Avoiding lawsuits: a summary of ADA provisions and remedies.

Is your correctional facility in compliance with Title II of the Americans with Disabilities Act (ADA)? Has your facility reasonably modified its policies, practices or procedures to avoid discrimination against disabled persons, unless doing so would fundamentally alter the nature of the service, program or activity or create undue administrative or financial burdens? To provide equal access to programs, has your facility made available appropriate auxiliary aids and services where necessary to ensure effective communication?

Do you need to learn how to comply with the ADA? The answer is yes. It is best to comply with the ADA before a lawsuit is brought against the facility.

The ADA was written to ensure that people with disabilities have an equal opportunity to participate in or benefit from public programs, services and activities. Title II of the ADA requires government entities, including state and local correctional institutions, to make their facilities, programs, services and activities accessible to beneficiaries. Beneficiaries of a correctional facility include inmates and their visitors.

Self-evaluation

The ADA required public entities to prepare a self-evaluation by January 1993. A self-evaluation is a public entity's assessment of its current policies and practices, analyzing whether these policies and practices adversely affect the full participation of individuals with disabilities in its programs, services and activities. Methods for securing auxiliary services, including guidance on when and where these services will be provided, were to be included in the self-evaluation.

Before preparing the formal self-evaluation, a corrections official from the facility should have examined each program, service and activity offered at the facility, taking into consideration how to accommodate disabled inmates who wish to, or are required to, participate in specific programs. Areas that were to have been examined include housing; indoor and outdoor recreation; shower and toilet facilities; the law library; medical services; disciplinary hearings; telephone and commissary privileges; and programs for visitation, education, vocation, counseling, therapy, substance abuse treatment and work release. The facility's self-evaluation should reflect this analysis. On an ADA claim, a corrections official should be prepared to produce, discuss and defend the facility's self-evaluation.

If structural changes were needed to achieve accessibility, a transition plan for removing barriers was to have been completed by July 1992. This applies only to public entities with 50 or more employees. If structural modifications were needed, the changes were to have been made no later than Jan. 26, 1995. If a facility has not made the necessary structural modifications by now, it should do so as soon as possible, to the best of its ability, or be prepared to defend why structural limitations or compliance would fundamentally alter the nature of the program, service or activity.

Compliance Isn't Always Costly

Fears that complying with the ADA will break the bank are greatly exaggerated - at least at the prelitigation stage. Structural changes to an existing facility may not be necessary. For facilities constructed or altered before Jan. 26, 1992, physical or structural changes are required only when there is no other way to make programs accessible. Historic facilities may be exempt from having to make structural changes. Generally, if programs can be moved to an accessible area of an existing facility, compliance with the ADA will be achieved.

Even when structural changes to existing buildings must be made, extensive retrofitting often can be avoided. Building one or two accessible multipurpose rooms may be an economical solution for program access. However, in some cases, structural changes may be unavoidable. For example, if a visitation program is offered on the second tier of a mezzanine and cannot be moved for security reasons, the visitation area would have to be equipped with a lift or an elevator to make it accessible.

Except in rare circumstances where terrain prevents the incorporation of accessibility features, buildings constructed or altered after Jan. 26, 1992, must be designed to be readily accessible to and usable by individuals with disabilities. This means that new facilities, new additions and new alterations to prisons must be built to comply with ADA Accessibility Guidelines (ADAAG), Uniform Federal Accessibility Standards (UFAS) or an equivalent standard.

Effective Dec. 20, 1994, the Architectural and Transportation Barriers Compliance Board revised the ADAAG to include special application sections for public entities. Section 12 of the revised ADAAG governs detention and correctional facility design standards. The Department of Justice, which regulates Title II, plans to adopt the revised ADAAG, when finalized, as the ADA Standards for Accessible Design for use by entities subject to Title II. As of Feb. 2, 1995, the Department of Justice has not finalized any rule adopting the Board's revised ADAAG. Until then, either ADDAG or UFAS standards or an equivalent standard applies to new construction and alterations of corrections facilities.

Accessibility Design Standards

Correctional administrators, as well as architects and county officials, should be familiar with accessibility design standards. Accessible entrances, doorways and routes of travel are required, unless otherwise indicated. Hallway passage widths, ground surfaces and parking space design requirements are standardized. Specifications for accessible toilets, showers and urinals, ramp and handrail size and space requirements, as well as minimum scoping standards for accessible cells are set forth both in UFAS and ADAAG. UFAS requires that 5 percent of the housing area in a prison be accessible to disabled persons; the ADAAG requires that 3 percent of the housing area be accessible.

The revised ADAAG specifically addresses design standards for common-use areas serving accessible detention cells or rooms. These areas include exercise yards, recreation areas, workshops, vocational and instruction areas, counseling centers, cafeterias, commissaries, medical facilities, rooms or areas made available to a group of inmates or detainees, as well as visiting areas and cubicles or counters having fixed seats. Bed height requirements also are specified in the revised ADAAG, and if bunk beds are provided, clearance space between bunks is required.

Communication

The ADA requires that public entities take necessary steps to ensure that communications with people who have disabilities are as effective as their communications with others.

Where a public entity communicates with applicants and beneficiaries by telephone, telecommunication devices for the deaf (TDDs) or equally effective telecommunication systems must be used to communicate with individuals with impaired speech or hearing. Telephone emergency services, including 911 services, must provide direct access to individuals who use TDDs and computer modems. "Direct access" means that emergency telephone services can directly receive calls from TDDs and computer modem users without relying on outside relay services or third-party services. If a 911 telephone line is available, a separate telephone line must not be substituted as the sole means for non-voice users to access 911 services.

For a hearing-impaired person, qualified interpreters, notetakers, computer-aided transcription services, written materials, telephone handset amplifiers, assistive listening systems, telephones compatible with hearing aids, closed-caption decoders and TDDs are examples of appropriate auxiliary aids and other services to ensure effective communication. For a visually impaired person, information provided on tape cassettes, in Braille or large print, or by qualified readers helps ensure effective communication with beneficiaries.

Consequences of Noncompliance 

Obviously, there are many steps toward compliance that corrections officials may fail to accomplish, and they may find themselves in violation of the ADA. Violating the ADA has costly consequences, including preventive relief (such as court-ordered injunctions prohibiting the facility from continuing with a discriminatory practice), providing reasonable accommodations (such as moving the program to an accessible area or providing an interpreter at disciplinary hearings for hearing-impaired inmates), paying legal costs and, effective since the 1991 amendments to the Civil Rights Act of 1964, compensatory damages for unlawful and intentional discrimination.

Compensatory damage awards have caps, but the caps are high. For public employers with more than 500 employees, compensatory damages may reach $300,000. For public employers with 201 to 500 employees, the cap for compensatory damages is $200,000. For public employers with 101 to 200 employees, compensatory damages may not exceed $100,000. And, for public employers of 15 to 100 employees, compensatory damages may reach $50,000. These amounts are in addition to other remedies the court may order.

Ignorance of the ADA will not excuse noncompliance or serve as a defense for a corrections official. A facility that has not prepared a self-evaluation or prepares it only after an inmate has filed an ADA claim may not be able to demonstrate a good-faith effort to comply with the ADA. This may constitute "intentional" discrimination, placing the facility at risk for the imposition of compensatory damages. On the other hand, demonstrated (and documented) attempts to comply with the ADA may help to establish a good-faith effort to accommodate individuals with disabilities and be a defense to the imposition of compensatory damages.

Defending an ADA claim is expensive, win or lose. To avoid costly litigation and court-ordered remedies, corrections administrators should act now to learn how to comply with this landmark civil rights legislation.

Darlene Van Sickle is a senior attorney for the New York State Commission of Correction. This article expresses the views of the author, which may not necessarily be the viewpoint of the New York State Commission of Correction.