Dunn v. Dunn, AL, Consent Decree, ADA Compliance, 2016

Type: Consent Decrees • Sept. 9, 2016 • Locations: United States of America -> Alabama • Topics: Discrimination -> Deaf Prisoners, Federal Statutory Law -> Americans with Disabilities Act, Telephones -> Telephone Access, Mental Health, Civil Rights Actions or Offenses/Bivens Actions -> Cruel and Unusual Punishment -> Mental Retardation/Intellectual Disability

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Case 2:14-cv-00601-MHT-TFM Document 728 Filed 09/09/16 Page 1 of 78

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
JOSHUA DUNN, ET AL.,
Plaintiffs,
v.
JEFFERSON DUNN, ET AL.,
Defendants.

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Civil Action Number:
2:14-cv-00601-MHT-TFM
(WO)

CONSENT DECREE CONCERNING CLAIMS
ARISING UNDER THE AMERICANS WITH DISABILITIES ACT AND
§504 OF THE REHABILITATION ACT OF 1973, AND RESOLVING THE
PHASE 1 TRIAL OF THESE PROCEEDINGS

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TABLE OF CONTENTS
I.

INTRODUCTION .............................................................................................................. 3

II.

STATEMENT OF PARTIES, PURPOSE, AND INTENT ................................................ 4

III.

PRELIMINARY AND FINAL APPROVAL OF CLASS ACTION SETTLEMENT ...... 8

IV.

DEFINITIONS .................................................................................................................... 8

SUBSTANTIVE PROVISIONS ....................................................................................... 11
1. Introduction.. ................................................................................................................. 11
2. Provisions Regarding Assessment, Self Evaluation and Transition Plan, and Corrective

Actions. ................................................................................................................. 12
3. Provisions Regarding Program Access and Reasonable Accommodation. .................. 24
4. Provisions Regarding RTUs and SUs. .......................................................................... 25
5. Provisions Regarding Identifying, Documenting and Tracking Inmates with

Disabilities. ........................................................................................................... 27
6. Provisions Regarding Security Levels. ......................................................................... 36
7. Provisions Regarding Auxiliary Aids. .......................................................................... 38

8. Provisions Regarding Emergencies. ............................................................................. 44
9. Provisions Regarding Accommodations and Appeals. ................................................. 46
10. Provisions Regarding ADA Coordinators. ................................................................. 48
11. Provisions Regarding Training of ADOC Staff. ......................................................... 55
12. Provisions Regarding a Quality Assurance Plan (including Quality Assurance Tools.)

............................................................................................................................... 58
13. Unresolved Claims. ..................................................................................................... 69

VI.

MONITORING ................................................................................................................. 69

VII.

DISPUTE RESOLUTION PROCESS.............................................................................. 70

VIII.

RESERVATION OF JURISDICTION AND ENFORCEMENT .................................... 73

IX.

TERMINATION ............................................................................................................... 73

AMENDMENTS .............................................................................................................. 74

XI.

FUNDING......................................................................................................................... 75

XII.

ATTORNEYS’ FEES AND EXPENSES ......................................................................... 75

XIII.

ADDITIONAL PROVISIONS ......................................................................................... 77

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INTRODUCTION
1,

On June 17, 2014, the individually named Plaintiffs and the Alabama Disabilities

Advocacy Program (“ADAP”) filed the instant lawsuit (the “Lawsuit”) challenging, among other
things, the compliance of the Alabama Department of Corrections (“ADOC”) with the provisions
of the Americans with Disabilities Act, 42 USC § 12111, et seq., including the ADA
Amendment Acts of 2008, 42 USC 12001 et seq., ( collectively, the “ADA”) and §504 the
Rehabilitation Act of 1973, 29 USC § 701, et seq. (“Rehabilitation Act”) (the ADA and
Rehabilitation Act are jointly referred to herein as the “Acts.”)
2.

The U.S. District Court for the Middle District of Alabama (the “Court”) has

bifurcated the issues raised in the Lawsuit into two trial Phases: Phase 1, which includes the trial
of claims and issues brought under the Acts, other than claims relating to mental health status;
and Phase 2, which includes all other claims in the Lawsuit.

On March 15, 2016, the parties submitted their “Joint Motion for Preliminary

Approval of a Class Action Settlement of Concerning Claims Arising Under the Americans with
Disabilities Act and § 504 of the Rehabilitation Act of 1973 (Doc. 376) (“Joint Motion”).
Attached to the Joint Motion was the parties’ “Settlement Agreement Concerning Claims Arising
Under the Americans with Disabilities Act and § 504 of the Rehabilitation Act of 1973, and
Resolving the Phase I Trial of These Proceedings” (Doc. 376-1) (“ Agreement”).

The Court conducted a hearing on the Joint Motion on March 17, 2016.

Following that hearing, and by Order of March 18, 2016, the Court directed that

the “Plan” referenced in the Agreement be submitted to the Court. (Doc. 394 at ¶ (2)) (“Order”).

Since the entry of the Order, the parties have continued to work, both

independently and through extensive mediation, to further refine and define the terms and
provisions of an agreement that will settle the issues to be tried in Phase 1. The Parties believe

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that they have reached such a resolution and that, in order to avoid additional protracted, costly
and uncertain litigation, it is in their respective best interests to resolve the issues to be tried in
Phase 1 of this litigation.

Accordingly, the Parties, by and through their respective counsel, jointly stipulate

and agree to the following provisions to resolve Phase 1 of the litigation.
STATEMENT OF PARTIES, PURPOSE, AND INTENT

Named Defendant ADOC is the agency of the State of Alabama in charge of the

state-owned and operated prisons and work release facilities in Alabama that currently or may in
the future have physical custody of the individually named plaintiffs.

The individually named plaintiffs in this lawsuit are currently, or may in the

future be, in the physical custody of ADOC.
10.

Plaintiff ADAP is the duly authorized protection and advocacy agency in the State

of Alabama.
11.

The individually named plaintiffs and ADAP seek class certification of their

claims asserted in this lawsuit under the Acts. As part of this agreed resolution of the claims to
be tried in Phase 1 of this litigation, ADOC consents to the certification, under Federal Rule of
Civil Procedure 23, of a class whose members (the “Class”) are defined as “any current or future
inmate in the physical custody of ADOC who has a disability as defined in 42 U.S.C. § 12102
and 29 U.S.C. § 705(9)(B), excluding those inmates whose disabilities relate solely to or arise
solely from mental disease, illness, or defect.”
12.

The individually named plaintiffs, the Class, and ADAP are collectively referred

to herein as “Plaintiffs.”

13.

The Plaintiffs and ADOC are collectively referred to as the “Parties.”

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14.

The Parties stipulate that there are no individual or class claims, including

putative class claims, under the Acts asserted against Named Defendant Jefferson Dunn, named
in his official capacity as Commissioner of the Alabama Department of Corrections, or Named
Defendant Ruth Naglich, named in her official capacity as Associate Commissioner of Health
Services for the Alabama Department of Corrections.
15.

The purpose of this “Amended and Restated Settlement Agreement Concerning

Claims Arising Under the Americans with Disabilities Act and §504 of the Rehabilitation Act of
1973, and Resolving the Phase 1 Trial of these Proceedings” (“Amended Agreement”) is to: (1)
amend, supplement and supersede the Agreement; (2) provide the “plan” requested in the Order;
and (3) settle and resolve all issues which were to be presented in the trial of Phase 1 of this
matter. The Parties agree and stipulate that by this Amended Agreement they hereby resolve all
pending claims in this action for alleged violations of the Acts, except for claims under the Acts
that relate solely to or arise solely from mental disease, illness or defect. Claims brought by
Plaintiffs under the Acts that relate solely to or arise solely from mental disease, illness or defect
are not waived and are reserved for resolution during the Phase 2 trial. 1
16.

Except for ADOC’s consent to class certification as described in Section II,

paragraph 4 above, the Parties agree that ADOC has not consented to class certification of claims
that arise under the Acts and that relate solely to or arise solely from mental health disabilities, or
claims that arise under the Eighth Amendment. Class certification and the merits of such claims
will be resolved in Phase 2 of this litigation.
1

The Parties agree that the question of whether ADOC should be required to add the following
categories of Inmates to the mental health caseload is expressly reserved for resolution during
Phase 2 of this litigation: (i) Inmates placed in suicide watch or safe cells; (ii) any Inmate who
has been placed in segregation more than two times in a 365-day period (except that placement
into segregation for protective custody or similar reasons); and (iii) any Inmate who spends more
than 50% of his or her time housed in segregation.

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17.

The Parties may not use this Amended Agreement or Agreement for any purpose

in Phase 2 of the litigation except as evidence of what has or has not been resolved by this
Amended Agreement.

18.

Nothing in this Amended Agreement or Agreement will be construed as an

admission by ADOC of any violation of law. To the contrary, ADOC denies every material
allegation of the Complaint, as amended, in this case and denies any liability to the
Plaintiffs. This Amended Agreement and Agreement do not constitute, and will not be construed
as, an admission or evidence of any act of deliberate indifference to the constitutional rights of
any Inmate, or of any violation of the Acts.

19.

The Parties stipulate that nothing in this Amended Agreement or in the

Agreement will be used for any purpose outside of the above-captioned matter or against any
named Defendant in any other litigation that has been or may be filed against any named
Defendant. Nothing in this Amended Agreement or in the Agreement will be construed to
require ADOC to do more than what is required by the Acts, court decisions applying or
interpreting the Acts, or Rules and Regulations interpreting the Acts.

20.

The Parties believe that this Amended Agreement is fair, reasonable, and

adequate to protect the interests of all Parties concerning the issues contained herein. The Parties
jointly file this Amended Agreement with the Court and ask that the Court issue an order
directing notice to the Class, setting an objection period, and setting a fairness hearing for
preliminary approval, and that the Court then approve the Class and the settlement as final.
21.

However, and in the event that this Amended Agreement is not approved by the

Court such that it settles and resolves, on a class basis, all issues to be tried in Phase 1, the
Parties retain all of their pre-Settlement litigation rights and defenses, including ADOC’s right to

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petition for interlocutory review of any order granting class certification. Additionally, the
Parties shall return to the status quo ante in the Lawsuit as if the Parties had not entered into this
Amended Agreement. Any discussions, offers, or negotiations associated with this Amended
Agreement or Agreement will not be discoverable or offered into evidence or used in the
Lawsuit or any other action or proceeding for any purpose, without prejudice to Plaintiffs’ right
to seek class certification, and ADOC’s right to oppose class certification. In such event, all
Parties will stand in the same position as if the Amended Agreement or Agreement had not been
negotiated, made or filed with the Court.

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PRELIMINARY AND FINAL APPROVAL OF CLASS ACTION SETTLEMENT
22.

Preliminary Approval – No later than seven (7) days after all necessary

signatories have executed this Amended Agreement, the Parties will jointly submit this Amended
Agreement to the Court for preliminary approval, along with a proposed order for preliminary
approval, a schedule for notice, proposed notices of preliminary approval, a schedule for an
objection period, and a request for a fairness hearing under Rule 23 (e) of the Federal Rules of
Civil Procedure.
23.

Final Approval – Within twenty (20) days of the Parties reaching agreement, the

Parties will file with the Court any additional agreement or agreements, which will include
notice provisions, a proposed Final Approval Order, and comply with all provisions of Rule
23(e) of the Federal Rules of Civil Procedure.

DEFINITIONS
24,

“Substantial Compliance” means adherence in all material respects to the terms of

this Amended Agreement and to any plans or methods implemented by ADOC so as to comply
with the terms of this Amended Agreement, recognizing that one hundred percent (100%)
compliance is not required. Isolated, acute, non-substantive or immaterial deviations from the
terms of this Amended Agreement or from any plans or methods implemented by ADOC so as to
comply with the terms of this Amended Agreement will not prevent a finding of Substantial
Compliance, provided that ADOC can demonstrate that it has:
a.

implemented a system or systems (i) for assuring compliance, and (ii) for

taking corrective measures in response to instances of non-compliance; and
b.

instituted policies, practices, and resources that are capable of durable and

sustained compliance.

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25.

“Disability” and “Disabilities” have the same meaning they have under the Acts

and applicable implementing regulations.
26.

“Inmate” is defined as any individual detained by or in the custody of ADOC,

including any individual housed in or held at any facility operated or controlled by ADOC. This
term does not include any individual who has been released on parole and/or probation or who is
not physically housed in an ADOC facility.
27.

Inmate with a Disability.

An Inmate who is a qualified individual with a

disability who:
a.

Has a physical or mental impairment that substantially limits one or more

major life activities;

28.

Has a record or history of such impairment; or

Is perceived or regarded as having such impairment.

“Programs” are defined as educational, vocational, rehabilitative, work release,

treatment, and religious training or instruction and include all educational, rehabilitative,
substance abuse treatment, vocational, work release, religious, disciplinary, classification,
medical or mental health treatment or similar programs, procedures, or processes provided to
Inmates in ADOC custody regardless of whether such programs are administered by ADOC, or
by a contractor of ADOC.
29.

An “Otherwise Qualified Inmate:” An Inmate who is able to meet all of a

Program’s requirements in spite of his or her impairment.

30.

Auxiliary Aids and Services: Refers to qualified interpreters, note takers,

transcription services, written materials, telephone handset amplifiers, assistive listening
systems, telephones compatible with hearing aids, closed caption decoders, captioning

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telecommunications devices for deaf persons (“TDD” or “TTY”), videotext displays or other
effective methods of making aurally delivered materials available to individuals with hearing
impairments; qualified readers, taped texts, documents in Braille or large print, or other effective
methods of making visually delivered materials available to individuals with visual impairments;
acquisition or modification of devices; or other similar services and actions. This term also
includes the provision of tutors and aides where appropriate.

31.

Statewide ADA Coordinator. An ADOC employee charged with the duty of

ensuring compliance with the provisions of the Acts throughout ADOC’s facilities, among other
duties as detailed elsewhere in this Amended Agreement.

32.

Facility ADA Coordinator. An ADOC employee charged with the duty of

ensuring compliance with the provisions of the Acts at the ADOC facility for which he or she is
designated as Facility ADA Coordinator, among other duties as detailed elsewhere in this
Amended Agreement.

33.

Facility. All correctional facilities, including work release centers, operated by

ADOC whether at the time of this Agreement or in the future.

34.

Major Life Activities. These include, but are not limited to: caring for oneself,

performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending,
speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

35.

Major Bodily Functions. These include but are not limited to functions of the

immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory,
circulatory, endocrine, and reproductive functions.

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36.

Undue Hardships. An accommodation that is excessively costly, extensive,

substantial, disruptive, or that would fundamentally alter the nature or operation of ADOC or any
of its Facilities.

37.

Request for an Accommodation. A request to a Facility ADA Coordinator by an

Inmate for use of an assistive device or service, change in housing placement, modification of
architectural or program access, or other modification of policy or procedure to ensure than an
Inmate with a Disability may, with a reasonable accommodation, access all programs and
program areas and Facility areas (to include housing), in a manner consistent with that of an
Inmate without a disability who is otherwise similarly situated.

38.

Appeal. The process that permits an Inmate to seek review by the Statewide

ADA Coordinator of a decision by a Facility ADA Coordinator.

39.

ADA Request Form. The form, an exemplar of which is attached hereto as

Exhibit “A,” through which an Inmate may Request an Accommodation or pursue an Appeal.

SUBSTANTIVE PROVISIONS
40.

Introduction. The Parties have jointly developed and agreed upon the below-

described substantive provisions that are designed to provide for care, services, accommodations,
programs, and activities for Inmates consistent with the terms of this Amended Agreement and
the Acts. These provisions are intended to ensure that Inmates are not, on the basis of disability,
exposed to substantial harm and that Inmates are not, on the basis of disability, subject to
discrimination.

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4 l.

Provisions Regarding Assessment, Self-Evaluation and Transition Plan, and

Corrective Actions.
I.

The following summary describes the activities and time frames in which

these activities will be completed (discussed in more detail in later provisions).All time frames
are based on the date of the Court’s Final Approval of this Amended Agreement (“Final
Approval”).
A.

Within four (4) months of Final Approval, ADOC will have

completed a list of all educational and rehabilitative programs, and all vocational programs,
sorted by institution, for all ADOC facilities. See Section V.2.IV.
B.

Within six (6) months of Final Approval, ADOC will designate

facilities which it certifies will not be used to house Inmates with mobility or vision impairments.
See Section V.2.III.
C.

Within twelve (12) months of Final Approval, ADOC will

complete a Self-evaluation to include:
1.

An architectural survey of its major prison and work

release facilities. See Section V.2.IV.
2.

A systematic review of ADOC Policies and Procedures,

and facility specific Policies and Procedures, specific to inmates for any facility where ADOC
intends to house inmates with disabilities. See SectionV.2.IV.
3.

All annual (or semi-annual) Inmate medical evaluations to

ensure that all disability-related handicaps and accommodations are entered into the Health
Services Module, as provided in Section V.5.I. below, except for those evaluations discussed in
Section V.5.I.C.2.ii. below, will have been completed.

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Within fifteen (15) months of Final Approval, ADOC will

complete a Transition Plan describing how ADOC intends to effectuate compliance with the
Acts concerning housing assignments and program access.

This will designate whether

architectural barriers are to be removed, or remediated, or new facilities built, or if policy
changes will be implemented to overcome any architectural barrier in each instance for each
Facility. See Section V.2.V.
E.

Within eighteen (18) months of Final Approval, ADOC will:
1.

Modify all procedures and policies necessary to overcome

architectural barriers without remediation or removal. See Section V.2.V.B.
2.

For all instances in which architectural removal or

remediation is selected, or new Facilities built, ADOC will provide the Monitor all existing
materials outlining the removal or remediation or building processes, including any bid
specifications, requests for proposals, contracts (if the same exist as of that time) and similar
records. See Section V.2.V.
F.

Within twenty-four (24) months after Final Approval, and again at

thirty (30) months after Final Approval, ADOC will supplement and update the status of any
architectural removal or remediation programs or building processes. See Section V.2.V.
G.

Within thirty-two (32) months after Final Approval, ADOC will

have completed all architectural barrier removal or remediation or constructed sufficient new
facilities to accommodate Inmates with Disabilities. See Section V.2.V.
II.

Identification and Listing of Programs. Within four (4) months of Final

Approval, ADOC will provide the designated Architectural Expert and Plaintiffs’ counsel a
complete list of all educational, vocational, and rehabilitative programs and services, identified

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by name and at the Facility or Facilities where offered. This list will include programs and
services at Facilities that are not intended to be architecturally surveyed.
III.

Designation of Facilities That Will Not House Inmates with Disabilities.

ADOC may designate certain of its Facilities that will not be architecturally surveyed, subject to
the limitations set forth in Section V.2.IV.D.3. below.

ADOC will certify, in writing, its

facilities that will not contain Inmates with vision or mobility disabilities and this certification
will be provided to the designated Architectural Expert and Plaintiffs’ counsel within six (6)
months after the date of Final Approval.
IV.

Self-Evaluation. ADOC will conduct a self-evaluation of its Facilities

consistent with the provisions of 28 C.F.R. 105-35.117 and 35.150 (c) and (d).
A.

On or before twelve (12) months following Final Approval, ADOC

will complete a written Self-evaluation identifying and listing, by Facility, the following: all
programs, activities, and services ADOC provides or makes available to Inmates at each facility,
including facilities that will not be architecturally surveyed; Inmates’ access to and within each
of ADOC’s Facilities where ADOC intends to assign Inmates with vision or mobility
impairments; and all of ADOC’s policies and practices regarding Inmates at each facility where
ADOC intends to assign Inmates with Disabilities, including policies and practices that govern
the administration of ADOC's Programs, activities, and services at that Facility as the same relate
to Inmates. These policies and practices are typically reflected in ADOC’s administrative
regulations, standard operating procedures, policy directives, and memoranda.
B.

ADOC’s review of its policies will ensure the following:
1.

That ADOC is able to communicate with Inmates with

Disabilities in a manner that is as effective as its communications with other Inmates. If ADOC

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communicates with Inmates by telephone, it should ensure that TDDs or equally effective
telecommunication systems are used to communicate with individuals with impaired hearing or
speech. If ADOC provides telephone emergency services, it should review its policies to ensure
direct access to individuals who use TDD’s and computer modems.
2.

That ADOC accommodates Inmates with vision and

hearing impairments. This may include, but is not limited to, readers for individuals with vision
impairments; interpreters or other alternative communication measures, as appropriate, for
individuals with hearing impairments; and note-takers for individuals with manual impairments.
A method for securing these services should be developed, including guidance on when and
where these services will be provided. ADOC may permit properly trained and willing Inmates
to serve in these capacities. Where equipment is used as part of ADOC's program, activity, or
service, an assessment should be made to ensure that the equipment is usable by Inmates with
Disabilities, particularly Inmates with hearing, visual, and manual impairments. In addition,
ADOC should have policies that ensure that the equipment is maintained in operable working
order.
3.

That Inmates with Disabilities are accounted for and

evacuated to a place of safety during an emergency. This may require the installation of visual
and audible warning signals and special procedures for assisting individuals with disabilities
from a facility during an emergency.
4.

That Inmates with Disabilities are not portrayed in an

offensive or demeaning manner.
5.

That

ADOC’s

decisions

concerning

a fundamental

alteration in the nature of a Program, activity, or service, or a decision that an undue financial or

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administrative burden will be imposed by Title II of the ADA, are made properly and
expeditiously.
6.

That the construction of any new Facility or part of a

facility, or the alteration of existing Facilities after January 26, 1992, conforms to the standards
designated under the regulations enforcing Title II of the ADA.
7.

That measures have been taken to ensure that employees of

ADOC are familiar with the policies and practices for the full participation of Inmates with
Disabilities. Appropriate training should be provided to employees.
8.

That, if ADOC limits or denies an Inmate’s participation in

its Programs, activities, or services based upon that Inmate’s drug usage, it ensures that such
policies do not discriminate against former drug users, as opposed to individuals who are
currently engaged in illegal drug use. Nothing herein will be construed to permit ADOC to limit
the provision of medical or mental health care to Inmates based upon the illegal use of drugs
unless the same is determined by ADOC’s medical or mental health care provider(s) to be
contraindicated.
C.

Once ADOC has identified its policies and practices, it will review

and analyze whether these policies and practices permit, or adversely affect, the full participation
of Inmates with Disabilities in its Programs, activities, and services. In performing this review
and analysis, ADOC will be mindful that although its policies and practices may appear
harmless, those policies may in application result in denying Inmates with disabilities the full
participation of its Programs, activities, or services. These policies or practices will be modified
to ensure that Inmates may, with reasonable accommodation, access Programs. ADOC does not
have to alter or change policies necessary for the operation or provision of the program, service,

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or activity. The self-evaluation should identify policy modifications to be implemented and
include complete justifications for not modifying any exclusionary or limiting policies or
practices.
D.

ADOC will survey its Facilities,to identify any physical barriers to

Inmate access at the Facility (the “Survey”). The Survey will be in writing (supplemented where
appropriate by photographs and/or diagrams) and will identify all architectural barriers for
housing and Program access, as defined by the Acts, for any areas in which Inmates in such
Facility are allowed access. The Survey will determine whether Inmates with vision or mobility
impairments are provided access to all areas within the facility in which the given Inmate may
access, given appropriate security concerns. The survey will identify steps that should be taken to
make Programs, when viewed in their entirety, accessible to Inmates with Disabilities. If
structural changes or modifications to facilities are necessary, those changes or modifications
should be described in the Transition Plan. The Survey will include a systematic review of each
Facility in which ADOC may choose to house inmates with disabilities defined by the Acts.
1.

As part of the Survey, ADOC will assess at least the

following areas of its existing Prison and Work Release Facilities to, among other things,
determine the existence of architectural barriers which functionally inhibit Inmates with physical
disabilities from accessing those parts of the Prisons or Work Release Facilities that Inmates are
permitted to access: (a) Housing; (b) Recreational Areas; (c) Vocational Programs; (d)
Educational Programs; (e) Chapel; (f) Libraries; (g) Canteen; (h) Cafeteria; (i) Visitation; (j)
Hobby Craft; (k) Medical care treatment areas; and (l) Mental health care treatment areas.
2.

The Survey will be conducted jointly by ADOC, an agreed-

upon Architectural Expert (the “Architectural Expert”) and a representative designated by

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Plaintiffs’ counsel. ADOC will compensate the expert at a rate agreed to with the expert, and
will compensate the person designated by Plaintiffs’ counsel at a rate of $1,500.00 for each day,
or part of a day, of the survey, and at a rate of $150.00 for any hours spent in preparing and/or
reviewing the Survey. 2 The parties will jointly schedule surveys of the selected facilities. If the
parties are unable to agree whether a specific condition constitutes or creates a violation of the
Acts, such condition will be identified but listed as questioned. More than one facility may be
surveyed on any particular day provided that sufficient time is allocated to each facility, and such
surveys may not exceed nine hours on each day. One knowledgeable counsel for Plaintiffs may
serve as Plaintiffs’ designee. Any item identified as questioned will be resolved through the
Dispute Resolution Process described in Section VII., below.
3.

ADOC need not include as part of the Survey facilities

ADOC certifies will not house Inmates with vision or mobility Disabilities. To exclude a facility
from the Survey, ADOC will designate in writing a list of any such facilities not later than six (6)
months after the date of Final Approval. However, ADOC will survey enough facilities to ensure
sufficient available bed space to house Inmates with Disabilities in a manner consistent with their
individual needs, but also considering the requirement that integrated housing be provided when
appropriate. See Olmstead v. L.C., 527 U.S. 581 (1999). ADOC must survey at least fifty percent
(50%) of its facilities existing and in use as of Final Approval of in each of the following
categories:

Major Facility-Close Custody, Major Facility-Medium Custody, and Work

Release/Community Based Facility. The minimum number of facilities required shall be
calculated separately for men’s and women’s facilities. J.O. Davis Correctional Facility must be
included in the Survey.
2

The compensation of Plaintiffs’ counsel for involvement with this process is considered as part
of the monitoring costs as set out in Section VI. of this Amended Agreement.

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ADOC will maintain a copy of its self-evaluation for a period of

three (3) years. A copy of this self-evaluation will be made available to the general public, and a
copy of the same will be maintained at the law library of all ADOC facilities. ADOC is permitted
to redact from any copy of the self-evaluation made available to the public or to Inmates any
portion of the self-evaluation that could adversely impact safety or security concerns at ADOC
facilities. However, unreacted copies of the self-evaluation will be provided, under seal, to the
Court, the arbitrator, the monitor, and Plaintiffs’ counsel.
V.

Transition Plan. ADOC will create an ADA Transition Plan consistent

with the provisions of 28 C.F.R. 105-35.117 and 35.150 (c) and (d). The Transition Plan will list
any improvements and changes necessary in the Programs, activities, and services ADOC
provides or makes available to Inmates; all of ADOC’s policies and practices regarding Inmates;
and Inmates’ access to and within ADOC’s facilities necessary to ensure that ADOC complies
with the provisions of the Acts and this Amended Agreement.
A.

ADOC will use the results of the Survey, the analysis of the

necessary remediation, and the information gleaned during the implementation of any existing or
new procedures concerning the identification of Inmates with Disabilities in order to assign
Inmates with Disabilities to Facilities that are appropriate for their individualized needs, based on
disability, security level, and classification. ADOC will not be required to utilize facilities that
are identified as part of the Survey as having significant architectural barriers making
remediation or reasonable accommodation impracticable or that would impose Undue Hardship
on ADOC. However, ADOC will ensure that there are a sufficient number of beds of
appropriate security classification and specialized purpose to ensure that all Inmates with
Disabilities are appropriately housed based upon their individual disability status, and that such

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Inmates are provided equal access to programs as similarly situated inmates without disabilities
in the same facility. All Programs available anywhere within the ADOC system for similarly
situated Inmates without disabilities will be made available to such Inmates with Disabilities.
However, this does not mean an Inmate with a disability may obtain a transfer to a different
facility that offers the same Programs offered at his current facility. Whether an area is deemed
accessible for an Inmate with a Disability in an existing facility shall be governed by the 1991
ADA Standards for Accessible Design, and the applicable standards found at 28 C.F.R § 36,
unless substantial architectural modifications are, or were, made to the existing facility after
January 26, 1992. If substantial modifications are, or were made to the existing facility after
January 26, 1992, and for any new prisons built by ADOC, accessibility will be governed by the
2010 ADA Standards of Accessible Design found at 28 C.F.R. § 35.151 regarding new
construction and alterations, and the 2004 ADA Accessibility Guidelines (“ADAAG”) found at
36 C.F.R. § 1191.
B.

ADOC will take appropriate remedial action to eliminate

impediments to full and equivalent participation. Any corrections necessary will be completed
under the following schedule:
1.

Architectural:

Any necessary architectural changes to any ADOC

Facility in which Inmates with vision or mobility impairments are assigned will be completed
within twenty (20) months of completion of the survey.
b.

Within three (3) months of the completion of the

survey, ADOC will identify in writing how it intends to effectuate compliance with the ADA
concerning housing assignments and programmatic access affected by architectural and other

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barriers. Any changes in procedure required to overcome architectural barriers will be in
writing, specifically outlining the exact methodology by which ADOC intends to overcome each
barrier identified during the Survey for any facility in which ADOC intends to house inmates
with disabilities, without barrier removal or remediation. Any questioned areas, if not removed
or remediated, shall be identified in writing with an explanation as to why ADOC does not
believe that a modification is necessary.
C.

Nothing in this Agreement will be construed as

requiring removal or remediation of architectural barriers identified in the Survey if ADOC is
able to create a policy or procedure change which has the net effect of nullifying the problem
associated with the barrier, and that such non-physical removal or remediation does not place
anything more than nominal additional burdens on Inmates with Disabilities securing access to
programming. If removal or remediation is to occur, ADOC will provide all associated
documentary materials to Plaintiffs’ counsel, including contracts, to ensure that all appropriate
remediation occurs within the prescribed period.
d.

Following the expiration of the one (1) year period

during which ADOC will assess its facilities, no later than every sixth (6th) month thereafter,
ADOC will provide the monitor with a status report to include a timeline, spreadsheet or similar
document or record reflecting work that is contemplated, work that has begun, work that is
ongoing and work that has been completed. This document will contain expected dates of
completion of ongoing work or work that has not yet commenced. The monitor will be provided
access to any contract, change order or similar document or record necessary to ensure the
appropriate work has been provided for, what work will be done and the anticipated time period
necessary to complete the work.

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Procedural: Within six (6) months after completion of the

Survey, ADOC will have implemented all policies, procedures, and/or Standard Operating
Procedures to remove barriers identified in the Survey for all instances in which physical
remediation is not contemplated.
C.

Nothing herein prevents ADOC from making modifications or

improvements to its existing prison or work release facilities in order to bring such facilities or
any parts of such facilities into compliance with the architectural requirements of the ADA.
Likewise, nothing herein prevents ADOC from constructing entirely new prison or work release
facilities so long as those facilities are complaint with the provisions of the Acts.
D.

The Transition Plan will include the name of the official

responsible for the plan's implementation.
E.

ADOC will maintain a copy of the Transition Plan. Additionally, a

copy of the Transition Plan same will be maintained at the law library of all ADOC facilities that
maintain an inmate law library. ADOC is permitted to redact from any copy of the selfevaluation made available to the public or to Inmates any portion of the self-evaluation that
could adversely impact safety or security concerns at ADOC facilities. However, unreacted
copies of the Transition Plan will be provided, under seal, to the Court, the arbitrator, the monitor
and Plaintiffs’ counsel.
VI.

Prison Facilities. Notwithstanding any provision of this Amended

Agreement to the contrary, the parties acknowledge that the structures at issue are prisons or
work release facilities that, due to their very nature, have barriers to prevent inmates from
escaping custody. Barriers such as locks and locked entryways, bars, fences and similar devices

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and structures necessary to incarcerate Inmates or, due to custodial reasons, restrict Inmate
movement, need not be removed or remedied.

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42.

Provisions regarding Program Access and Reasonable Accommodation. ADOC

will provide reasonable accommodations to Inmates with Disabilities so that those Inmates may
access and participate in Programs offered by ADOC. Reasonable accommodations can include,
but are not limited to, architectural modifications to a facility or part of a facility, supplying
materials in alternate formats, providing augmentative communication devices, providing aides,
and extending time needed to complete a Program. To the extent allowed by the provisions of
the Prison Rape Elimination Act, 42 USC § 15601, et seq. (“PREA”), ADOC may use aides,
including other Inmates, to facilitate access to ADOC Programs for Inmates with disabilities.

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43.

Provisions Regarding RTUs and SUs. Residential Treatment Units (“RTUs”) and

Stabilization Units (“SUs”) are specialized confinements within a prison where Inmates
generally receive access to many services within the confines of the units themselves. Inmates
are provided access to educational and rehabilitative Programs in the units themselves, rather
than in the regular classroom setting that Inmates in general population may utilize.
I.

For ADOC to restrict access to programming for Inmates in these units,

ADOC must conduct an individualized assessment as to why such programming would pose a
risk to the Inmate or others, or why the Inmate’s current mental health status precludes being
able to meaningfully participate in the Program. Each Inmate must be assessed individually for
each Program. The assessment may be made only by a psychiatrist, psychologist, or Certified
Registered Nurse Practitioner (“CRNP”) who has actively treated the Inmate. The assessment
must be in writing and must identify the specific reason(s) why access to a given Program is
restricted. Within three (3) days, not including weekends or holidays, of an Inmate in an RTU or
SU being denied access to a Program, the written explanation of the clinician explaining why
access is restricted must be provided to the affected Inmate.

The Inmate may then take

advantage of the provisions of the ADA Accommodation and Appeal Procedure that is
established as part of this Amended Agreement.
II.

ADOC will reassess Program access for any Inmates housed in an RTU or

SU who have been denied access to Programs after requesting such access each time new
programming is made available or new enrollment into existing programming becomes available.

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III.

While educational and rehabilitative programming is readily transferable

to the RTU and SU housing units, vocational programming is not. 3 To the extent vocational
programming is available only in separate buildings from any housing units at ADOC facilities,
it would be impractical to attempt to bring these programs into RTU/SU housing units given the
nature of those units. Access to the necessary tools to participate in such programming may pose
a heightened security risk in housing units generally. Because both the Prison Litigation Reform
Act and the reasonable accommodations provisions of the Acts place limitations upon unfettered
access to programming in certain circumstance, ADOC will not be required to provide access to
vocational programming for inmates in RTUs and SUs. However, once an inmate is stabilized in
an RTU or SU and then reassigned to general population housing, the Inmate may not be
discriminated against in enrolling in vocational Programs based upon his or her prior admission
to a residential mental health unit.

ADOC currently provides vocational programming and training in a variety of fields. They
include building trades, electrical, body shop and auto mechanics, welding, and beautician.

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44.

Provisions Regarding Identifying, Documenting and Tracking Inmates with

Disabilities. ADOC will identify Inmates with disabilities at initial intake and while in custody.
I.

Evaluation. ADOC will continue to screen, evaluate and test Inmates for

physical, mental or intellectual disabilities at the time of initial intake, consistent with ADOC
Office of Health Services (“OHS”) Policy. ADOC may recognize an Inmate’s disability either
as the result of appropriate evaluation, testing, or self-identification.
A.

Screening. Upon being taken into ADOC’s custody, Inmates will

continue to be screened for disabilities at the time of the initial health assessment. This screening
will be accomplished within five (5) days, not including weekends and holidays, of an Inmate
entering ADOC’s custody.
1.

Within twelve (12) hours of an Inmate arriving at an

ADOC intake facility, the Inmate will be questioned orally consistent with ADOC’s “New
Arrival Intake Screening – Form 2” and ADOC’s “Reception Mental Health Screening
Evaluation – Intake Form 1” concerning:
a.

perceived or recognized disabilities;

prior

previously identified disabilities.

physical,

intellectual

mental

health

treatment and diagnoses; and

The screening will be consistent with OHS Policy and

National Commission on Correctional Health Care (“NCCHC”) Standards. The screening will be
performed by medical and mental health providers employed or contracted by ADOC.
3.

ADOC will reasonably accommodate inmates with vision,

hearing or mobility disabilities during Intake.

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Self-Identification.

Inmates may self-identify as having a

disability.
1.

ADOC may accept the Inmate’s claim of disability.

ADOC is not required to accept an Inmate’s claim of

disability. If ADOC does not accept that claim, it will take appropriate steps to obtain medical
records concerning the Inmate’s self-identified medical or mental health condition and any
treatment for such condition in order to confirm or rebut the disability the Inmate claims.
Alternatively, ADOC will conduct sufficient and appropriate medical or mental health screening
as discussed in the “Examination and Testing” section - Section C immediately below - to
determine whether the Inmate has a disability as defined by the ADA.
C.

Examination and Testing. Regardless of whether an Inmate self-

identifies as having a disability, ADOC will continue to evaluate Inmates for disabilities through
examination and testing.
1.

ADOC will identify Inmates with physical disabilities in

accordance with OHS Policy. A physical exam of each Inmate will be conducted by a medical
provider employed or contracted by ADOC and appropriately licensed by the State of Alabama.
This exam will occur within seven (7) days of intake, not including weekends and holidays.
Inmates in ADOC’s custody at the time of the Court’s final approval of this Amended
Agreement will continue to be screened, evaluated and tested for disabilities to ensure that
physical disability status is identified, treated and accommodated. Within six (6) months of the
Court’s final approval of this Agreement, each Inmate with a health care code of 4 or above will
be screened, tested and evaluated for physical disabilities. Each Inmate with a health care code

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of 3 or less will be evaluated within twelve (12) months of the Court’s final approval of this
Agreement at the time of their annual physical.
2.

ADOC will identify Inmates with intellectual disabilities

through the use of appropriately administered tests under the following regimen.
i.

Beginning eight (8) months after the Court’s final approval of this

Amended Agreement, Inmates coming into or returning to ADOC’s custody (“New Inmates”)
will be screened for intellectual disabilities initially using the Beta III test. This testing will be
performed in a group setting. A New Inmate who scores 80 or lower on the Beta III test will then
be individually screened for intellectual disabilities using the most current version of the
Weschler Abbreviated Scale of Intelligence (WASI). If the Inmate scores 75 or below on the
WASI, no further IQ testing is necessary and the Inmate will be deemed to have an IQ equal to
the Inmate’s WASI score. If the Inmate’s score on the Beta III is 80 or less, but the Inmate’s
WASI score is greater than 75 but less than 79, then the Inmate will be given the most current
version of the Weschler Adult Intelligence Scale, (WAIS), currently the WAIS IV. An Inmate
who scores 79 or higher on the WASI, or 76 or higher on the WAIS, is deemed to have an IQ too
high for further consideration of an intellectual disability. If an Inmate’s score on either the
WASI or the WAIS is 75 or less, then additional testing to determine whether the Inmate has an
intellectual or developmental disability will be performed using the most current version of the
Vineland Adaptive Behavior Scales, other similarly appropriate protocols, or appropriate clinical
assessment.
ii.

All Inmates who are admitted to ADOC’s custody during the eight

months following the Court’s final approval of this Amended Agreement who score 75 or less on
a Beta III test administered by or at the request of ADOC will be determined to have an

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intellectual disability and no further testing will be required. Inmates in the custody of the ADOC
at the time the Court gives final approval to this Amended Agreement who have a record of a
score from a Beta III previously administered by or at the request of ADOC will have those
scores entered into the OHS Module at the time of their next annual or semi-annual classification
review, whichever is earlier, and will be determined to have an intellectual ability and require no
further testing. Current Inmates who have no record of a test score from a Beta III test
administered by or at the request of ADOC will be tested using the Beta III within three (3)
months following the Inmate’s next annual or semi-annual classification review, whichever is
earlier. The results of that testing will be placed in the OHS module after receipt of those results
and those who score 75 or less will be determined to have an intellectual disability and no further
testing will be required. All three categories of inmates in this sub-section will be referred to as
“Current Inmates.”
iii.

ADOC reserves the right, but is not required, to administer the

WAIS to any Inmate, regardless of the Inmate’s Beta III or WASI score, to confirm an IQ score.
iv.

The Parties reserve the right to re-examine the initial threshold

cutoff on the Beta III test when the Beta IV test is introduced and enters use by ADOC and
decide if the cutoff score utilized to trigger the administration of further IQ testing will remain at
80. The parties will evaluate the data showing the distribution of individuals who were utilized to
normalize the score, as well as peer reviewed documentation and articles showing that the Beta
IV test performs at least as well as the WASI, compared to the WAIS.
v.

Appropriately licensed mental health professionals employed by or

contracted by ADOC will utilize the guidelines outlined in the most current Diagnostic and
Statistical Manual of Mental Health Disorders, as published by the American Psychiatric

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Association (“APA”), to determine the criteria in identifying individuals with intellectual
disabilities. The percentage of Inmates identified as having an intellectual disability should be
reflective of findings of peer reviewed articles which estimate that approximately 4-10% of
inmates in State Prisons meet the clinical definition of Intellectual Disability. Further, the
percentage of Inmates identified through intellectual testing as falling below the IQ threshold of
the testing protocol incorporated herein, but who are found not to have an Intellectual Disability
because either, i.) they did not have significant deficits in adaptive behaviors as identified in the
DSM-V, or ii.) because onset of the inmate's intellectual functioning as defined by the results of
IQ testing did not occur during the inmate's developmental period, will be reflective of the
findings of peer reviewed articles which found that approximately 80% of inmates who had an
IQ below the threshold were ultimately found to meet the definition of having an Intellectual
Disability.
3.

For the purpose of determining developmental disabilities, and in addition to the

processes for determining intellectual disabilities for New Inmates and Current Inmates
described in provision 5.I.C.2. immediately above, ADOC may administer the most current
version of the Wide Range Achievement Test (WRAT), currently the WRAT IV, to New
Inmates. If an Inmate scores at less than the 7th grade level on the WRAT, appropriate clinical
assessments will be performed to determine developmental disability status.
4.

The identification of Inmates with intellectual or developmental disabilities will

be made by a psychiatrist or psychologist, although mental health professionals and
psychological associates may participate in the process.

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ADOC will continue to periodically screen, evaluate and test Inmates for

disabilities while Inmates are in ADOC’s custody to ensure that any change in an Inmate’s
disability status is identified, treated and accommodated.
I.

Documentation. ADOC will document the results of self-identification or

examination of Inmates for physical, intellectual or mental disabilities performed at any time,
including at intake and while in custody.
A.

ADOC will transition to documenting the-above described

information into the OHS Computer Module at the time the Computer Module becomes
operative. Prior to the implementation of the Module, the Office of Health Services will provide
training to each category of staff who may access the module concerning information related to
an Inmate’s disabilities that may be entered into the Module.
B.

The Module will electronically capture and store the information

collected by the appropriate screening party at each step of intake. Only appropriate parties and
providers will have access to change and store information on the dashboard and access to the
dashboard will be limited by ADOC security and classification personnel so as not to disclose
personal health information, as that term is defined by HIPAA. The Module will, however, allow
access to general information necessary to properly classify, house, and reasonably
accommodate Inmates with physical or mental disabilities, such as medical codes, mental health
codes, physical limitations, and special needs communications.
C.

Inmate information maintained on the Module will be updated as

additional evaluation, screening, testing and examinations upon Inmates are performed. The
Module will be update with this information no later than three (3) days, not including weekends
and holidays, following the completion of the evaluation, screening, testing or examination.

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Any health services contractor retained by ADOC will be

contractually obligated to maintain the Module and update information contained therein related
to Inmate disabilities or accommodation.
E.

The information obtained will be provided to ADOC personnel and

contractors of ADOC consistent with the provisions of HIPAA.
II.

Tracking. ADOC will track Inmates who have been identified as having a

disability and any accommodations for such disability to ensure that Inmates receive appropriate
care and accommodations for disabilities.
A.

ADOC will utilize the Module to track the care and any

accommodations for Inmates with disabilities that are directed or ordered by ADOC’s medical or
mental health providers.
B.

The Module will display to appropriate users, consistent with the

provisions of HIPAA, the (1) nature of an Inmate’s disability or disabilities; (2) accommodations
ordered by ADOC’s medical or mental health provider-contractors for an Inmate’s disability or
disabilities, including, but not limited to, medical appliances and restrictions on housing or bed
placement; and (3) any security restrictions that are the result of the disability.
C.

ADOC will periodically review the OHS Module and update it as

The information tracked on the Module and by the Facility ADA

appropriate.

Coordinators will be made available to ADOC employees and contractors, consistent with the
provisions of HIPAA, to ensure that reasonable accommodations are made and will be made for
Inmates in need of an accommodation.

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III.

Placement and change in status. In the event an Inmate, during the course

of incarceration by ADOC, is identified by appropriate screening, evaluation or testing as having
(A) a previously undiagnosed or unrecognized disability or (B) an existing disability has
materially changed, ADOC will take all necessary steps to determine whether, and to what
extent, that disability may be reasonably accommodated.
A.

Appropriate medical or mental health staff and ADOC personnel,

including the ADA coordinator at the facility where the Inmate is (or is to be) housed will, within
five (5) days, not including weekends and holidays, of the disability identification or change,
review the information contained on the Module and the information maintained by the Facility
ADA Coordinator on the OHS Module to determine the necessity of accommodation of the
newly identified disability or changed disability. Appropriate reasonable accommodations,
including but not limited to housing assignments- given security codes, health codes and mental
health codes- for such newly identified or changed disability, will be provided within five (5)
days, not including weekends and holidays, of the review of the information by the abovedescribed personnel.
B.

ADOC agrees to transfer Inmates with emergent or acute mobility

or vision impairments from any non-ADA compliant infirmary or Facility under a schedule that,
for security reasons, will be submitted to the court under seal.
IV.

Transfer screening. Inmates transferred from one ADOC facility to

another will undergo a Transfer Screening at the receiving facility.
A.

If, as a result of the Transfer Screening, it appears that an Inmate

with a Disability’s health code should be raised, within 14 days, not including weekends and
holidays, the provider at the receiving facility will communicate with the provider at the sending

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facility to discuss the Inmate’s prior health code and the reasons for increasing the Inmate’s
health code.
B.

If, as a result of that communication, it is determined that the

Inmate with a Disability’s health code should not be raised, then ADOC is not obligated to
update the Module to reflect that discussion.
C.

If, as a result of that communication, it is determined that the

Inmate with a Disability’s health code should still be raised, a comment box within the Module
will be opened and updated to reflect that the communication occurred and the reasons for the
Inmate with a Disability’s increased health code.
D.

The provisions of this section do not apply when an Inmate with a

Disability is transferred from one facility to another due to the Inmate with a disability being
admitted to the Infirmary at the receiving facility.
V.

Use of Information. Information developed and collected during the

Identification, Documentation and Tracking processes outlined above will be used to provide
Inmates with identified or recognized disabilities reasonable accommodations consistent with the
provisions of the Acts as the same are applied to correctional facilities. The information will be
further used as part of the Quality Assurance provisions of this Agreement.

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Provisions Regarding Security Levels. At initial classification, reclassification or

additional classification reviews, ADOC will assign Inmates security levels without regard for
disabilities. ADOC will not increase a security level or custody level for an Inmate based solely
upon an Inmate’s disability. 4 ADOC may lower a security level for an Inmate with a disability
under two general circumstances.
I.

ADOC may, within ADOC’s discretion, lower an Inmate’s security level

to allow an Inmate with a disability to access a program or facility (or portion of a facility) to
which the Inmate would not otherwise be entitled to access due to that Inmate’s security level.
For an Inmate to be considered for a reduction under such a circumstance, all of the following
must apply:
A.

The given program or facility is considered important to the

rehabilitation, education, or treatment of the given Inmate based upon that Inmate’s disability.
To be considered “important”, the program or facility (or portion of a facility) must be focused
on substantially benefiting an Inmate’s health, condition, or life skills in a manner different from,
and in addition to, that for an Inmate without a disability. 5

A “custody level” is “a level of supervision required for an Inmate at the institution, within the
ADOC, where the Inmate is confined. An Inmate can be assigned a custody level of maximum,
close, medium, minimum-in, minimum-out, or community.” ADOC Admin. Reg. 400. A
“security level” is “the rating assigned to various institutions and placement options within the
ADOC and to Inmates through classification procedures for the purposes of placement within the
ADOC”. Id. An Inmate’s security level is utilized, among other purposes, to determine which
prisons, and portions of prisons, an Inmate may be housed.
5

For instance, if ADOC has a program teaching life skills, it is likely that many, if not all,
Inmates may benefit from such a program. However, for Inmates with intellectual disabilities,
one of the primary methods of integrating such an individual into a more normalized existence is
extensive training on life skills to augment deficiencies attendant to their disability. In such a
circumstance, life skill training is particularly targeted and beneficial to such an Inmate in a
manner far greater than the benefit to an Inmate without an intellectual disability.

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The Inmate must have had no major disciplinary findings for at

least one (1) year prior to the date the reduction has been requested. If a weapon was involved in
a prior disciplinary event, then the Inmate must be free of such a disciplinary finding for at least
two (2) years before the date of the request.
C.

The program or facility must be available to a similarly situated

Inmate without a disability.
II.

ADOC may also reduce the security level of an Inmate based upon a

disability where the disability itself makes the Inmate less of a security risk. 6
III.

The reduction in security level may be permanent (subject to re-evaluation

for disciplinary reasons) or temporary.

For instance, Inmates with significant medical issues, mobility issues, and vision issues may
inherently pose a less significant security risk than a similarly situated Inmate without a
disability.

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Provisions Regarding Auxiliary Aids.
I.

ADOC will provide specific and appropriate auxiliary aids and services

necessary for Inmates with disabilities to access all Programs and services provided to Inmates in
the custody of ADOC. Auxiliary aids and services include, but are not limited to, the following:
A.

Sign language interpreters;

Note takers or transcription services;

Written materials in alternate format such as Braille large print;

Telephone handset amplifiers;

Assistive listening devices;

Telephone system compatible with hearing aids;

Hearing aids;

Captioning telecommunication devices for deaf Inmates (TDD or

Video text displays;

Other appropriate methods to aurally deliver materials to Inmates

TTY);

with hearing impairments;
K.

Readers or tutors;

Taped texts; and

Other appropriate methods to make visually delivered materials

available to Inmates with vision impairments.
II.

One or more TTY phones will be available at any facility at which any

Inmate with a hearing impairment who needs such a device in order to effectively participate in a
telephone conversation is housed.

If ADOC chooses to aggregate Inmates with hearing

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impairments in a single, or small number, of facilities then ADOC will ensure that there are a
sufficient number of TTY phones available at that facility so that Inmates with hearing
impairments may make use of the TTY phone consistent with access to phones for a non-hearing
impaired Inmates. TTY phones must be made available during the same periods, and under the
same circumstances, that similarly situated Inmates are allowed access to telephones. However,
and in the event ADOC or a facility places a time or length limit on any telephone call, an Inmate
with a hearing impairment utilizing a TTY phone must be entitled to use of the TTY phone for a
period of four (4) times the period that a similarly situated Inmate without a hearing impairment
is permitted to use the telephone for any one telephone call. ADOC will ensure that all such TTY
phones are kept in good repair and operational.
III.

ADOC or its medical services provider will:
A.

Conduct a minimum of one routine assessment every three (3)

months (or sooner by Inmate request) of each deaf or hard of hearing Inmate regarding the
provision of appropriate auxiliary aids and services;
B.

Keep appropriate medical records regarding auxiliary aids and

Purchase and keep appropriate types of hearing aid batteries in

Provide replacement hearing aids batteries to Inmates requesting

services;

stock;

them no later than 24 hours (excluding weekends and holidays) after such request, if readily
available within the local community. Should a hearing aid require a specific or specialized
battery type not available on the local level, ADOC or its medical vendor will have 72 hours
(excluding weekends and holidays) to secure such specialty battery;

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Send hearing aids to a repair vendor no later than 48 hours

(excluding weekends and holidays) following a validated request by an Inmate for repair of his
or her hearing aid; and
F.

Inform the Inmate when the hearing aid was sent for repair and the

anticipated return date.
IV.

ADOC or its medical services provider will maintain an annual, perpetual

log of all existing hearing aid repairs, to include:
A.

Date the device was received for repair at the facility;

Name of outside vendor performing the repair;

Date the device was shipped or taken to the vendor conducting the

Date the device was received back at the facility.

repair; and

ADOC will provide sign language interpreters to Inmates with hearing

impairments whose primary means of communication is American Sign Language (“ASL.”)
Individuals employed or contracted by ADOC for this purpose will be qualified and able to
effectively communicate in ASL. These individuals will agree to abide with the Code of Ethics
for certified ASL interpreters circumstances where interpreters may be required in the following
listed situations. This list is neither exhaustive nor mandatory, and does not imply that there are
no other situations when it may be necessary or appropriate to provide interpreters to Inmates:
A.

Initial Intake.

Classification processing.

Regularly scheduled health care appointments and programs.

Substance Abuse treatment and other formal programming.

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VI.

Educational classes and activities.

Disciplinary board hearings.

Criminal Investigations.

Classification review interviews.

Formal investigations conducted by ADOC staff.

In instances which do not implicate privacy or security concerns, other

Inmates with the requisite skills may be utilized as sign language interpreters, provided that both
the Inmate with a hearing impairment and the skilled non-disabled Inmate agree to such an
arrangement. The Inmate with a hearing impairment and the skilled non-disabled Inmate must
be able to effectively communicate with each other and the skilled non-disabled Inmate must be
able to effectively and accurately relay the information being provided by the Inmate with a
hearing impairment. The Inmate with a hearing impairment must be informed that he may
decline to allow an Inmate to serve as an interpreter. He must also be informed that should he
decline another Inmate as an interpreter, he will be provided a non-Inmate interpreter at no cost,
and that no adverse action will be taken against him.

Any Inmate who serves as an interpreter

under such circumstances will be required to sign a document indicating that Inmate’s agreement
to abide by all privacy laws, to include HIPAA.
VII.

ADOC may not utilize an Inmate to serve as a sign language interpreter in

any circumstance involving medical or mental health treatment, examinations, or consultations,
or the initiation or investigation of an incident under the Prison Rape Elimination Act (PREA),
except in the very limited circumstance where an extended delay in obtaining an effective
interpreter could compromise the safety of the Inmate with deafness, the performance of first

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responder duties under Section 115.64 of PREA, or the investigation of an incident covered by
PREA.
VIII.

ADOC may not employ an Inmate to serve as a sign language interpreter

in any circumstance involving due process 7 or the investigation or initiation of any incident
relating to assaults, violence, or other potentially criminal activities within the facilities.
IX.

ADOC will provide the Inmate Handbooks, text books and materials,

Orders or Notices from Courts which are required to be posted, or other similar written materials
in alternate formats such as Braille and large print. ADOC need not have on-site all text books
and materials necessary at all times, but must have available, all such materials such as they are
available to sight impaired Inmates as needed. ADOC will have available a sufficient number of
such materials in alternate format such that all Inmates who need access to them may do so
simultaneously.
X.

For written materials that are unique to an Inmate such as medical and

mental health information, disciplinary information, classification information, or other
documents directed to only such Inmate, ADOC will either provide the same in alternate format,
or will create a procedure under which such Inmates may have access to the information
consistent with how an Inmate without a sight impairment would access such materials.
Providing such materials aurally either by taped recording, or providing access to a person who
would read the materials to the Inmate is acceptable. There cannot be limits on the number of
times the Inmate can access the information, but ADOC can create reasonable limitations on
where and when the information can be accessed. If ADOC intends to make such materials

“Due Process” events would include, but would not be limited to, disciplinary proceedings,
investigations of potential or alleged criminal activities by the Inmate, and involuntary
administration of medication.

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available by reading the materials to the Inmate, ADOC will note in the Inmate’s file who, what,
and when such materials are made available.

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Provisions Regarding Emergencies.
I.

ADOC will revise the current Administrative Regulation to include

provisions to ensure that Inmates with Disabilities are evacuated to safe locations in times of
emergencies.

For each Facility that contains Inmates with vision, hearing or mobility

impairments, the Shift Commander for each shift will designate in writing more than one
Correctional Officers who are assigned the duty of ensuring that all such Inmates are evacuated
to a safe location in times of emergencies. A log will reflect the assigned Correctional Officers
for each shift. The Shift Commander will notify the assigned officers who will acknowledge this
assignment in writing. Each facility may implement a Standard Operating Procedure specific to
that facility to ensure compliance based upon the unique features of that facility.
II.

In each Facility, ADOC will designate one or more areas of Rescue

Assistance (as defined under Section 3.5 of the 1991 ADA Standards for Accessible Design), by
November 1, 2016. On or before that date, the facilities will post a written memorandum
outlining the area(s) of Rescue Assistance, and the area(s) must be shown on a map. Both the
written memorandum and map will be posted in the location in which Inmate information is
normally posted. The written memorandum will also be provided in alternate format upon
request. The determination of the number and location of such areas must take into account the
size of the facility, the compactness of the facility, and the number of Inmates with Disabilities
likely to be present in the facility.
III.

For each shift in each facility, the Shift Commander will assign

responsibility to ensure that Inmates found at the area of Rescue Assistance are adequately
protected and evacuated before such personnel may vacate the facility. This assignment will be
done in writing, and the Officer so assigned will acknowledge this assignment in writing. In

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other areas of the facility, ADOC will implement a system under which its personnel ensure that
all Inmates under the control of correctional officers in a particular location are evacuated to a
safe location based upon the nature of the emergency.
IV.

ADOC will implement a system of periodic emergency drills whereby

facilities, on at least a quarterly basis, as part of that drill will to ensure that the officers assigned
the above-described duties fully execute these responsibilities. For the initial two such sessions
in each facility, ADOC will provide a sign language interpreter to explain the process to Inmates
who use sign language as their primary means of communication. All Inmates who have a sight,
hearing, or mobility impairment will be provided a written explanation of the procedure. This
explanation will be provided in an alternative format when appropriate. Thereafter, Inmates who
are transferred into a facility, or who have a newly emergent condition of a sight, hearing, or
mobility impairment, will be provided a copy of the emergency evacuation plan, either written
or, where appropriate, in alternate formats within three (3) business days of: (1) arriving at the
receiving facility or (2) a medical diagnosis of a sight, hearing or mobility impairment. ADOC
will provide access to a sign language interpreter to any hearing impaired Inmate who uses sign
language as his or her primary means of communication in order to answer and explain the
procedure.
V.

The required policy modifications discussed in this Provision are intended

to supplement any existing policies and Standard Operating Procedures currently in place at each
facility, and not to supersede them.

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Provisions Regarding Accommodations and Appeals.
I.

Effective February 1, 2017, any Inmate who has, or believes he or she has,

a disability as defined by the Acts may make Requests for Accommodations and pursue Appeals
of decisions concerning Requests for Accommodations.
II.

An Inmate’s Request for Accommodation or Appeal will be in writing and

contain information about the alleged discrimination, Request for Accommodation, or reason for
the Appeal. It will be set out on the ADA Request Form (Exhibit A) or any later form generated
by ADOC for the same purpose. ADA Request Forms will be made available to Inmates with
Disabilities through the Shift Commander’s office or centralized security cubicle, the Facility
ADA Coordinator’s office, and the Law Library, provided the Facility maintains a Law Library.
ADA Request Forms will be provided to Inmates through either written or oral request.
III.

The Request for Accommodation or Appeal should be submitted by the

Inmate as soon as possible. Appeals to the Statewide ADA Coordinator must be made within
thirty (30) calendar days after a denial of a Request for Accommodation. The Request for
Accommodation or Appeal must also generally specify the type of accommodation or service the
Inmate seeks. The ADA Request Form must be dated and signed by the Inmate. Boxes or similar
repositories will be placed in the Facility for depositing such forms or the forms may be given by
the Inmate (including, but not limited to, Inmates whose movement is restricted due to their
custody level and are unable to deposit the form on their own) to any ADOC officer or employee
for deposit in such boxes. The box, or repository to deposit the ADA Request Form, will be
located in places in which all Inmates whose custody permits them movement in a Facility may
have access. In the event that an Inmate is unable to complete the form for any reason, ADOC
personnel will assist the Inmate in completing the form. Upon receipt of such a form, the Facility

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ADA Coordinator will review, document, respond, and retain a copy of the form and response
consistent with the duties and time parameters specified in the part of this Agreement concerning
the duties of ADA Coordinators. If the Facility ADA Coordinator is unsure what is being
requested in the Form, the Facility ADA Coordinator will personally interview the Inmate and
make appropriate inquiries to inform the Facility ADA Coordinator and Statewide ADA
Coordinator about the nature of the Request for Accommodation and any appropriate
accommodation, or Appeal.
IV.

The safety, security, and health of the Inmate making a Request for

Accommodation or Appeal, and that of other Inmates, and the security of the Facility will
always be an overriding concern in making reasonable accommodations for Inmates with
disabilities.
V.

In the event that the Facility determines that it cannot reasonably

accommodate a n Inmate with a Disability, consideration may be given to Facilities and
programming available at various other Facilities of an appropriate security level to accommodate
an Inmate’s particular disability, to include transfers.

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10.

Provisions Regarding ADA Coordinators. ADOC will employ Facility ADA

Coordinators and a Statewide ADA Coordinator within the time frames established for ADOC’s
Self-evaluation and Transition Plan.
I.

Facility ADA Coordinators.
A.

ADOC will designate a responsible employee (“Facility ADA

Coordinator”) at each ADOC facility to coordinate its efforts to comply with and carry out its
responsibilities under the Acts with respect to any current or future Inmate in the physical
custody of ADOC who has a disability. The staff at each ADOC facility will receive notice of
the designated Facility ADA Coordinator for the facility.
B.

The Facility ADA Coordinators will be direct reports to the warden

of their assigned facility concerning their duties as a Facility ADA Coordinator and may have
duties in addition to those as ADA Coordinator.
C.

In each ADOC facility, the name, office address, and telephone

number for that facility’s Facility ADA Coordinator will be posted in each dormitory, chow hall,
visitation area, library, medical care treatment areas, mental health care treatment areas, chapel,
canteen, and educational areas. Each Facility ADA Coordinator’s office will be in a location
readily available to Inmates in general population. This posting will also contain the name,
office address, and telephone number of the Statewide ADA Coordinator, described herein, as
well as the locations of ADA Request Forms and drop boxes for ADA Request Forms within
each facility.
D.

Each Facility ADA Coordinator will receive and respond to all

ADA Request Forms for that facility or transmit ADA appeals to the Statewide ADA
Coordinator. The Facility ADA Coordinator will keep a file containing all ADA Request Forms

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received and all responses given to requests for accommodations and appeals. Should an Inmate
require or request assistance completing an ADA Request Form, the Facility ADA Coordinator
will assist the Inmate with completing the form. Each Facility ADA Coordinator will prepare a
monthly report regarding the requests for accommodations received and the accommodations
granted. The monthly report will be submitted to the Statewide ADA Coordinator by the seventh
(7th) day of the following month. The monthly report will, at a minimum, include the following
information:
1.

Number of ADA requests

Number of granted ADA requests

Number of denied ADA requests

Number of ADA requests denied because the requests

involved a medical or mental health issue.
5.

Number of partially denied ADA requests

Number of ADA requests partially denied because the

requests involved a medical or mental health issue.
7.

Narrative about the status of any ADA violations

discovered by the Facility ADA Coordinator.
E.

Each Facility ADA Coordinator will review existing ADOC

administrative regulations, existing facility standard operating procedures, and administrative
directives to assess compliance with the facility’s obligations under the ADA and will provide
any resultant recommendations regarding compliance to both the Statewide ADA Coordinator
and the facility’s warden.

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Each Facility ADA Coordinator will attend regularly occurring

facility staff meetings to discuss the facility’s ADA compliance and to respond to any staff
questions regarding ADA compliance.
G.

All Facility ADA Coordinators will attend an annual in-person

meeting with the Statewide ADA Coordinator, and will attend quarterly telephonic meetings
with the Statewide ADA Coordinator.
H.

The Facility ADA Coordinators will ensure that copies of ADA

Request Forms, or the information contained therein, are maintained in the Inmate’s file.
I.

The Facility ADA Coordinators will ensure on a monthly basis that

all assistive devices assigned to the facility are available and in working order. The Facility
ADA Coordinators will also ensure on a monthly basis that all alternative format forms are
available. The Facility ADA Coordinators will confirm the availability of assistive devices and
alternative format forms in the monthly report described above.
J.

At least monthly, each Facility ADA Coordinator will tour the

facility, to include any area an Inmate is permitted to access, to determine if any Inmates are
housed in an inappropriate location, any ADA compliant fixtures are in disrepair or nonoperational, any part of the physical structure is in need of repair which would affect ADA
compliance, or if any policy, procedure, or operation in not being conducted in a manner
necessary to ensure compliance with ADOC’s ongoing responsibility under the ADA. If any
deficiencies are noted, the Facility ADA Coordinator will, within 24 hours, notify in writing the
appropriate personnel charged with remedying the non-compliant program or structure, the
Warden, and the Statewide ADA Coordinator of the nature of the problem. The Facility ADA

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Coordinator will periodically review whether the problem identified has been rectified until such
time as it is remedied.
K.

Facility ADA Coordinators will, upon receipt, immediately review

all ADA requests to determine whether a request concerns an urgent situation. In the event of an
urgent situation, the Facility ADA Coordinator will respond to the request in writing and
provide, if required, the requested accommodation within three (3) days of receipt of the request,
not including weekends and holidays. In all other situations, the Facility ADA Coordinator will
respond to the request in writing within ten (10) days of receipt of the request, not including
weekends and holidays.
II.

Statewide ADA Coordinator.
A.

ADOC will employ a responsible employee (“Statewide ADA

Coordinator”) to coordinate its efforts statewide to comply with and carry out its responsibilities
under the Acts with respect to any current or future Inmate in the physical custody of ADOC
who has a disability. The staff at all ADOC facilities will receive notice of the designated
Statewide ADA Coordinator.
B.

The Statewide ADA Coordinator will be a full-time position. The

Statewide ADA Coordinator will answer directly to Inspector General of the ADOC.
C.

In each ADOC facility, the name, office address, and telephone

number for the Statewide ADA Coordinator will be posted in each dormitory, chow hall,
visitation area, library, medical care treatment areas, mental health care treatment areas, chapel,
canteen, and educational areas.
D.

The Statewide ADA Coordinator will receive, review, and

maintain monthly reports from the Facility ADA Coordinators at each facility. The Statewide

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ADA Coordinator will prepare quarterly reports summarizing the data received from Facility
ADA Coordinators via their respective monthly reports and submit the quarterly reports by the
fifteenth (15th) day in the months of April, July, October, and January, to the ADOC Inspector
General and the Associate Commissioner for the Office of Health Services.
E.

The Statewide ADA Coordinator will review existing ADOC

administrative regulations, facility standard operating procedures provided by Facility ADA
Coordinators, and administrative directives to assess compliance with the ADOC’s obligations
under the ADA and to provide any resultant recommendations regarding compliance to the
Commissioner, the facility wardens, and the Facility ADA Coordinators.
F.

The Statewide ADA Coordinator will inspect every ADOC major

and work release facility, to include tours of the physical plant, interviews with staff and
interviews with Inmates with disabilities, for compliance with the Acts as follows:
1.

Each Facility will be inspected on an annual basis.

Facilities

where

Inmates

with

vision

mobility

impairments are housed will be inspected by the Statewide ADA Coordinator for compliance
with the Acts on a bi-annual basis. At least one (1) of these inspections will be unannounced.
G.

The Statewide ADA Coordinator will conduct the Quality

Assurance Program audits as described in the Quality Assurance part of this Agreement.
H.

The Statewide ADA Coordinator will be audited at least annually

by the ADA Committee described in the Quality Assurance Part of this Agreement.
I.

The Statewide ADA Coordinator will review and provide input

regarding any proposed ADA training offered by the ADOC to its administrative staff, facility
staff, or the staff of any third-party providers.

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All appeals of ADA requests will be reviewed by the Statewide

ADA Coordinator. Such appeals will be received by the Statewide ADA Coordinator directly or
forwarded to the Statewide ADA Coordinator from the Facility ADA Coordinator or the warden
where the aggrieved Inmate is housed. The Statewide ADA Coordinator will respond in writing
to any ADA appeal within fifteen (15) days from receipt of the appeal, not including weekends
and holidays. The Statewide ADA Coordinator will maintain a file of all ADA appeals and
responses. The file will contain all of the following for each appeal to the extent such documents
were generated: the original ADA request, the denial of the original request, the Inmate’s appeal
of the denied request, and the written response to the Inmate’s appeal.
K.

For the first twelve (12) months following Final Approval of the

Amended Agreement, the Statewide ADA Coordinator will:
1.

Conduct annual in-person meetings for all Facility ADA

In addition to the above, Conduct

Coordinators;
a second in-person

meeting with the Facility ADA Coordinators for facilities where Inmates with vision or mobility
impairments are housed; and
3.

Host monthly telephonic meetings with all facility ADA

Coordinators.
L.

For the two (2) years following twelve (12) months after Final

Approval, the Statewide ADA Coordinator will:
1.

Conduct annual in-person meetings with all Facility ADA

Coordinators;

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In addition to the above, conduct a second in-person

meeting with Facility ADA Coordinators for facilities where inmates with vision or mobility
impairments are housed; and
3.

Host quarterly telephonic meetings with all Facility ADA

Coordinators.
M.

After three (3) years following Final Approval, the meetings

described in paragraphs K and L immediately above may be reduced to an annual in-person
meeting for all Facility ADA Coordinators and quarterly telephonic meetings with all Facility
ADA Coordinators.
N.

The Statewide ADA Coordinator will respond to any questions

from Facility ADA Coordinators regarding Inmate requests for accommodations or ADA
accessibility issues affecting specific facilities.

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11.

Provisions Regarding Training of ADOC Staff. ADOC will provide initial and

periodic training concerning the provisions and requirements of the ADA to both security staff
(i.e., those who are required to attend the Correctional Officer Training Academy) and ADA
Coordinators.
I.

Initial Training.
A.

Security Staff.

The Alabama Disabilities Advocacy Program

(“ADAP”) will, in conjunction with ADOC, provide training concerning the provisions and
requirements of the ADA to the first class of students entering the Correctional Officer Training
Academy following January 1, 2017. This training will consist of no less than four (4) hours of
classroom instruction. Thereafter, ADOC will provide the four (4) hours of training to each class
entering the Correctional Officer Training Academy. ADAP will allow ADOC to utilize all
curricula, materials and the like generated by ADAP for this instruction. This further includes,
without limitation, video recordings of the instruction provided by ADAP. ADOC will not
disseminate these materials outside of ADOC absent a subpoena or request for production.
ADOC agrees to compensate ADAP for its services in providing this training. ADOC and ADAP
will enter into a memorandum of understanding that further described the parties’ obligations
and commitments concerning this training.
B.

ADA Coordinators.

ADAP will, in conjunction with ADOC,

provide training concerning the provisions and requirements of the ADA to all Facility ADA
Coordinators and the Statewide ADA Coordinator beginning on or before January 31, 2017.This
training will consist of no less than six (6) hours of classroom instruction. ADAP will provide
four (4) hours of instruction to the Coordinators concerning the provisions and requirements of
the ADA and their responsibilities as ADA Coordinators. ADOC will provide two (2) additional

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hours of instruction concerning ADOC’s internal policies and procedures as the same relate to
the duties of an ADA Coordinator. Thereafter, ADOC will provide the six (6) hours of training to
any ADA Coordinators it designates. ADAP will allow ADOC to utilize all curricula, materials
and the like generated by ADAP for this instruction. This further includes, without limitation,
video recordings of the instruction provided by ADAP. ADOC will not disseminate these
materials outside of ADOC absent a subpoena or request for production. ADOC agrees to
compensate ADAP for its services in providing this training.
II.

Annual Training.
A.

Security Staff. ADOC will require all members of its Security

staff to participate in two (2) hours of annual training concerning the ADA. ADAP will provide
this training during ADOC’s first training session in a selected ADOC region in each of the
calendar years of 2018, 2019 and 2020. Thereafter, ADOC will provide this training. ADAP will
allow ADOC to utilize all curricula, materials and the like generated by ADAP for this
instruction. This further includes, without limitation, video recordings of the instruction provided
by ADAP. ADOC will not disseminate these materials outside of ADOC absent a subpoena or
request for production. ADOC agrees to compensate ADAP for its services in providing this
training.
B.

ADA Coordinators.

ADOC will require all Facility ADA

Coordinators and the Statewide ADA Coordinator to participate in two (2) hours of annual
training concerning the ADA. ADAP will provide this training during the calendar years of 2018,
2019 and 2020. Thereafter, ADOC will provide this training. ADAP will allow ADOC to utilize
all curricula, materials and the like generated by ADAP for this instruction. This further includes,
without limitation, video recordings of the instruction provided by ADAP. ADOC will not

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disseminate these materials outside of ADOC absent a subpoena or request for production.
ADOC agrees to compensate ADAP for its services in providing this training.

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12.

Provisions regarding a Quality Assurance Plan (including Quality Assurance

Tools)
I.

ADOC will implement a Quality Assurance Program (“QAP”) to assess

its compliance with the terms of the Settlement Agreement, as well as its ongoing legal
obligations under the ADA. The QAP will be administered by ADOC’s Statewide ADA
Coordinator. The Statewide ADA Coordinator will conduct all QAP audits described herein
except the QAP audit of the Statewide ADA Coordinator. The QAP audit of the Statewide ADA
coordinator will be conducted by the ADA Committee described herein. The Quality Assurance
Program will include major audits, periodic corrective audits, and minor audits. 8
A.

At least annually, the Statewide ADA Coordinator will conduct a

major audit of each facility’s Facility ADA Coordinator to ensure compliance with the terms of
the settlement agreement and its ongoing legal obligations under the ADA.
1.

An audit tool including the following areas of inquiry will

be utilized in this process:
a.

All ADA accommodations as well as grievance and

ADA training for ADOC staff regarding Inmates

Access

appeals processes;

with disabilities;
to

programming

for

Inmates

with

disabilities;
8

Major audits are defined as utilizing all sections of the auditing tool. Periodic corrective audits
are defined as audits triggered by deficiencies found in either a major audit or a minor audit of
some subset of the sections of the auditing tool to determine if the resulting corrective action
plan has been implemented and is effective in correcting deficiencies found. Minor audits are
defined as regularly scheduled audits utilizing a rotating set of less than all the sections of the
auditing tool.

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Assignments of health codes by ADOC’s healthcare

provider and security levels for Inmates with disabilities;
e.

Identification, tracking, and transfer of Inmates with

Provision of accessible housing and facilities and

disabilities; and

maintenance of the same.
2.

The audit tool to measure compliance with the ADA will be

annually reviewed following the first year it is put into use and modified as necessary or
appropriate to ensure compliance. The initial data to be evaluated is appended hereto under the
title “Quality Assurance Audit Tools.” Any facility audited pursuant to the Quality Assurance
Program will maintain at least 85% compliance with each subject area. A failure on any or all
subject areas will subject the facility to a corrective audit, no later than six (6) months after
completion of the annual audit, covering at least those areas in which the facility failed to meet
85% compliance.
3.

At the conclusion of each QAP audit (whether major,

corrective, or minor) a written report of the audit, showing the percentages of compliance in each
subject area will be provided to the facility Warden, ADOC’s Office of Health Services
(“OHS”), the Statewide ADA Coordinator, the Facility ADA Coordinator at the audited facility.
The Statewide ADA Coordinator will maintain a complete record of all audits performed
(whether major, corrective, or minor) along with all corresponding corrective action plans.
4.

If any deficiencies are identified, within fifteen (15) days

(excluding weekends and holidays) after the written report is submitted, the facility Warden, a
representative from OHS, the Statewide ADA Coordinator, and the Facility ADA Coordinator

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will meet and confer telephonically or in person to develop a corrective action plan to remedy
any deficiencies found. All corrective action plans will be in writing. After a corrective action
plan has been adopted and implemented, a corrective audit will follow. During the corrective
audit, the auditor will review whether the facility has implemented the terms of the corrective
action plan and whether the underlying compliance deficiencies have been resolved. The results
of the corrective audit will be in writing, and if continuing deficiencies are noted, additional
corrective actions will be developed and additional corrective audits will be conducted to achieve
compliance.
B.

In addition to the annual major audit, each facility will be subject

to periodic minor audits which are audits of some portions of the full audit. The subject areas of
the minor audits will be rotated annually to ensure that each subject area is reviewed at each
facility through the minor audit process at least every three (3) years. The facilities will not be
given notice of the timing or subject of minor audits. The corrective audit and corrective action
plan processes described herein also apply to deficiencies found via the periodic minor audit
process.
II.

An ADA Committee will be appointed by the ADOC Commissioner to

include a minimum of five (5) persons, at least forty percent (40%) of whom are from outside the
ADOC. The outside representatives will include one representative from the Governor’s Office
on Disability and one representative from the Alabama Department of Mental Health. If no
representative from the Governor’s Office on Disability or the Alabama Department of Mental
Health is willing or available to serve on the Committee, the ADOC Commissioner will recruit
an appropriate number of representatives from similarly situated agencies or interest groups

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outside of ADOC. The ADA Committee will meet as needed, but at least once annually, to audit
the Statewide ADA Coordinator.
A.

The audit of the Statewide ADA Coordinator will include the

following areas of inquiry:
1.

Maintaining compliance with the ADOC’s policies and

procedures relating to Inmates with disabilities;
2.

A review of the Statewide ADA Coordinator’s quarterly

A review the Facility ADA Coordinators’ monthly reports;

A review of the files of Inmate ADA grievance appeals

reports;

and

maintained by the Statewide ADA Coordinator.
B.

The audit tool to measure the Statewide ADA Coordinator’s

compliance with these subject areas will be periodically reviewed and modified to ensure
compliance.

The initial data to be evaluated is appended hereto. Pursuant to the Quality

Assurance Program, the Statewide ADA Coordinator will maintain at least 85% compliance with
each subject area.

A failure on any or all subject areas will subject the Statewide ADA

Coordinator to a corrective audit, no later than six (6) months after completion of the annual
audit, covering at least those areas in which the Statewide ADA Coordinator failed to meet 85%
compliance.
C.

At the conclusion of each QAP audit of the Statewide ADA

Coordinator, a written report of the audit, showing the percentages of compliance in each subject
area, will be provided to the Commissioner, ADOC’s Office of Health Services (“OHS”), and

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the Statewide ADA Coordinator. The Statewide ADA Coordinator will maintain a complete
record of all audits performed along with all corresponding corrective action plans.
D.

If any deficiencies are identified, within fifteen (15) days

(excluding weekends and holidays) after the written report is submitted, the ADOC Inspector
General, a representative of OHS, a representative of the ADA Committee, 9 and the Statewide
ADA Coordinator will meet and confer telephonically or in person to develop a corrective action
plan to remedy any deficiencies found. All corrective action plans will be in writing. After a
corrective plan has been adopted and implemented, a corrective audit will follow. During the
corrective audit, the ADA Committee will review whether the Statewide ADA Coordinator has
implemented the terms of the corrective action plan and whether the underlying compliance
deficiencies have been resolved. The results of the corrective audit will be in writing, and if
continuing deficiencies are noted, additional corrective actions will be developed and additional
corrective audits will be conducted to achieve compliance.
III.

QA Audit Tools.
A.

Intake Facilities.

The audit of medical records at intake will

consist of a review of one hundred (100) randomly selected medical records of Inmates at intake.
The review will include a review of records from a least six (6) separate months and will include
a review of medical records of Inmates who may no longer be housed in the intake facility. All
Inmates who were screened during the previous period 10 will be entered into a database under
which a computer or other similar method of random selection is utilized to ensure against
9

The ADA Committee cannot name as its representative the OHS staff member who serves on
the Committee. It is permissible for OHS to name as its representative the member of its staff
who serves on the ADA Committee.
10

“Previous period” is defined as the period since the most recent audit of the same kind as being
currently undertaken.

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selection bias. This selection process will occur ten (10) days before the scheduled audit, and
ADOC will ensure that, if the original file is not otherwise accessible, a duplicate copy of the
portions of the sections of the medical record necessary for the audit for an Inmate not currently
housed at the intake facility is transported to the intake facility for audit purposes. The following
areas will be assessed:
1.

Was the Inmate questioned, within twelve (12) hours of

arrival at ADOC’s intake facility concerning: perceived or recognized disabilities; prior physical,
intellectual, or mental health treatment and diagnoses; and previously identified disabilities?
2.

Did the Inmate receive a screening for physical and mental

health disabilities within seven (7) days, not including weekends and holidays, of arrival at
ADOC’s intake facility by a properly qualified medical and mental health provider? 11
3.

Within seven (7) days, not including weekend and holidays,

of the Inmate’s physical and mental health screening by a qualified medical and mental health
provider were all approved profiles, medical and mental health codes, accommodations, and
disabilities entered into the Health Services Module computer system?
4.

Within three (3) days, not including weekends and

holidays, of a medical or mental health provider entering a profile, recommending an
accommodation for disabilities, finding an ADA qualified medical or mental health condition, or
creating a mental health code of two (2) or greater, was the Facility ADA Coordinator notified in
writing of each such an event?

A “properly qualified” provider is defined as the medical and/or mental health provider
authorized to conduct the initial screening for Inmates upon arrival at an ADOC facility.

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Within seven (7) days, not including weekends and

holidays, of arrival of an Inmate at ADOC’s Intake Facility, did the Inmate receive a Beta and a
WRAT?
6.

Within three (3) days, not including weekends and

holidays, of an Inmate scoring eighty (80) or below on the Beta or a scoring seven (7) or below
on the WRAT, was the Inmate scheduled for further testing and review by a psychologist for the
possible existence of an intellectual disability or a learning disability?
7.

For all Inmates scoring eighty (80) or below on the Beta

and/or scoring seven (7) or below on the WRAT, were all testing, interviews, and examinations
conducted by a psychologist completed within thirty three (33) days from the date of notification
of the Beta or WRAT score?
8.

For any Inmate scoring 75 or below on the Beta at the time

of arrival in ADOC’s custody, was ADOC’s director of classification and chief psychologist
notified within three (3) days, not including weekends and holidays?
9.

For any Inmate who arrived with a prescription for a

physical or mental health medication, was the Inmate examined by a properly qualified
medical/mental health provider before the medication which the Inmate entered ADOC’s intake
facility ran out?
10.

For any Inmate who arrived with a prescription for a

physical or mental health medication, was that prescription validated and, once validated, did the
Inmate receive that medication(s) until he/she was seen by a medical/mental health provider?
11.

Did Inmates arriving at ADOC’s intake facility receive

information on their rights under the ADA, and the appropriate accommodation, grievance, and

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appeal procedures, within three (3) days of arrival, not including weekends and holidays, and
acknowledge receipt of such information in writing?
12.

An ADOC intake facility also will be subject to, and

assessed under the “Non-Intake Facilities” audit with respect to Inmates who have been
continuously housed in such a facility for the previous six (6) months.
B.

Non-Intake Facilities.

The audit of a non-intake facility will

consist of a review of the medical and mental health records of fifty (50) Inmates selected at
random. 12 The following areas will be assessed:
1.

Did each Inmate receive a timely reassessment of their

medical and mental health condition as required by ADOC policies?
2.

If any Inmate has received an ADA accommodation which

is not contained on the Health Services Module, does the ADA Coordinator have a log of all
such accommodations?
3.

The audit will also consist of a review of forty (40) granted,

denied, or partially granted requests for ADA accommodation/appeals.
4.

Were all granted accommodations/appeals entered into the

health services module computer system within three (3) days, not including weekends and
holidays, of the requests being granted?
C.

Facility ADA Coordinators.

The audit of a facility ADA

Coordinator will consist of a review of twenty (20) requests for accommodations, twenty (20)
transfers of an Inmate with an ADA accommodation to another facility, ten (10) requests for
accommodation, and five (5) appeals, and will also include an in-person interview with ten (10)
12

The random selection process described in “Intake Facility” section herein or a similar
procedure is acceptable.

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Inmates who have filed requests for ADA accommodations, from the previous period. 13 The
following areas will be assessed during the audit.
1.

Were

all

accommodations,

requests

and

appeals

answered/forwarded, within the applicable time parameters?
2.

Does the response adequately identify the reason for any

denial or partial denial of a request for an ADA accommodation?
3.

For each request for an accommodation that is denied or

denied in part, is there written confirmation that the Facility ADA Coordinator met with the
Inmate in person within the applicable time parameters?
4.

Is there a monthly report containing all the elements of the

“Facility ADA Coordinator’s Monthly Report”?
5.

Is there a monthly written report indicating that the Facility

ADA Coordinator conducted a walkthrough of all areas of the facility where Inmates are allowed
access, along with a written record of any deficiencies found?
6.

Did the Facility ADA Coordinator attend all mandatory

annual training required of Facility ADA Coordinators?
7.

Did the Facility ADA Coordinator attend all required

periodic meetings of ADOC ADA staff?
8.

Did the Facility ADA Coordinator transmit all information

not contained on the health services computer module regarding an Inmate’s accommodation
and/or profile to the receiving facility within three (3) days, not including weekends and
holidays, of the Inmate’s transfer?

If fewer than the allotted number exist, then all of a particular category will be reviewed.

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Statewide ADA Coordinator.
1.

A review of the Statewide ADA Coordinator will consist of

a review of materials in his/her possession. It will include:

Does the Statewide ADA Coordinator have a

complete file containing all facility audits and results?
b.

Does the Statewide ADA Coordinator have a

complete file of all corrective action plans for all facilities?
Does the Statewide ADA Coordinator have a

complete file of all monthly facility reports?

Does the Statewide ADA Coordinator have written

proof of the mandatory facility walk-throughs?

Did the Statewide ADA Coordinator attend all

mandatory annual training?

periodic meetings of ADOC ADA staff?

Does the Statewide ADA Coordinator have an

annual report showing any modification of facilities, policies, procedures, or regulations which
must be implemented to ensure continued compliance with the ADA?
2.

The Statewide ADA Coordinator will also be assessed by

reviewing the appeals process. To effectuate this, twenty (20) appeals from the previous period
will be reviewed. It will include:

Did the Statewide ADA Coordinator review and

respond within the time parameters contemplated herein?

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For each request for an accommodation or

grievance that is denied or denied in part, is there written confirmation that the Facility ADA
Coordinator met with the Inmate in person within the applicable time parameters?
E.

Evaluation of Results.

For purposes of determining the

requirement for a “corrective audit” as contemplated herein, the 85% threshold will apply to each
subsection for each applicable person/facility. 14
F.

Notice. ADOC will post the provisions of this agreement in the

law library, or if there is no law library, the area where other inmate information is made
available of each of its prison and work release facilities. It will amend the Inmate handbooks to
include the provisions of this agreement. The substance of what will be posted in the libraries
and in the Inmate handbooks will be drafted by ADOC and Plaintiffs jointly. All such
documents will be available in alternative formats to include large print and braille.

For instance, if a review of medical records is contemplated only those instances in which data
showing a failure to perform, or acceptable performance will be used. If 50 records are used, but
for a particular issue less than 50 individuals would have been subject to such a process, then
such non-applicable instances will be ignored.

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13.

Unresolved Claims. Plaintiffs bring claims in this lawsuit that are not resolved by

this Amended Agreement and that are subject to be tried in Phase 2 of this litigation. ADOC will
not contend in the Phase 2 Trial that Plaintiffs were required to resolve these claims in this
Amended Agreement. Plaintiffs are not waiving and reserve the right to pursue additional
architectural changes that are not ADA-based for medical or mental health purposes as part of
Phase 2 of this lawsuit. Nothing in this paragraph will be construed as an admission on the part
of the Defendants that there are architectural changes needed, necessary, or required or that, to
the extent such architectural changes are needed, necessary, or required, a cause of action exists
to mandate that such changes be made.
MONITORING
14.

The Parties agree that monitoring of ADOC’s compliance with the terms of this

Amended Agreement is necessary and that ADAP will serve as the monitor. ADOC will allow
ADAP reasonable access to facilities, documents, staff, procedures, logs, records, Inmates, and
other similar informational sources in order to ensure that compliance. ADAP will be entitled to
conduct interviews with Inmates and staff to assess compliance with the terms of this Amended
Agreement.
15.

ADAP agrees to be bound by any Protective or Court Orders entered in this case

to protect the confidentiality of Inmate records and sensitive security information.
16.

ADAP will prepare a written report on ADOC’s efforts to meet the requirements

of this Agreement and any plan to effectuate the terms of this Amended Agreement at least
quarterly. Each report will indicate all areas in which the ADOC is, or is not, in Substantial
Compliance. Such report will be provided to ADOC and all counsel of record. If ADAP
believes that ADOC is not in Substantial Compliance with the terms and provisions of this
Amended Agreement and any plan to effectuate its terms, ADAP will provide written

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recommendations of actions that it believes necessary to achieve Substantial Compliance with
the terms of the provision or provisions. ADOC will then have twenty (20) days to provide
written comments, objections, or remedial action plans in response. The Parties will meet and
confer to attempt to address deficiencies identified by ADAP.

I7.

Monitoring will continue for a period not exceeding six (6) years from the

execution of this Amended Agreement, regardless of whether ADOC does or does not build new
prisons. In the event that ADOC has undertaken to build new prisons, but they have not been
completed as of January 1, 2020, monitoring will continue until two (2) years after the
completion of the prisons.
I 8.

If ADAP finds evidence of any violation of law which does not involve the

subject matter of this Amended Agreement, it is obligated to report that to the ADOC General
Counsel, or her designee.
DISPUTE RESOLUTION PROCESS
I 9.

During the assessment, implementation, or monitoring periods of this Amended

Agreement (see Sections V-VI, above), if Plaintiffs’ counsel or the monitor believe that ADOC
is not complying with some aspect of the Amended Agreement, they will notify counsel for the
ADOC, in writing, of such a belief identifying any facts supporting the belief. ADOC will
investigate the allegations and respond in writing through its counsel within thirty (30) days after
receipt of the notification. If Plaintiffs’ counsel or the monitor is not satisfied with ADOC’s
response, the Parties will negotiate in good faith to resolve the issue(s). If the Parties are unable
to resolve the issue(s) timely and satisfactorily, the Parties agree to present the issue(s) for
arbitration before Hon. John E. Ott, U.S. Magistrate Judge for the Northern District of

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Alabama. 15 This provision regarding arbitration applies regardless of whether the issue affects
twelve (12) or more inmates, as discussed below.
20.

If the issue is one that impacts fewer than twelve (12) inmates, resolution through

the arbitration process shall be the final resolution under this Amended Agreement. Nothing in
this Amended Agreement establishes a compulsory administrative prerequisite with which an
Inmate must comply prior to the initiation of a lawsuit alleging violations of the Acts suffered
during the Inmate's term of incarceration. Nothing in this agreement shall prevent an Inmate
from exercising his/her rights under ADOC’s ADA Grievance Process.
21.

If the issue is one that impacts twelve (12) or more Inmates and the Parties are

unable to resolve the issue(s) timely and satisfactorily through negotiation or the arbitration
process, either party may bring the issue before the Court for resolution. Any issue brought
before The Court will be decided on an abuse of discretion standard.
22.

Issues relating to ADOC system-wide or facility specific policies, or physical

barriers within a specific facility, shall be presumed to impact twelve (12) or more inmates. The
Arbitrator shall have the authority to decide whether an issue impacts twelve (12) or more
inmates.
23.

In the event that the arbitrator or Court, acting as final decision-maker, finds that

ADOC has failed to comply with this Amended Agreement, ADOC will submit a plan to remedy
the deficiencies identified within thirty (30) days of the decision. In the event that such a plan
does not timely remedy the deficiencies, the Court retains the authority to enforce this Amended
15

If, at any time during the term this Amended Agreement is in effect, Judge Ott or any
successor arbitrator becomes unavailable to arbitrate disputes, the Parties will agree upon a
replacement arbitrator. If the Parties are unable to agree upon a replacement arbitrator, they will
petition the Court to appoint a replacement arbitrator who will be a current or former U.S.
Magistrate Judge from one of the U.S. District Courts sitting in Northern, Middle or Southern
Districts of Alabama.

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Agreement through all remedies provided by law. Any attorneys’ fees awarded are subject to the
provisions of Section XII of this Amended Agreement.
24.

The Court will be the sole forum for enforcement of this Amended Agreement.

Any order to achieve Substantial Compliance with the provisions of this Amended Agreement
will be subject to the provisions of the Prison Litigation Reform Act, 18 U.S.C. § 3626.

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RESERVATION OF JURISDICTION AND ENFORCEMENT

25.

The Parties consent to the reservation and exercise of jurisdiction by the Court

over disputes between the Parties and among the Parties arising out of this Amended
Agreement.

26.

For purposes of jurisdiction and enforcement of this Amended Agreement only,

the Parties jointly request the Court to find that this Amended Agreement satisfies the
requirements of 18 U.S.C. § 3626(a)(1)(A) in that it is narrowly drawn, extends no further than
necessary to correct the violation of a federal right, and is the least intrusive means necessary to
correct the violation of the federal rights of the Plaintiffs.
27.

The Court will retain jurisdiction to enforce the terms of this Amended

Agreement, once approved, until the Agreement is terminated.
28.

This Amended Agreement may be enforced only by the Parties hereto. Nothing

contained in this Amended Agreement is intended, or will be construed, to evidence an intention
to confer any right or remedy upon any person other than the Parties hereto.
TERMINATION
29.

ADOC may seek a termination of its obligations under this Amended Agreement

upon a finding that it is in Substantial Compliance with this Amended Agreement and has
maintained Substantial Compliance for at least twelve (12) consecutive months. ADOC may not
obtain a termination of its obligations under this Amended Agreement until five (5) years
following the Final Approval of this Amended Agreement.

30.

If, upon request for termination, the Court concludes that the ADOC is in

Substantial Compliance with all terms and conditions of this Amended Agreement, then the
Court may terminate jurisdiction of the portion or portions of this case subject to this Amended
Agreement.

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31.

The Parties will work in good faith to achieve Substantial Compliance with all

terms and conditions of this Amended Agreement within the time parameters of this Amended
Agreement. If Plaintiffs believe that ADOC is not in or progressing toward Substantial
Compliance with the terms and conditions of this Amended Agreement, Plaintiffs may move for
an order extending jurisdiction over this matter beyond maximum time period contemplated
herein. To extend jurisdiction, Plaintiffs will be required to establish by substantial evidence and
the Court will so find that ADOC is not in Substantial Compliance with this Amended
Agreement or any subsequent Order entered by the Court.
AMENDMENTS
32.

By mutual agreement, the Parties may change terms of this Amended Agreement

(except for the six-year monitoring provision of Section XII.2. below), including but not limited
to the timetables for taking specific actions, provided that such modifications are memorialized
in writing, signed by the Parties or through their counsel, and approved by the Court.

33.

ADOC may not make any substantial changes to any policy, procedure,

regulation, or rule that conflicts with the terms of this Amended Agreement. ADOC will supply
or make available to Plaintiffs’ counsel any policies, procedures, regulations, or rules
implementing the provisions of this Agreement for their review and comment.
34.

The Alabama Prison Transformation Initiative (“APTI”) is expected to be

considered during or before the 2017 Regular Session of the Alabama Legislature. In the event
the Alabama Legislature passes the APTI on or before the conclusion of the 2017 Regular
Session of Alabama Legislature such that it has authorized bonding authority for the construction
of new prison facilities, the parties agree to meet and re-evaluate the deadlines discussed in
Section V.2. “Provisions Regarding Assessment, Self-evaluation and Transition Plan, and
Corrective Actions” and elsewhere in this Amended Agreement. If the Parties cannot agree upon

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amended or supplemental deadlines for these provisions, based on the construction of new
Facilities authorized by the APTI, the Parties will submit those issues to the “Dispute Resolution
Process” discussed in Section VII of this Amended Agreement.

35.

ADOC may not approve any changes in policy, procedure, regulation, or rule by

its Medical and/or Mental Health provider that conflicts with the terms of this Amended
Agreement.

FUNDING

36.

The Parties acknowledge that implementation of the terms of this Amended

Agreement and any plan necessary to effectuate its terms are subject to the availability and
receipt of appropriated funds.

37.

The Parties further acknowledge that the lack of funding does not preclude the

Court from entering an Order to achieve compliance with this Amended Agreement that
comports with the applicable provisions of the Prison Litigation Reform Act, 18 U.S.C. § 3626,
and with other applicable law, provided that ADOC reserves the right to assert that the lack of
funding should be taken into account in any remedial order.

38.

ADOC agrees to make all possible good faith efforts to seek all necessary funding

to implement the terms of this Amended Agreement. In the event that the Parties are unable to
agree as to whether there is sufficient funding to implement this Amended Agreement, the
Parties will meet and confer, and if necessary, consult with the Court. In the event that the
Parties remain unable to agree, either party may seek assistance of the Court.
ATTORNEYS’ FEES AND EXPENSES

39.

ADOC agrees to pay attorneys’ fees and associated costs to counsel for the

Plaintiffs in the total amount of $1,250,000.00. Plaintiffs agree that ADOC may pay this sum in

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installments as follows: a first installment payment of $500,000.00 on or before thirty (30) days
following Final Approval; a second installment payment of $375,000.00 within six (6) months
thereafter; a final installment payment of $375,000.00 within six (6) months following the
second installment payment. Such payments will be remitted to the Southern Poverty Law
Center. Interest on such sums is waived. ADOC acknowledges that counsel for Plaintiffs have
been involved in the prosecution of other claims in this case beyond those resolved by this
Agreement. ADOC acknowledges that payment of the above sum is for work and associated
costs on the claims resolved herein and that Plaintiffs’ counsel reserve the right to seek
additional attorneys’ fees and costs for claims not addressed by this Agreement.

40.

Plaintiffs’ counsel agrees that they will not seek nor petition the Court for an

award of fees and expenses for monitoring services greater than the following amounts. For
purposes of describing the periods hereinafter, the time commences upon execution and final
approval of this settlement by the Court. The fees amounts for monitoring services will be
capped at, and not exceed, a total of the following amounts:
a.

Year One: $70,000.00

Year Two: $60,000.00

Year Three: $50,000.00

Year Four: $40,000.00

Year Five: $60,000.00

Year Six: $50,000.00

The cost associated with Plaintiffs’ counsel’s participating in the facility survey described in
Section V.2. of this Amended Agreement applies toward the total cost of monitoring but will not

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be deducted in whole from year one and can be spread over other year’s assessments if
necessary.
41.

Plaintiffs’ counsel will provide itemized hours expended on a quarterly basis.

ADOC agrees to pay an hourly rate of $195.00 for services rendered in the monitoring
process. The Parties will meet and confer and attempt to agree upon payment for monitoring
services rendered. In the event that the Parties are unable to agree upon the reasonable number
of hours expended, either party may seek assistance of the arbitrator or the Court if the Parties
remain unable to agree.
42.

The annual caps and hourly rates described herein do not apply to: (a) Plaintiffs’

motions to enforce the terms of this Amended Agreement; and (b) Plaintiffs’ opposition to any
motions filed by ADOC arising out of this Amended Agreement. No fees and expenses will be
awarded to Plaintiffs’ counsel for such motions or oppositions unless the Court finds: (a) that the
motion or opposition was necessary to enforce substantial rights under the Acts; and (b) that
Plaintiffs attempted to resolve the matter and or narrow the issues as much as possible by
meeting and conferring with ADOC, taking full opportunity of recourse to the mediation process
before presenting the issues to the Court. Plaintiffs’ counsel agree that they may not seek
attorneys’ fees and costs of more than $200,000 per year on motions to enforce the terms of this
Agreement.
ADDITIONAL PROVISIONS

43.

This Amended Agreement constitutes the entire agreement among the Parties as

to all claims contained herein. This Amended Agreement supersedes all prior agreements,
whether written, oral, or implied. Each party represents that it has full legal authority to enter
into and execute this Agreement.

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44.

This Amended Agreement may not be altered or amended, except in writing

signed by all Parties or their representatives.
45.

This Amended Agreement will be binding on all successors, assigns, employees,

agents, and all other working on behalf of Plaintiffs and ADOC.
46.

This Amended Agreement may be executed in counterparts and such counterparts

will be provided to all Parties immediately upon execution.

***
It is ORDERED that the defendants and their officers, agents, servants, employees,
and attorneys, and any other persons who are in active concert or participation with them,
see Fed. R. Civ. P. 65(d)(2)(B) & (C), are enjoined and restrained from failing to comply
with all of the above provisions.
DONE, this the 9th day of September, 2016.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

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