 42 U.S.C. § 12102.
5. The term "new construction" shall mean each facility or part of a facility constructed by, on behalf of, or for the use of Marion, North Central, and Richland Institution where the construction commenced after January 26, 1992. 28 C.F.R. § 35.151(a).
6. The term "alterations" means a change to the facilities of Marion, North Central, and Richland that affects or could affect the usability of the facility or any part thereof where the alteration was commenced after January 26, 1992. 28 C.F.R. § 35.151(b).
7. The 2010 Standards for Accessible Design, 28 C.F.R. § 35.104 will be referenced in this Agreement as the "2010 ADA Standards".
8. The "effective date of this Agreement" is the date of the last signature agreeing and consenting to this Agreement.

IV. REMEDIAL ACTIONS

1. Architectural Issues
   1. Ohio DOC has retained an Independent Licensed Architect ("ILA"), as set forth in Section V, to monitor compliance with the provisions of this Agreement, including Attachments A, B, and C and all other alterations, additions, or modifications made by Ohio DOC during the term of this Agreement.
   2. Within the time frames set forth in Attachments A, B, and C, and by no later than three (3) years from the effective date of this Agreement, Ohio DOC shall complete the accessibility modifications to Marion, North Central, and Richland specified in Attachments A, B and C using the 2010 ADA Standards.
   3. Within six (6) months of the effective date of this Agreement, Ohio DOC will develop and submit to the United States a plan to provide at North Central and Richland accessible cells, with mobility features complying with §807.2 of the 2010 ADA Standards, in each classification level, and in sufficient numbers to meet the needs of their population with mobility disabilities. 28 C.F.R. § 35.151(k).
   4. In the event that North Central and Richland has constructed or altered any building or facility since the onsite review of December 8, 2015 and prior to the effective date of this Agreement, Ohio DOC will ensure such building or altered facility complies with the applicable accessibility standard. To achieve this, Ohio DOC will submit a written report to the United States, created by the ILA, within six (6) months of the effective date of this Agreement. The report will specify each action, if any, necessary to ensure the building or facility's compliance with 28 C.F.R. §35.151(k) and the Appendix to 28 C.F.R. 35.151(c).
2. Services, Programs, and Activities
   1. To provide access to programs, services, and activities for inmates with disabilities, North Central and Richland, consistent with their custodial role, shall:
      1. Immediately take steps to ensure that, within six (6) months of the effective date of this agreement, inmates with disabilities are housed in the most integrated setting appropriate to the needs of the individual. 28 C.F.R. §§ 35.130, 35.152.
      2. Immediately take steps to ensure that, within six (6) months of the effective date of this agreement, inmates with disabilities are not housed in designated medical areas unless they are actually receiving medical care or treatment. 28 C.F.R § 35.152(b)(2)(ii).
      3. Immediately ensure that inmates with disabilities are provided benefits, aids, or services that are provided to other inmates. This includes, but is not limited to, work, education, recreation, and early release opportunities. 28 C.F.R §§ 35.149, 35.150.
      4. Within two weeks of the effective date of this agreement, provide a shower chair in those units housing inmates with disabilities who cannot use a transfer shower to provide safe and equal access to showering. The shower chair must be capable of being propelled by the user and pushed by an attendant, must have a padded seat, a minimum load capacity of 300 pounds, removable or swing clear armrests and foot rests, wheel locks, and must be designed with rust or corrosion resistant material designed for use in a shower. North Central and Richland will ensure that their staff and inmate aides who may assist inmates with disabilities in using the shower chair are trained to provide safe operation of the shower chair, including assisted transfer, as needed. 28 C.F.R. §§ 35.130, 35.130(b)(7).
      5. Immediately ensure that wheelchairs and other adaptive equipment used by inmates with disabilities are routinely cleaned, repaired, maintained, and generally kept in a safe, operable condition. In addition, North Central and Richland must provide appropriate devices, such as canes, trapeze bars, prostheses, orthopedic shoes, braces, air mattresses, and other medically necessary equipment, as required to meet the needs of inmates with disabilities. 28 C.F.R. §§ 35.130, 35.130(b)(7).

V. INDEPENDENT LICENSED ARCHITECT

1. Ohio DOC has retained FMS Architects, Columbus, Ohio, as an Independent Licensed Architect ("ILA") knowledgeable about the architectural accessibility requirements of the ADA. This ILA, paid by Ohio DOC without regard to outcome, has been approved by the United States. The ILA must act independently to certify whether remediation of the violations identified in Attachments A, B, and C and any other alterations, additions, or modifications made by North Central and Richland 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).
2. The ILA will conduct semi-annual inspections of Marion, North Central, and Richland in order to ensure compliance with Paragraph IV. A. of this Agreement. The ILA will prepare and provide to the United States and Ohio DOC written reports with photographs identifying whether each violation has been remediated in a manner that complies with the applicable accessibility standard. The written reports must include the ILS's written certification that each element has been reviewed and complies with the applicable accessibility standard.
3. The United States may also, in its discretion, provide technical assistance to the ILA throughout the term of this Agreement. Upon request by the Department, Ohio DOC will provide prior notice to the United States of inspections by the ILA to allow representatives of the United States to be present.
4. Ohio DOC will submit ILA certifications along with its reporting requirements as set forth in this Agreement.

VI. MONITORING AND REPORTING REQUIREMENTS

1. Within six (6) months of the effective date of this Agreement, Ohio DOC will provide the United States with a written status report, including any supporting documentation, delineating all steps taken during the reporting period to comply with each substantive provision of this Agreement. Thereafter, for the duration of this Agreement, Ohio DOC will send a status report every six (6) months to:

   Disability Rights Section Civil Rights Division U.S. Department of Justice 1425 New York Ave., NW Washington, DC 20005 [DJ # 204-57-208]

2. The United States shall have full and complete access to Marion, North Central, and Richland, their records, inmate records, and inmates, with advance written notice. The Department shall have the right to conduct confidential interviews with inmates.

VII. IMPLEMENTATION AND ENFORCEMENT

1. This Agreement shall remain in effect for three (3) years from the effective date of the Agreement.
2. Marion, North Central, and Richland shall ensure that all relevant current and future staff, including contractors, understand and implement the terms of this Agreement.
3. Ohio Department of Corrections agrees to ensure that this Agreement is binding on all successors, assignees, employees, agents (including contractors) and all those working for or on behalf of Marion, North Central, and Richland.
4. Ohio DOC shall implement all reforms necessary to effectuate the terms of this Agreement and shall revise any policy, procedure, or practice, as necessary, to effectuate the terms of this Agreement.
5. Ohio DOC agrees that it shall not retaliate against any person that filed or may file a complaint, provided information or assistance, or participated in any other manner in an investigation or proceeding relating to this Agreement.
6. Ohio DOC shall maintain sufficient records to document its compliance with all of the requirements of this Agreement. During the period of this Agreement, Ohio DOC shall maintain any and all records required by or developed under this Agreement.
7. It is a violation of this Agreement for Ohio DOC to fail to comply in a timely manner with any of the requirements of this Agreement.
8. Failure by the United States to enforce any provision of this Agreement is not a waiver of the United States' right to enforce any provision of this Agreement.
9. If Ohio DOC fails to implement the terms of this Agreement, the United States reserves the right to institute a civil action to enforce the ADA and obtain remedies for the violations. Each party will bear the costs of any attorney fees associated with this matter.
10. This Agreement (including its Attachments) is 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 will be enforceable. This Agreement does not remedy any other potential violations of the ADA or other federal law. This Agreement does not relieve Ohio DOC of its continuing obligation to comply with all aspects of the ADA.
11. Each of the parties to this Agreement shall bear its own costs and expenses associated with, or arising from, its performance of obligations under this Agreement.
12. The parties may jointly agree, in writing, to modify the terms of this Agreement.
13. No person or entity is intended to be a third-party beneficiary of the provisions of this Agreement for purposes of any civil, criminal, or administrative action or proceeding. Accordingly, no person or entity may assert any claim or right as a beneficiary or protected class member under this Agreement. This Agreement is not intended to expand the right of any person or entity who seeks relief against the Ohio Department of Correction, its officials or employees. This Agreement may not be used as evidence of liability in any proceeding.
14. The person signing for Ohio DOC represents that he is authorized to bind Ohio DOC to this Agreement.