Current through Register Vol. 50, No. 9, September 20, 2024
A.
Purpose. To establish the secretary's commitment to compliance with the
Americans with Disabilities Act and related legislation as it pertains to
services for offenders and to establish formal procedures regarding reasonable
accommodations for those offenders.
B. Applicability. Deputy Secretary,
Undersecretary, Chief of Operations, Assistant Secretary, Regional Wardens,
Wardens, Director of Probation and Parole, Director of Prison Enterprises and
offenders who have a disability. Each unit head is responsible for ensuring
that appropriate unit written policy and procedures are in place to comply with
the provisions of this regulation.
C. Policy. It is the secretary's policy to
provide offenders with access to housing, programs and services regardless of
their disability to the extent possible within the context of the department's
fundamental mission to preserve the safety of the public, staff and offenders
and consistent with other classification variables that may affect custody,
housing and program assignments. Equal access to programs, services and
activities will be provided to all offenders based upon their classification.
1. Access to housing, programs and services
includes the initiation and provision of reasonable accommodations including,
but not limited to facility modifications, assistive equipment and devices and
interpreter services. However, such accommodation should not constitute a
danger to the offender or others and should not create undue hardship on the
department or its employees.
2.
Staff who are aware of or have reason to believe that an offender has a
disability for which he may need accommodation are required to advise the unit
ADA coordinator, who will evaluate the circumstances to determine if auxiliary
aids and services and reasonable accommodations are required.
D. Definitions
Americans with Disabilities Act (ADA) -a
comprehensive federal law which requires the state to provide equal access for
people with disabilities to programs, services and activities of the
department.
Auxiliary Aids and Services -external aids
used to assist people who are hearing-impaired and may include qualified sign
language or oral interpreters, written materials, telephone handset amplifiers,
assistive listening devices, telephones compatible with hearing aids, closed
caption decoders, open and closed captioning, telecommunication devices for
deaf persons (TDD/TTY), videotext displays or other effective methods of making
aurally delivered materials available to individuals with hearing
impairments.
Disability -a physical or mental
impairment that substantially limits one or more of the major life activities
of an individual, including a record of such impairment or being regarded as
having such impairment.
Effective Communication -communication
with persons with disabilities that is as effective as communication with
others. Effective communication is achieved by furnishing appropriate auxiliary
aids and services where necessary to afford qualified individuals with
disabilities an equal opportunity to participate in or benefit from the
services, programs or activities of the department.
Major Life Activity -walking, seeing,
hearing, breathing, caring for one's self, sitting, standing, lifting,
learning, thinking, working and reproduction. This list is illustrative only.
The impairment to a major live activity must be long term.
Offender -anyone committed to the physical
custody of the Department of Public Safety and Corrections or under the
supervision of the Division of Probation and Parole.
Qualified Interpreter -an interpreter who
is able to interpret effectively, accurately and impartially both receptively
and expressively, using any necessary specialized vocabulary.
a. An employee who signs "pretty well" or has
only a rudimentary familiarity with sign language or finger spelling is not a
qualified sign language interpreter pursuant to this regulation. Likewise,
someone who is fluent in sign language but who does not possess the ability to
process spoken communication into the proper signs or to observe someone else
signing and change their signed or finger spelled communication into spoken
words is not a qualified sign language interpreter. A departmental employee
should not be allowed to interpret if his presence poses a conflict of interest
or raises confidentiality and privacy concerns. On occasion, an offender may
possess the skill level necessary to provide interpreting services; however,
the impartially concerns remain, and in many, if not most, situations, offender
interpreters should not be used due to confidentiality, privacy and security
reasons.
Reasonable Accommodation -a modification
or adjustment to a job, service, program or activity, etc that enables a
qualified individual with a disability to have an equal opportunity for
participation.
Requestor -a person who requests an
accommodation for a disability.
E. Procedures
1. Initiation of Requests for Accommodation
a. A qualified individual with a known
disability of a long term nature should be accommodated where reasonably
possible. A request for accommodation may be filed orally or in
writing.
b. An offender with a
disability may be able to function in the unit without any accommodation other
than that which may already have been provided. If not, the offender may
request accommodation.
c. The ADA
does not require that a request for accommodation be provided in any particular
manner; therefore, the department is charged with having knowledge, or deemed
with having knowledge, of the request regardless of the form of the
request.
d. The department has in
place a formal grievance mechanism through which an offender may seek formal
review of a complaint relative to any request for reasonable
accommodation.
e. An offender may
submit a written request for accommodation through the ARP process or staff
shall direct or assist the offender to write his request if the request is made
verbally.
f. The ADA block on the
ARP form shall be checked by the ARP screening officer and directed to the unit
ADA coordinator.
2.
Accommodation Review Process
a. Upon receipt
of a request for accommodation, the unit ADA coordinator shall seek to
determine the following:
i. if the medical
condition is of a temporary or long-term nature;
ii. if additional medical information is
needed. At this point of the process, the unit ADA coordinator may request that
the unit medical director determine the following:
(a). what specific symptoms and functional
limitations are creating barriers;
(b). if the limitations are predictable,
subject to change, stable or progressive;
(c) how the limitations impact the offender's
ability to fully participate in the activities and services provided;
iii. whether the condition
complained of impairs a major life activity.
b. Once the initial information is gathered,
a dialogue between the requestor and the unit ADA coordinator regarding
resolution of the problem shall begin.
Note: It may take only a change in duty status to resolve
the problem.
c. An
exception to the need to make an accommodation includes, but is not limited to,
the following:
i. not a qualified
disability;
ii. threat to one's
self or others. Considerations include:
(a).
duration of the risk involved;
(b).
nature and severity of the potential harm;
(c). likelihood the potential harm will
occur;
(d). imminence of the
potential harm;
(e). availability
of any reasonable accommodation that might reduce or eliminate the
risk;
iii. undue
hardship. The decision to use this exception can only be made by the
headquarters ADA coordinator after consultation with appropriate personnel. A
written description of the problem with the requested accommodation and the
difficulty anticipated by the unit should be sent to the headquarters ADA
coordinator. Considerations include the following:
(a). scope of the accommodation;
(b). cost of the accommodation;
(c). budget of the department;
(d). longevity of the
accommodation;
iv.
alteration would fundamentally change the nature of the service, program or
activity.
3.
Decision
a. Consideration should be given on
a case-by-case basis.
b. Once the
decision to accommodate or not is made, the requestor must be informed in
writing of the decision of whether or not an accommodation will be made, the
reason for the decision and the accommodation to be made, if applicable,
including any specific details concerning the accommodation. This decision
shall be conveyed through the ARP First Step Process. The requestor shall also
be informed of the right to appeal the decision through the ARP process.
i. For each decision, a copy of the packet of
information containing the decision, all information used to reach a decision
and all attempts to resolve the request shall be forwarded to the headquarters
ADA coordinator. The unit ADA coordinator shall ensure that all requests for
accommodation are properly and timely entered into the department's ADA
database.
4.
Appeal
a. The offender has the right to appeal
to the second step in accordance with the ARP process.
b. The ARP response shall be issued in
conjunction with the headquarters ADA coordinator and shall contain the
relevant issues raised in Subparagraphs E.2.a, b and c.
5. Recordkeeping
a. The Headquarters ADA coordinator shall
maintain records of all requests for accommodation made throughout the
department.
b. To ensure uniform
and consistent compliance with the provisions of this regulation, the
headquarters ADA coordinator shall maintain and track statistics concerning all
requests for accommodation from offenders and the nature and outcome of the
accommodations requested.
c. If a
pattern becomes apparent following review of the statistics, the headquarters
ADA coordinator shall seek to remedy and/or correct any problems noted and
report same to the secretary.
AUTHORITY NOTE:
Promulgated in accordance with
R.S.
49:950.
