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Implementing the Americans with Disabilities Act for inmates.

The Americans with Disabilities Act (ADA) enacted by Congress in 1990 has been cited as the first piece of major civil rights legislation in 30 years. Others refer to it warily as "the lawyer's relief act" because of its vague definitions and its sweeping scope. Discussions of ADA's implications for correctional agencies have been ongoing. With few exceptions, these discussions have focused on how implementation of the act's provisions affect correctional personnel. Less attention has been given to ensuring that agencies are complying with the provisions of the act that apply to inmates.

In this article, issues of applying ADA provisions to the offender population will be reviewed and some actions correctional personnel might take to avoid or minimize their liability under the act will be suggested. There is no one optimal way to meet offenders' needs as required by the act, but it is hoped that this overview will stimulate discussion among practitioners around the country about a variety of strategies for complying with ADA.

Review of Key ADA Provisions

ADA, which builds on the Rehabilitation Act of 1973, prohibits discrimination based on disability by state and local governments in the provision of all programs, services and activities. This means that individuals, including inmates, cannot be segregated, excluded or denied participation in any program, service or activity offered by a correctional agency or its contractors based solely on the fact that they have a disability.

A person with a disability is defined as the following:

* a person having a physical or mental impairment that substantially limits one or more major life activities;

* a person with a record of such an impairment; or

* a person who is, or has been, regarded as having such an impairment.

The definition of physical or mental impairment - an impairment that substantially limits one or more major life functions, such as seeing, hearing, walking or talking - is very broad. It includes several conditions, including traumatic brain injury, impaired hearing, impaired mobility, impaired vision, human immunodeficiency virus (HIV) and other chronic illnesses, including heart disease, mental retardation and mental illness. The act does not cover homosexuality, bisexuality, current illegal drug use, compulsive gambling and so forth.

A disability restricts a major life activity when it interferes with the conditions, manner or duration under which a person can perform regular activities. For example, individuals who cannot climb steps because of an arthritic condition or hear instructions because of hearing loss are considered impaired. Even if the impairment is corrected by an aid or medication, the fact that the person has an impairment still applies.

The ADA and Inmate Programs and Services

Mainstreaming or integrating individuals with disabilities into society is a cornerstone of ADA; therefore, providing access to activities, programs and services is essential. Correctional administrators should not segregate offenders simply because they have a particular disability. Staff should be encouraged to evaluate offenders with disabilities as individuals.

For example, segregating offenders who test positive for HIV, based on that fact alone, could be considered illegal under ADA. On the other hand, the act provides that correctional administrators may exclude an offender with a disability from a program if he or she presents a direct threat to the health and safety of others. A direct threat is defined as one that creates a very real, significant risk to the health and safety of staff or inmates. If someone with a communicable disease specifically threatens to infect another person or engages in behavior that puts others at risk, then he or she may be considered for segregation.

Physical Barriers

Barriers to full participation may be structural. For example, inmates with problems climbing stairs may be unable to access services located on the second floor, and showers that have a raised threshold may prohibit access to a person in a wheelchair. In general, correctional facilities are designed to accommodate young, reasonably healthy populations, and many have multiple structural barriers, including stairs, long distances between buildings, narrow doors and other physical barriers that can limit offenders' access to programs and services.

In a national survey conducted to determine the extent of services for older inmates, it was found that correctional facilities in several states had physical barriers that limited inmate access to bathrooms and shower facilities. Other problems identified included older offenders' lack of access to work release, and other programs because of facility design. ADA requires that new facilities be constructed without such barriers and older facilities be modified to improve access to inmates with disabilities.

Policies as Barriers

Programs and services also can be inaccessible because of agency policies or practices. Correctional personnel should initiate a thorough analysis of policies and procedures that might limit offender participation in programs and services because of a disability. Discriminatory activities should be modified to ensure equal access for all. Clearly defined program eligibility requirements, linking eligibility to actual program needs and ensuring that the assessment and classification processes are fairly applied, go a long way toward complying with ADA.

Many facilities have policies that require inmates to be able to participate in programs such as work camps or boot camps. Denying access to these and other programs and services becomes even more problematic when inmate release dates are linked to participation in specific activities. Of particular concern are boot camps, work release programs and other programs in which inmate participation earns them time off their sentences. In these instances, correctional administrators should reevaluate and change policies and practices that prevent full participation by all otherwise eligible inmates.

Some correctional administrators are examining their boot camp programs and modifying their "hard labor" provisions to incorporate activities that are within the physical or mental capabilities of inmates who have a disability. Inmates who have a physical impairment could be required to do comparable work involving mental tasks, such as recording readings of books for the visually impaired, typing material in braille, helping to maintain and beautify grounds, and folding newsletters or stuffing envelopes (without addresses) for the agency, other agencies or local nonprofit organizations. An interpreter could provide or write out instructions for those with severe hearing impairments.

Samples of Success

South Carolina has a modified community work release program for older offenders and those with disabilities. The program was funded through the Older Individuals Program's Job Training Partnership Program and was available to both male and female offenders. Following the grant period, the program was expanded to include younger men and women with disabilities.

Participants in the program must meet all eligibility requirements of the regular work release program with the exception of health status. They must be able to work, but they do not have to be considered "able bodied." They also have the same financial obligations as participants in the regular program; however, these are modified. For example, medical care is provided at a set cost by the agency while regular work release program participants contract with an outside medical provider.

Another program available to all offenders with disabilities is a work activities center that is a sheltered workshop. Contracts are obtained from local businesses, and inmates with disabilities perform the work at the institutional workshop. Participants earn time off their sentences.

Innovative Solutions

Inmates with disabilities should be involved in planning new programs or in devising ways they can integrate into existing ones. Corrections personnel should not assume that because inmates have disabilities they cannot perform a particular job or participate in a specific program. Staff should explain the requirements of the job or program and ask inmates whether they can meet them. Frequently, job assignments can be analyzed and broken down into smaller units. Inmates with problems standing for long periods of time can do those parts of the job that may be done while sitting, while other parts of the job that require more strenuous work can be done by inmates who are physically able to do the work. One possibility is to bring the work to the inmates if inmates with disabilities can't go to the work site. Security, medical and other staff should work with inmates to design jobs. Often, inmates with disabilities can have jobs in which they help others. For example, inmates with disabilities can serve as tutors for literacy programs or assist illiterate inmates in reading rules, regulations and other information. They can write letters and requests to staff for those who have difficulty writing. Inmates with disabilities may by able to help others accomplish essential activities of daily living. Partnerships also should be formed with local nonprofit organizations or other agencies that will create new jobs for inmates with disabilities. For-profit firms also can be a resource for specialized jobs and as contractors for sheltered workshop programs.

Staff Training

Complying successfully with ADA in corrections requires a commitment from top leadership that the agency will implement innovative modifications of existing programs or develop new activities designed to meet an individual offender's needs. Line staff who provide the day-to-day supervision and leadership of the programs at the institutional level also are a critical component of any successful correctional program for those with disabilities. Not everyone is suited to working with offenders who have disabilities. Staff should be carefully selected to work in these settings, and they must be given both the specialized training and the equipment to do the jobs required.

Assistance in developing specialized training programs should be available from state and local agencies and organizations that focus on those with disabilities. These can include organizations for the visually or hearing impaired, the elderly, those with mental retardation and a host of others. Most states have an office of vocational rehabilitation and one or more agencies that advocate for individuals with disabilities that can be of assistance in staff training and development.

Any training program should include basic information about specific disabilities, what policies and procedures will be used in working with offenders who have these disabilities, and what institutional and community resources are available that can help staff in the areas of programming and problem-solving. It also is useful to have a segment in the program when staff will be asked to assume particular disabilities and complete a series of tasks that are a part of inmates' routine activities. This empathetic training model will aid staff not only in becoming more sensitive to those with whom they will be working, but also in identifying barriers in the institution that hamper full participation by those with disabilities.

Conclusion

While institutionalized offenders have been the focus of this article, it should be noted that those supervising offenders in the community also must be sensitive to the needs of their clients who have disabilities. This will necessitate examining and eliminating any physical barriers to offenders receiving supervision, modifying policies and procedures that might discriminate against those who have disabilities and identifying services and resources needed for those under their supervision to succeed.

At this point, no one knows what the costs of complying with ADA will be. Failure to comply, however, can have serious consequences in court costs for those who are sued and in fines that can be levied against violators. Correctional staff can learn more about ADA compliance issues from several key organizations, including ACA, the National Institute of Corrections and the National Institute of Justice.

Several organizations outside of corrections also provide helpful information. The President's Committee on Employment of People with Disabilities has established the Job Accommodation Network, an international toll-free phone consulting service that provides information about job accommodation and employability of people with functional limitations. The phone number is 1-800-ADA-WORK (1-800-232-9675). Dialing this number puts the caller in touch with a consultant who can provide technical information about the requirements of barrier-free access, ideas on how to modify policies and practices that discriminate in employment of individuals with disabilities, information about products to help those with disabilities, and sources of information and services from other agencies, including training programs and funding sources.

Joann B. Morton is an associate professor at the University of South Carolina's College of Criminal Justice. Judy C. Anderson is deputy director of the Midlands Region for the South Carolina Department of Corrections.
COPYRIGHT 1996 American Correctional Association, Inc.
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1996 Gale, Cengage Learning. All rights reserved.

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Title Annotation:Treating Special Needs Offenders
Author:Morton, Joann B.; Anderson, Judy C.
Publication:Corrections Today
Article Type:Cover Story
Date:Oct 1, 1996
Words:2019
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