SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
AND
THE SOUTH DAKOTA DEPARTMENT OF CORRECTIONS
UNDER THE AMERICANS WITH DISABILITIES ACT
DJ # 204-69-56

I. BACKGROUND

1. The United States initiated an investigation of the South Dakota State Penitentiary ("SDSP"), South Dakota Department of Corrections ("South Dakota DOC"), under Title II of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12131-12134, ("Title II"), following receipt of complaints alleging that SDSP was not accessible to inmates with mobility disabilities and that it denied them participation in SDSP's services, programs, and activities. Thereafter, the United States expanded the investigation to include the Mike Durfee State Prison ("MDSP") and to address complaints alleging that the South Dakota DOC fails to provide effective communication to inmates with hearing disabilities.
2. On May 20, 2014, representatives from the United States Department of Justice Civil Rights Division ("DOJ") toured SDSP with a consultant in the field of architecture. On December 1, 2016, DOJ representatives toured MDSP.

II. JURISDICTION

1. The ADA applies to MDSP and SDSP 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 investigate complaints alleging 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 South Dakota Department of Corrections.
4. Based on this investigation of MDSP and SDSP and their programs, services, activities, and facilities, the United States has concluded that MDSP and SDSP 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 ADA. The agreed upon remedial actions, below, are intended to remedy those violations. The South Dakota DOC denies the allegations and conclusions.
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 "MDSP" shall refer to Mike Durfee State Prison, South Dakota Department of Corrections, and its employees, agents, or contractors, who are wholly or partially responsible for the custody and care of inmates confined at MDSP.
2. The term "SDSP" shall refer to South Dakota State Penitentiary, South Dakota Department of Corrections, and its employees, agents, or contractors, who are wholly or partially responsible for the custody and care of inmates confined at SDSP.
3. 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.
4. The term "new construction" shall mean each facility or part of a facility constructed by, on behalf of, or for the use of MDSP and SDSP where the construction commenced after January 26, 1992. 28 C.F.R. § 35.151(a).
5. The term "alteration" means a change to the facilities of MDSP and SDSP that affects or could affect the usability of the facilities or any part thereof where the alteration was commenced after January 26, 1992. 28 C.F.R. § 35.151(b).
6. The "effective date of this Agreement" is the date of the last signature agreeing and consenting to this Agreement.
7. The 2010 Standards for Accessible Design, 28 C.F.R. § 35.104 will be referenced in this Agreement as the "2010 ADA Standards".

IV. REMEDIAL ACTIONS

1. Architectural Issues
   1. South Dakota DOC will retain an Independent Licensed Architect ("ILA"), as set forth in Section VII, to review compliance with the architectual provisions of this Agreement, including Attachment A and B, and all other alterations, additions, or modifications made by South Dakota DOC during the term of this Agreement to comply with the 2010 ADA Standards.
   2. Within the time frames set forth in Attachments A and B, and by no later than three (3) years from the effective date of this Agreement, South Dakota DOC shall complete the accessibility modifications to MDSP and SDSP specified in Attachments A and B, using the 2010 ADA Standards.
   3. Within six (6) months of the effective date of this Agreement, South Dakota DOC will develop and submit to the United States a plan to provide at MDSP and SDSP 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 its population with mobility disabilities. 28 C.F.R. § 35.151(k).
   4. In the event that South Dakota DOC has constructed or altered any building or facility since the onsite review of May 21, 2014 for SDSP or December 1, 2016 for MDSP, and prior to the effective date of this Agreement, South Dakota DOC will ensure such building or altered facility complies with the ADA applicable accessibility standard. To achieve this, South Dakota 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, MDSP and SDSP, consistent with their custodial role, shall:
      1. Within six (6) months of the effective date of this Agreement, move inmates with mobility disabilities currently housed in SDSP Federal East and West Hall from that building to accessible housing elsewhere in the facility or to another prison. Inmates with disabilities must be housed in the most integrated setting appropriate to the needs of the individual. 28 C.F.R. §§ 35.130, 35.152.
      2. 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. 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. MDSP and SDSP will ensure that its staff is trained to provide safe operation of the shower chair for inmates, including assisted transfer, as needed. 28 C.F.R. §§ 35.130, 35.130(b)(7).
      5. 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, MDSP and SDSP 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).
3. Effective Communication For Individuals Who Are Deaf, Hard of Hearing, or Have a Speech Disability.
   1. South Dakota DOC, consistent with its custodial role, shall take appropriate steps to ensure that communications with inmates who are deaf, hard of hearing, or who have a speech disability are as effective as communications with other inmates so that they may participate in or benefit from the services, programs, and activities of South Dakota DOC on an equal basis with other inmates. 28 C.F.R. §§ 35.130, 35.160.
   2. Within sixty (60) days of the effective date of this Agreement, South Dakota DOC will submit to the United States for review and approval, a draft Effective Communication Policy For Individuals Who Are Deaf, Hard of Hearing, or Have a Speech Disability that includes all requirements set out in Attachment C, incorporated fully herein. South Dakota DOC will incorporate any comments from the United States and submit the revised policy to the United States for review and approval within ten (10) days of receipt of the United States' comments. Within forty-five (45) days of the United States' approval, South Dakota DOC will adopt and implement the approved Policy.
   3. South Dakota DOC will provide live training to new employees who have contact with inmates who are deaf or hard of hearing or who have a speech disability within thirty (30) days of their start date. This live training will focus on the South Dakota DOC ADA policy regarding Effective Communication for Individuals Who are Deaf, Hard of Hearing, or have a Speech Disability. South Dakota will distribute the Policy during the training and the training shall include instruction on when to obtain and how to use auxiliary aids and services. Training shall prescribe the steps to be taken to ensure effective communication of both routine and unplanned activities, including during sleeping hours. 28 C.F.R. §§ 35.130, 35.160.
4. Effective Communication For Individuals Who Are Blind Or Have Low Vision
   1. South Dakota DOC, consistent with its custodial role, shall take appropriate steps to ensure that communications with inmates who are blind or have low vision are as effective as communications with other inmates. 28 C.F.R. §§ 35.130, 35.160.
   2. Within sixty (60) days of the effective date of this Agreement, South Dakota DOC will submit to the United States for review and approval a draft Effective Communication Policy For Individuals Who Are Blind Or Have Low Vision. 28 C.F.R. §§ 35.130, 35.160. The United States shall review the draft Policy and provide its comments to South Dakota DOC. South Dakota DOC shall incorporate the United States' comments and submit the revised Policy to the United States for review and approval within ten (10) days of receipt of the United States' comments. Within forty-five (45) days of the United States' approval, South Dakota DOC shall adopt and implement the approved Policy.
   3. The Effective Communication Policy shall provide, at a minimum, the following:
      1. A requirement to provide appropriate auxiliary aids and services to all inmates who are blind or have low vision including, but not limited to, Braille reading material, large print material, screen reader devices, audio books and other audio players, verbal updates regarding schedules and activities, and assistance in moving about the facility. 28 C.F.R. §§ 35.130, 35.160.
      2. A requirement that inmates who are blind or have low vision have access to all services, programs, and activities provided to the general population, including, but not limited to, religious services, and any other detention, rehabilitative, or educational program provided to inmates. 28 C.F.R. §§ 35.130, 35.160.
   4. South Dakota DOC will provide live training to new employees who have contact with inmates who are blind or have low vision within thirty (30) days of their start date. This training will focus on the South Dakota DOC ADA policy regarding Effective Communication for Individuals Who Are Blind or Have Low Vision. South Dakota DOC will distribute the Policy during the training. The training shall prescribe the steps to be taken to ensure effective communication of both routine and atypical activities. 28 C.F.R. §§ 35.130, 35.160.
   5. South Dakota DOC shall ensure that detainees who are blind or have low vision are handcuffed or restrained in a manner that permits safe mobility for such detainees, including the use of a cane or sighted guide. 28 C.F.R. §§ 35.130, 35.160.

V. DISABILITIES COORDINATOR AND GRIEVANCE PROCEDURE

1. Within forty five (45) days of the effective date of this Agreement, South Dakota DOC shall hire or designate two Disabilities Coordinators with responsibilities for MDSP and SDSP, and provide the Disabilities Coordinators adequate training to perform the tasks required by this position. The Disabilities Coordinators will report directly to the Warden. South Dakota DOC shall provide the Disabilities Coordinators with sufficient authority and resources to perform the tasks required by this Agreement, including coordinating requests for accommodations from inmates with disabilities. 28 C.F.R. § 35.107. The Disabilities Coordinators shall maintain records of requests for auxiliary aids and services as well as the auxiliary aids and services provided with or without a specific inmate request. The Disabilities Coordinators shall also resolve inmate ADA complaints and maintain records regarding the disposition of each complaint.
2. South Dakota DOC shall adopt and implement a written grievance procedure for resolving inmate ADA complaints. 28 C.F.R. § 35.107. Within sixty (60) days of the effective date of this Agreement, South Dakota DOC will submit to the United States for review and approval a draft ADA Grievance Procedure for resolving inmate ADA complaints. 28 C.F.R. § 35.107(b). The United States shall review the draft Grievance procedure and provide comments to South Dakota DOC. South Dakota DOC shall incorporate the United States' comments and submit the revised procedure to the United States for review and approval within ten (10) days of receipt of the United States' comments. Within ten (10) days of the United States' approval, South Dakota DOC shall adopt and implement the approved Grievance Procedure.

VI. POSTING POLICIES AND PROCEDURES

1. Within fourteen (14) days of the United States' approval of the Effective Communication Policies and Grievance Procedure, MDSP and SDSP shall post in all housing areas, intake, and medical units, a notice to inmates announcing adoption and implementation of the Effective Communication Policies and the Grievance Procedure and describing their requirements. MDSP and SDSP shall amend the Inmate Handbook to describe the requirements of the Effective Communication Policies and the Grievance Procedure.

VII. INDEPENDENT LICENSED ARCHITECT

1. Within three (3) months of the effective date of this Agreement, South Dakota DOC will retain an ILA knowledgeable about the architectural accessibility requirements of the ADA. The ILA will be considered a neutral inspector for purposes of reviewing compliance and will be reasonably available to the United States and South Dakota DOC to discuss findings in the reports and photographs. The ILA, paid by South Dakota DOC without regard to outcome, must be pre-approved by the United States. The ILA must act independently to certify whether remediation of the violations identified in Attachments A and B, and any other alterations, additions, or modifications made by South Dakota DOC 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 annual inspections of MDSP and SDSP in order to ensure compliance with Paragraph IV of this Agreement. The ILA will prepare, and provide to the United States and South Dakota 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 produced to the United States must include the ILA's written certification that each element has been reviewed and complies with the applicable accessibility standard. After the initial ILA inspection of the facilities referenced in Attachments A and B, the ILA is required to inspect only the items in Attachments A and B that the ILA found not compliant in the first or second inspection.
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 United States, the ILA and South Dakota DOC will provide prior notice to the United States of inspections by the ILA to allow representatives of the United States to be present. All communications with the ILA will be disclosed to the other party.

VIII. REPORTING REQUIREMENTS

1. Within six (6) months of the effective date of this Agreement, South Dakota 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, South Dakota 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 # 204-69-56

2. For all training required by this Agreement, South Dakota DOC shall submit written reports to the United States within thirty (30) days of the training. The written reports will document the date and time of the training; a copy of the training agendas; the names and titles of the employees who attended the training; and copies of the training sign-in sheets.
3. The United States shall have full and complete access to MDSP and SDSP, their records, inmate records, and inmates, with advance written notice. The United States shall have the right to conduct confidential interviews with inmates.

IX. IMPLEMENTATION AND ENFORCEMENT

1. This Agreement shall remain in effect for three (3) years from the effective date of the Agreement.
2. South Dakota DOC shall ensure that all relevant current and future staff, including contractors, understand and implement the terms of this Agreement.
3. This Agreement is binding on all successors, assignees, employees, agents (including contractors) and all those working for or on behalf of South Dakota DOC.
4. South Dakota 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. South Dakota DOC agrees that it shall not retaliate against any person who 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. South Dakota DOC shall maintain sufficient records to document its compliance with all of the requirements of this Agreement. During the period of this Agreement, South Dakota DOC shall maintain any and all records required by or developed under this Agreement.
7. It is a violation of this Agreement for South Dakota 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 South Dakota DOC fails to implement the terms of this Agreement, the United States reserves the right to institute a civil action to enforce this Agreement and the ADA and obtain remedies for the violations.
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 South Dakota DOC of its continuing obligation to comply with all aspects of the ADA.
11. The parties may jointly agree, in writing, to modify the terms of this Agreement.
12. 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 MDSP, SDSP or the South Dakota DOC, its officials or employees. This Agreement may not be used as evidence of liability in any proceeding.
13. The person signing for South Dakota DOC represents that he is authorized to bind South Dakota DOC to this Agreement.