DJ 204-30-76

BACKGROUND

SCOPE OF THE INVESTIGATION

The United States Department of Justice (Department) initiated this matter as a compliance review of the Pike County Health Department (Health Department) 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.

The review was conducted by the Disability Rights Section of the Department’s Civil Rights Division and focused on the Health Department’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 Health Department’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 Health Department’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. §35.150, 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. §§ 35.150 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 Health Department’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).

JURISDICTION

1. The ADA applies to the Pike County Health Department 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 Health Department 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 parties to this Agreement are the United States of America and the Pike County Health Department.
4. In order to avoid the burdens and expenses of an investigation and possible litigation, the parties enter into this Agreement.
5. 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 THE PIKE COUNTY HEALTH DEPARTMENT

6. The Health Department has posted the Equal Employment Opportunity poster.
7. The Health Department has designated an ADA Coordinator.
8. The Health Department has adopted a “Limited English Proficiency” Policy. Under this policy, any person identified as having a speech or hearing disability or limited English language proficiency who seeks health department services shall have interpreter services made available in order to ensure that they have meaningful access to the benefits the health department has to offer. Health Department staff receive training on this policy at the time they are hired and annually thereafter, and the Health Department monitors to ensure that this policy is upheld.
9. The Health Department has a policy to “maximize the full inclusion and integration of people with disabilities in all aspects of employment and all programs, services, and activities.” In order to carry out this policy, all Health Department Employees must comply with additional policies regarding equal employment opportunity, diversity and non-discrimination, and reasonable accommodation.

REMEDIAL ACTION

NOTIFICATION

10. Within two months of the effective date of this Agreement, the Health Department will adopt the attached Notice (Attachment A); distribute it to all agency heads; post the Notice on its website; 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 Health Department 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 Health Department accessible programs, services, and activities.

GENERAL EFFECTIVE COMMUNICATION PROVISIONS

12. The Health Department will take steps to ensure that all appropriate employees are trained and practiced in using the Kentucky Relay Service to make and receive calls.

EMPLOYMENT

13. Within three months of the effective date of this Agreement, the Health Department 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 Health Department:

• 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 Health Department’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 Health Department 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.
• will make an individualized assessment of whether a qualified individual with a disability meets selection criteria for employment decisions. To the extent the Health Department’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 one month of the effective date of this Agreement, and on subsequent anniversaries of the effective date of this Agreement, the Health Department 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 Health Department (Internet Personnel) the technical assistance document, “Accessibility of State and Local Government Websites to People with Disabilities,” which is Attachment F to this Agreement (it is also available at www.ada.gov/websites2.htm).
15. Within three months of the effective date of this Agreement, and throughout the life of the Agreement, the Health Department will do the following:

PHYSICAL CHANGES TO FACILITIES

16. The elements or features of the Health Department’s facilities that do not comply with the Standards, including those listed in Attachment K, prevent persons with disabilities from fully and equally enjoying the Health Department’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.
17. The Health Department will comply with the cited provisions of the Standards when taking the actions required by this Agreement.
18. Program Access in Health Department’s Existing Facilities: In order to ensure that each of the Health Department’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 Health Department will take the actions listed in Attachment K.

MISCELLANEOUS PROVISIONS

19. Except as otherwise specified in this Agreement, at the twelve month, twenty-four month, and thirty month anniversaries of the effective date of this Agreement until it expires, the Health Department will submit written reports to the Department summarizing the actions the Health Department 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.
20. Throughout the life of this Agreement, consistent with 28 C.F.R. §35.133(a), the Health Department 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).
21. Within six months of the effective date of this Agreement, the Health Department will develop or procure a two-hour training program on the requirements of the ADA and appropriate ways of serving persons with disabilities. The Health Department 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.
22. Within one year of the effective date of this Agreement, the Health Department will deliver its training program to all Health Department employees who have direct contact with members of the public. At the end of that period, the Health Department 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

23. If at any time the Health Department 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.
24. The Department may review compliance with this Agreement at any time. If the Department believes that the Health Department 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 Health Department 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 Health Department, 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.
25. For purposes of the immediately preceding paragraph, it is a violation of this Agreement for the Health Department 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.
26. 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.
27. 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 Health Department or the Department on request.
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 (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 Health Department 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 thirty months.
30. The person signing for the Health Department represents that he or she is authorized to bind the Health Department to this Agreement.
31. The effective date of this Agreement is the date of the last signature below.
    
    

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