ADA/DPSC on Deaf Prisoners and Employees

The Louisiana Register includes information on the Americans with Disabilities Act and the Department of Public Safety and Corrections
for offenders in jail and in employment practices. Includes information on people who are deaf and hearing impaired.
(http://www.doa.louisiana.gov/osr/reg/regs2009.htm)

RULE Department of Public Safety and Corrections
Corrections Services
Americans with Disabilities Act

In accordance with the provisions of the Administrative Procedure Act (R.S. 49:950), the Department of Public Safety and Corrections, Corrections Services, has promulgated the contents of Section 308 Americans with Disabilities Act.

Title 22
CORRECTIONS, CRIMINAL JUSTICE AND LAW ENFORCEMENT
Part I. Corrections
Chapter 3. Adult Services
§308. Americans with Disabilities Act
A. Purpose. To establish the secretary's commitment to compliance with the Americans with Disabilities Act and related legislation as it pertains to services for offenders and to establish formal procedures regarding reasonable accommodations for those offenders.

B. Applicability. Deputy Secretary, Undersecretary, Chief of Operations, Assistant Secretary, Regional Wardens, Wardens, Director of Probation and Parole, Director of Prison Enterprises and offenders who have a disability. Each unit head is responsible for ensuring that appropriate unit written policy and procedures are in place to comply with the provisions of this regulation.

C. Policy. It is the secretary's policy to provide offenders with access to housing, programs and services regardless of their disability to the extent possible within the context of the department's fundamental mission to preserve the safety of the public, staff and offenders and consistent with other classification variables that may affect custody, housing and program assignments. Equal access to programs, services and activities will be provided to all offenders based upon their classification.

1. Access to housing, programs and services includes the initiation and provision of reasonable accommodations including, but not limited to facility modifications, assistive equipment and devices and interpreter services. However, such accommodation should not constitute a danger to the offender or others and should not create undue hardship on the department or its employees.

2. Staff who are aware of or have reason to believe that an offender has a disability for which he may need accommodation are required to advise the unit ADA coordinator, who will evaluate the circumstances to determine if auxiliary aids and services and reasonable accommodations are required.

D. Definitions
Americans with Disabilities Act (ADA)—a comprehensive federal law which requires the state to provide equal access for people with disabilities to programs, services and activities of the department.

Auxiliary Aids and Services—external aids used to assist people who are hearing-impaired and may include qualified sign language or oral interpreters, written materials, telephone handset amplifiers, assistive listening devices, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunication devices for deaf persons (TDD/TTY), videotext displays or other effective methods of making aurally delivered materials available to individuals with hearing impairments.

Disability—a physical or mental impairment that substantially limits one or more of the major life activities of an individual, including a record of such impairment or being regarded as having such impairment.

Effective Communication—communication with persons with disabilities that is as effective as communication with others. Effective communication is achieved by furnishing appropriate auxiliary aids and services where necessary to afford qualified individuals with disabilities an equal opportunity to participate in or benefit from the services, programs or activities of the department.

Major Life Activity—walking, seeing, hearing, breathing, caring for one's self, sitting, standing, lifting, learning, thinking, working and reproduction. This list is illustrative only. The impairment to a major live activity must be long term.

Offender—anyone committed to the physical custody of the Department of Public Safety and Corrections or under the supervision of the Division of Probation and Parole.

Qualified Interpreter—an interpreter who is able to interpret effectively, accurately and impartially both receptively and expressively, using any necessary specialized vocabulary.

a. An employee who signs "pretty well" or has only a rudimentary familiarity with sign language or finger spelling is not a qualified sign language interpreter pursuant to this regulation. Likewise, someone who is fluent in sign language but who does not possess the ability to process spoken communication into the proper signs or to observe someone else signing and change their signed or finger spelled communication into spoken words is not a qualified sign language interpreter. A departmental employee should not be allowed to interpret if his presence poses a conflict of interest or raises confidentiality and privacy concerns. On occasion, an offender may possess the skill level necessary to provide interpreting services; however, the impartially concerns remain, and in many, if not most, situations, offender interpreters should not be used due to confidentiality, privacy and security reasons.

Reasonable Accommodation—a modification or adjustment to a job, service, program or activity, etc that enables a qualified individual with a disability to have an equal opportunity for participation.

Requestor—a person who requests an accommodation for a disability.

E. Procedures
1. Initiation of Requests for Accommodation
a. A qualified individual with a known disability of a long term nature should be accommodated where reasonably possible. A request for accommodation may be filed orally or in writing.

b. An offender with a disability may be able to function in the unit without any accommodation other than that which may already have been provided. If not, the offender may request accommodation.

c. The ADA does not require that a request for accommodation be provided in any particular manner; therefore, the department is charged with having knowledge, or deemed with having knowledge, of the request regardless of the form of the request.

d. The department has in place a formal grievance mechanism through which an offender may seek formal review of a complaint relative to any request for reasonable accommodation.

e. An offender may submit a written request for accommodation through the ARP process or staff shall direct or assist the offender to write his request if the request is made verbally.

f. The ADA block on the ARP form shall be checked by the ARP screening officer and directed to the unit ADA coordinator.

2. Accommodation Review Process
a. Upon receipt of a request for accommodation, the unit ADA coordinator shall seek to determine the following:
i. if the medical condition is of a temporary or long-term nature;
ii. if additional medical information is needed. At this point of the process, the unit ADA coordinator may request that the unit medical director determine the following:
(a). what specific symptoms and functional limitations are creating barriers;
(b).if the limitations are predictable, subject to change, stable or progressive;
(c)how the limitations impact the offender's ability to fully participate in the activities and services provided;

iii. whether the condition complained of impairs a major life activity.
b. Once the initial information is gathered, a dialogue between the requestor and the unit ADA coordinator regarding resolution of the problem shall begin.
NOTE: It may take only a change in duty status to resolve the problem.

c. An exception to the need to make an accommodation includes, but is not limited to, the following:
i. not a qualified disability;
ii. threat to one's self or others. Considerations include:
(a). duration of the risk involved;
(b). nature and severity of the potential harm;
(c). likelihood the potential harm will occur;
(d). imminence of the potential harm;
(e). availability of any reasonable accommodation that might reduce or eliminate the risk;
iii. undue hardship. The decision to use this exception can only be made by the headquarters ADA coordinator after consultation with appropriate personnel. A written description of the problem with the requested accommodation and the difficulty anticipated by the unit should be sent to the headquarters ADA coordinator. Considerations include the following:
(a). scope of the accommodation;
(b). cost of the accommodation;
(c). budget of the department;
(d). longevity of the accommodation;
iv. alteration would fundamentally change the nature of the service, program or activity.

3. Decision
a. Consideration should be given on a case-by-case basis.
b. Once the decision to accommodate or not is made, the requestor must be informed in writing of the decision of whether or not an accommodation will be made, the reason for the decision and the accommodation to be made, if applicable, including any specific details concerning the accommodation. This decision shall be conveyed through the ARP First Step Process. The requestor shall also be informed of the right to appeal the decision through the ARP process.
i. For each decision, a copy of the packet of information containing the decision, all information used to reach a decision and all attempts to resolve the request shall be forwarded to the headquarters ADA coordinator. The unit ADA coordinator shall ensure that all requests for accommodation are properly and timely entered into the department's ADA database.

4. Appeal
a. The offender has the right to appeal to the second step in accordance with the ARP process.
b. The ARP response shall be issued in conjunction with the headquarters ADA coordinator and shall contain the relevant issues raised in Subparagraphs E.2.a, b and c.

5. Recordkeeping
a. The Headquarters ADA coordinator shall maintain records of all requests for accommodation made throughout the department.

b. To ensure uniform and consistent compliance with the provisions of this regulation, the headquarters ADA coordinator shall maintain and track statistics concerning all requests for accommodation from offenders and the nature and outcome of the accommodations requested.

c.If a pattern becomes apparent following review of the statistics, the headquarters ADA coordinator shall seek to remedy and/or correct any problems noted and report same to the secretary.

RULE
Department of Public Safety and Corrections
Corrections Services
Effective Communication with the Hearing Impaired

Title 22
CORRECTIONS, CRIMINAL JUSTICE AND LAW ENFORCEMENT
Part I. Corrections
Chapter 3. Adult Services
§312. Effective Communication with the Hearing Impaired
A. Purpose. To establish procedures to provide auxiliary aids and services whenever necessary to ensure effective communication with qualified individuals with disabilities.

B. Applicability. Deputy Secretary, Undersecretary, Chief of Operations, Assistant Secretary, Regional Wardens, Wardens, Director of Probation and Parole, Director of Prison Enterprises, offenders, employees and visitors who are hearing-impaired. Each unit head is responsible for ensuring that appropriate unit written policy and procedures are in place to comply with the provisions of this regulation.

C. Policy. It is the secretary's policy to ensure that communication with offenders, employees and visitors with disabilities is to the same extent as communicating with others. The department shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program or activity conducted by the department where the auxiliary aids or services does not constitute an undue administrative and financial burden or fundamentally alter the service, program, or activity. Any male offender whose hearing cannot be restored to a "within normal limits" medical level with an auxiliary aid will be housed at either the Louisiana State Penitentiary (LSP) or Rayburn Correctional Center (RCC). Any female offender whose hearing cannot be restored to a "within normal limits" medical level with an auxiliary aid will be housed at the Louisiana Correctional Institute for Women (LCIW.)

D. Definitions
Americans with Disabilities Act (ADA)—a comprehensive federal law which requires the state to provide equal access for people with disabilities to services, programs, and activities of the department.
Auxiliary Aids and Services (AAS)—external aids used to assist people who are hearing-impaired and may include qualified sign language or oral interpreters, written materials, telephone handset amplifiers, assistive listening devices, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunication devices for deaf persons (TDD/TTY), videotext displays or other effective methods of making aurally delivered materials available to individuals with hearing impairments.
Departmental Personnel—for the purpose of this regulation, this shall include, but not be limited to, nurses, physicians, social workers, therapists, admitting personnel, security staff, probation and parole officers and any other administrative staff who have or are likely to have direct contact with offenders and/or visitors.
Disability—a physical or mental impairment that substantially limits one or more of the major life activities of an individual, including a record of such impairment or being regarded as having such impairment.

Effective Communication—communication with persons with disabilities that is as effective as communication with others. Effective communication is achieved by furnishing appropriate auxiliary aids and services where necessary to afford qualified individuals with disabilities an equal opportunity to participate in or benefit from the services, programs and activities of the department.
Major Life Activity—walking, seeing, hearing, breathing, caring for one's self, sitting, standing, lifting, learning, thinking, working and reproduction. This list is illustrative only. The impairment to a major life activity must be long term.

Offender—anyone committed to the physical custody of the Department of Public Safety and Corrections or under the supervision of the Division of Probation and Parole.

Qualified Interpreter—an interpreter who is able to interpret effectively, accurately and impartially both receptively and expressively, using any necessary specialized vocabulary.
NOTE: An employee who signs "pretty well" or has only a rudimentary familiarity with sign language or finger spelling is not a qualified sign language interpreter pursuant to this regulation. Likewise, someone who is fluent in sign language but who does not possess the ability to process spoken communication into the proper signs or to observe someone else signing and change their signed or finger spelled communication into spoken words is not a qualified sign language interpreter. A departmental employee should not be allowed to interpret if his presence poses a conflict of interest or raises confidentiality and privacy concerns. On occasion, an offender may possess the skill level necessary to provide interpreting services; however, the impartially concerns remain, and in many-if not most-situations, offender interpreters should not be used due to confidentiality, privacy and security reasons.

Reasonable Accommodation—a modification or adjustment to a job, service, program or activity, etc. that enables a qualified individual with a disability to have an equal opportunity for participation.

Requestor—a person who requests an accommodation for a disability.
TTY/TDD—a device that is used with a telephone or computer that has telephone text capability to communicate (by typing and reading communication) with persons who are deaf or hearing-impaired.
Visitor—for the purpose of this regulation, includes any non-departmental employee who is authorized to be on institutional grounds. i.e., volunteers, contractors, official guests, etc.

E. Procedures
1. Establishment of Auxiliary Aids and Services (AAS) Program. The department shall design and institute a program to provide auxiliary aids and services, schedule, announce and promote all training required, and draft, provide and maintain all reports as required by this regulation.

2. Designation of an official or office responsible for AAS.
a.Each unit ADA coordinator will be responsible for the AAS Program and shall maintain all necessary information about access to and the operation of the program.

b. LSP, RCC and LCIW unit ADA coordinators shall maintain a combination voice, TDD/TTY telephone line or dedicated TDD/TTY telephone line and shall publicize the purpose and telephone number broadly within the unit and to the public.

c. Each unit ADA coordinator shall provide appropriate assistance regarding immediate access to, and proper use of, the appropriate auxiliary aids and services available. It is the responsibility of the unit ADA coordinators to know where the appropriate auxiliary aids are stored, how to obtain services and how to operate them and shall facilitate maintenance, repair, replacement and distribution.

d. Each unit ADA coordinator shall maintain a recording system for inquiries regarding the provision of auxiliary aids and services and the response.

3. Provision of Appropriate Auxiliary Aids and Services
a. The department shall provide to offenders, employees and visitors who are deaf or hearing-impaired an appropriate auxiliary aid or service that may be necessary for effective communication as soon as practicable after determining that the aid or service is necessary.

b. The determination of which appropriate auxiliary aids and services are necessary and the timing, duration and frequency with which they will be provided shall be made by unit personnel, who are otherwise primarily responsible for coordinating and/or providing offender services, in consultation with the person with a disability. When an auxiliary aid or service is required to ensure effective communication, the unit shall provide an opportunity for an individual with a disability to request the auxiliary aid or service of the requestor's choice and shall give consideration to the choice expressed, but shall have the final decision regarding the accommodation to be provided.

c. The initial offender communication assessment shall be made at the time of the intake interview at a reception and diagnostic center or other appropriate classification center within 48 hours of arrival. Properly trained staff shall perform and document a communication assessment to determine the offender's level of effective communication. This assessment shall be conducted by an outside provider or departmental staff, barring any unusual or emergency condition within 10 weeks from the initial assessment. The written assessment shall be made a part of the offender's master prison record.
i. During the initial communication assessment, each offender shall be given a Request for Accommodation Form. This form shall also be made available to the current offender population. Offenders are free to reject or to fail to request auxiliary aids and services, but failure to use the designated form does not relieve the reception center/institution of its duty to assess the offender, nor to inform the offender of the availability of appropriate auxiliary aids and services. Refusal or failure by an offender to complete or return the Request for Accommodation shall not constitute a violation of the ADA or of the Resolution Agreement by the department.
ii. If the initial assessment reveals that an offender's hearing is below normal limits as defined by the Occupational Safety and Health Administration, a male offender shall be transferred to LSP for continuation and completion of the classification process.

d. Each unit shall conduct a minimum of a yearly assessment of each offender with hearing or speech disability regarding the provision of appropriate auxiliary aids and services. If an intervening problem or adjustment is required, the offender shall request a medical call-out. Each unit shall maintain appropriate documentation that reflects the ongoing assessments. The information shall be filed in the offender's medical record.

4. Nothing in this regulation shall require that an electronic device or piece of equipment used as an appropriate auxiliary aid be used when or where its use may be inconsistent with other departmental regulations or unit policies or when use may pose security concerns. (For example, closed-captioned televisions are provided consistently for offenders with hearing disabilities with the same duration and frequency as televisions are provided to the other offenders classified in the same status. No offender will be provided a television if his status would not otherwise permit access.)

5.The department shall maintain an effective complaint resolution mechanism regarding the provision of auxiliary aids and services. Records shall be kept of all complaints filed and actions taken in response. All complaints shall be handled through each unit ADA coordinator and the grievance systems currently in effect. The warden designated to oversee the operation of the ADA Program at each institution or division shall conduct a meaningful review of this regulation on a semi-annual basis.

6. If an offender who is deaf or hearing-impaired does not request appropriate auxiliary aids or services, but departmental and/or unit personnel have reason to believe that the offender would benefit from appropriate auxiliary aids or services, the offender may be asked if the use of auxiliary aids would be beneficial and initiate the testing procedure without violating ADA.

F. Qualified Interpreters
1. The department shall provide qualified sign language or oral interpreters when necessary for effective communication with, or effective participation in, departmental programs and activities by employees, offenders and visitors who are deaf or hearing-impaired. In addition, the department shall offer qualified sign language interpreters to offenders who are deaf or hearing-impaired and whose primary means of communication is sign language and qualified oral interpreters to offenders who rely primarily on lip reading, as necessary, for effective communication.

a. The following are examples of circumstances when it may be necessary to provide interpreters:
i. initial intake and classification processing;
ii. regularly scheduled health care appointments and programs, such as medical, dental, visual, mental health and drug and alcohol recovery services;
iii. emergency health care where having an interpreter would not present an undue burden (e.g., interpreter can arrive at the scene quickly);
iv. treatment and other formal programming;
v. educational classes and activities;
vi. parole board hearings;
vii. disciplinary board hearings;
viii. criminal investigations (to the extent controlled by the department);
ix. classification review interviews;
x. grievance interviews;
xi. religious services; and
xii. formal internal investigations.

2. The department shall establish a contract with individual sign language interpreters or with interpretive agencies for hearing impaired offenders, employees or visitors who require this service, or shall provide other effective means to ensure that qualified interpreters or oral interpreters are provided within three hours of an unscheduled request and timely for scheduled requests. Additionally, as a back-up measure, the headquarters ADA coordinator shall maintain a list of all qualified sign language and oral interpreters (and their contact information) residing or working within a 50-mile radius of any unit housing deaf or hearing-impaired offenders. The headquarters ADA coordinator shall provide this information to the unit ADA coordinators at LSP, RCC and LCIW.

NOTE: The department shall ensure by contract or other arrangements that all services, programs or activities provided or operated by contractors are in compliance with ADA. Contracts with those entities that fail or refuse to comply with ADA shall be subjected to formal termination proceedings.

3. Between the time an interpreter is requested and when an interpreter arrives, unit personnel shall continue to try to communicate with the person who is hearing-impaired to the same extent as they would communicate with a person without a hearing impairment, using all available methods of communication. However, in an emergency, seeking the services of an interpreter shall not mean that medical treatment will be delayed until the interpreter arrives. In addition, upon arrival of the interpreter, unit personnel shall review and confirm with the offender, employee or visitor all information received prior to the interpreter's arrival.

4. Offenders requesting auxiliary aids and/or services, after the initial assessment and which would require a medical evaluation, shall be charged the standard medical co-pay.
EXCEPTION: The offender may be assessed the total costs of replacement of an auxiliary aid if it is determined that replacement is a direct result of the offender's negligence/damage to property.

G. Hearing Aids and Batteries
1. Each unit shall purchase appropriate types of hearing aid batteries and keep them in stock in the medical supply room during the length of time an offender who wears a hearing aid is housed at that unit. Replacement hearing aid batteries shall be provided to offenders who request them on the first business day following receipt of the request. If the request is made on a weekend or holiday or a night after regular business hours, the replacement battery will be provided on the first standard business day following the request.

2. Each unit shall send offender hearing aids to a hearing aid repair company as soon as possible, but no later than 24 hours (excluding weekends and holidays) following a request for repair of the offender's hearing aid. The unit shall inform the offender in writing, as soon as possible, when his hearing aid was sent for repair and when it is expected to be returned by the repair company. The unit shall maintain written documentation of all hearing aid repairs, including detailed information regarding the vendor used, the date of the repair and the specific repairs performed. This information shall be submitted by each unit to the medical department at the Louisiana State Penitentiary quarterly for statistical compilation purposes.

H. Telephones
1. The department shall provide telecommunication devices for the deaf (TDDs/TTYs) for offenders who are deaf or hearing-impaired in a manner that ensures effective access to telephone services. In addition, the following is required so that those offenders who do hear will have access to TDDs/TTYs to communicate with family members or friends who are deaf or hearing-impaired.

a. Each unit shall make at least one TDD/TTY device available in each of the visiting areas where non-contact visits are conducted and the communication exchanged is accomplished over a telephone device. The unit can either permanently install the required TDD/TTY or make available a sufficient number of portable TDDs/TTYs for these visits.

b. Each unit shall provide a TDD/TTY to all deaf or hearing-impaired offenders residing in housing areas to the extent that pay telephones are available to other offenders. In those situations where the unit provides portable TDDs/TTYs, the housing officers shall provide them upon the offender's request, absent emergency circumstances such as lockdown.

c.The department shall take the necessary steps to provide offenders, with toll-free access to "800" numbers for telephone relay services and TDD/TTY operators. These numbers will be posted near all offender telephones, with notice that they are toll-free numbers. The telephone calls to the TDD/TTY operator will be provided free of charge, but any charges incurred to the receiving party will be handled as a standard offender telephone call. Thus, the offender or the receiving party shall be responsible for any long distance charges accrued.

d. Due to the fact that telephone calls placed via a TDD/TTY take longer than telephone calls placed using standard voice telephone equipment, the unit shall allow offenders needing TDD/TTY assistance to have 30 minutes per telephone call, barring any unusual circumstances.

2. Each unit shall ensure that at least one and no less than 25 percent of all offender telephones are equipped with volume control mechanisms and appropriate signs are displayed indicating the phone is volume controlled.

3. Each unit shall ensure that no less than 25 percent of all of its offender telephones are hearing aid compatible in the general population.

4. Each unit shall maintain records of all offenders who have been medically evaluated for any type of hearing impairment, the results of such assessment, date of any reassessment, any transfer or discharge of offenders assessed with a hearing impairment, requests for accommodations including the date requested and the determination and the provision of auxiliary aids or services and the date(s) provided. This information shall be submitted by each unit to the medical department of the Louisiana State Penitentiary quarterly for statistical compilation purposes.
I. Visual and Tactile Alarms
1. Where there are audible emergency alarms in visiting areas, each unit shall add visual alarms when an individual who is deaf or hearing-impaired is anticipated to spend significant periods of time in these areas.

2. Each unit shall place visual emergency alarms in rooms where offenders who are deaf may reside alone or work alone to ensure that they will always be alerted when an emergency alarm is activated. To be effective, such devices must be located and oriented so that they will spread signals and reflections throughout a space or raise the overall light level sharply.

3. Where each unit has audible alarms in housing areas, the unit shall add visual signal devices, when necessary, to alert offenders who are deaf or hearing-impaired to announcements (e.g., roll call.)

J. Televisions
1. Each unit shall provide and maintain closed-captioned television decoders (or built-in decoder televisions) in television rooms to enable offenders who are deaf or hearing-impaired to enjoy the same opportunity for television viewing as that afforded to other offenders.

K. Training
1. Annual training regarding this regulation shall be provided by the department to all employees through the regularly scheduled ADA Training Program.

2. The training program shall be sufficient in duration and content to instruct a reasonable number of personnel in access to the AAS Program, use of the program, and sensitivity to the needs of the deaf and hearing-impaired offender population. Such training shall include:

a.topics relevant to the health care needs of deaf and hearing-impaired offenders, such as the various degrees of hearing impairment;

b. language and cultural diversity in the deaf community;

c. dispelling myths and misconceptions about persons who are deaf or hearing-impaired;

d. identification of communication requirements of persons who are deaf or hearing-impaired;

e. the unique needs and problems encountered by late-deafened individuals;

f. psychological implications of hearing loss and its relationship to interaction with hearing health care professionals;

g. types of auxiliary aids and services as required pursuant to this regulation;

h. the proper use and role of qualified sign language interpreters;

i. procedures and methods for accessing the AAS Program for providing interpreters;

j. making and receiving calls through TDDs/TTYs and the Louisiana Relay or other relay service providers;

k. third party resources which can provide additional information about people who are deaf or hearing-impaired; and

l. the existence of the department's complaint resolution process.

L. Recordkeeping
1. The Headquarters ADA Coordinator shall maintain records of all requests for accommodation made throughout the department.

2. The headquarters ADA coordinator shall maintain and track statistics concerning all requests for accommodation from offenders, employees and visitors and the nature and outcome of the accommodations requested.

3. If a pattern becomes apparent following review of the statistics, the headquarters ADA coordinator shall seek to remedy and/or correct any problems noted and report same to the secretary.

RULE
Department of Public Safety and Corrections
Corrections Services
Equal Employment Opportunity
(Includes Americans with Disabilities Act)(LAC 22:I.201)
In accordance with the provisions of the Administrative Procedure Act (R.S. 49:950), the Department of Public Safety and Corrections, Corrections Services, has amended the contents of Section 201 Equal Employment Opportunity.

Title 22
CORRECTIONS, CRIMINAL JUSTICE AND LAW ENFORCEMENT
Part I. Corrections
Chapter 2. Personnel
§201. Equal Employment Opportunity
(Includes Americans with Disabilities Act)

A. Purpose. To establish the secretary's commitment to equal employment opportunities and to establish formal procedures regarding reasonable accommodation for all employees, applicants, candidates for employment (including qualified ex-offenders) and visitors.

B. Applicability. Deputy Secretary, Undersecretary, Chief of Operations, Assistant Secretary, Regional Wardens, Wardens, Director of Probation and Parole, Director of Prison Enterprises, employees, applicants, candidates for employment (including ex-offenders) and visitors. Each unit head is responsible for ensuring that appropriate unit written policy and procedures are in place to comply with the provisions of this regulation.

C. Policy. It is the secretary's policy to assure equal opportunities to all employees, applicants, candidates for employment (including ex-offenders) and visitors without regard to race, religion, color, national origin, sex, disability or age.
1. Exceptions:
a. where age, sex or physical requirements constitute a bona fide occupational qualification necessary for proper and efficient operations;

b. where the implications of nepotism restrict such employment or employment opportunity; and

c. preferential hiring will be given to persons who actively served in the Iraqi/Afghanistan conflicts in accordance with Civil Service Rules.

2. Equal opportunities will be provided for employees in areas of compensation, benefits, promotion, recruitment, training and all other conditions of employment. Notices of equal employment opportunities will be posted in prominent accessible places at each employment location.

3. Equal access to programs, services and activities will be provided to all visitors. Advance notice of a requested accommodation shall be made during normal business hours to ensure availability at the time of the visit.

4. If any employee is made aware of or has reason to believe that a visitor to the unit is deaf or hard of hearing,
the employee is required to advise the person that appropriate auxiliary aids and services will be provided. The employee should then direct the visitor to the unit ADA Coordinator or designee. Likewise, such information must be forthcoming in response to any request for auxiliary aid or services.

D. Definitions
Age Discrimination in Employment Act (ADEA)—a federal law to protect individuals 40 years of age and over from arbitrary discrimination in employment practices, unless age is a bona fide occupational qualification. The state of Louisiana has passed similar legislation and the term ADEA will refer to both federal and state prohibitions against age discrimination in this regulation.

Americans with Disabilities Act (ADA)—a comprehensive federal law which requires the state to provide equal access for people with disabilities to programs, services and activities of the department, as well as to employment opportunities.

Applicant—a person who has applied for a job and whose qualification for such is unknown.

Auxiliary Aids and Services—external aids used to assist people who are hearing-impaired and may include qualified sign language or oral interpreters, written materials, telephone handset amplifiers, assistive listening devices, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunication devices for deaf persons (TDD/TTY), videotext displays or other effective methods of making aurally delivered materials available to individuals with hearing impairments.

Candidate—a person who has successfully passed the required test and/or meets the Civil Service minimum qualifications for the job sought.

Disability—a physical or mental impairment that substantially limits one or more of the major life activities of an individual, including a record of such impairment or being regarded as having such impairment.

Effective Communication—communication with persons with disabilities that is as effective as communication with others. Effective communication is achieved by furnishing appropriate auxiliary aids and services where necessary to afford qualified individuals with disabilities an equal opportunity to participate in or benefit from the services, programs or activities of the department.

Equal Employment Opportunity (EEO)—the operation of a system of human resources administration which ensures an environment that will provide an equal opportunity for public employment to all segments of society based on individual merit and fitness of applicants without regard to race, color, religion, sex, age, national origin, political affiliation or disability (except where sex, age or physical requirements constitute a bona fide occupational qualification necessary to the proper and efficient operation of the department.)

a. The Equal Employment Opportunity Commission (EEOC) is the federal regulatory body for EEO related complaints and charges.

Essential Functions—basic job duties that an employee/applicant must be able to perform, with or without reasonable accommodation.

Ex-Offender—those offenders who are no longer in the physical custody of the DPS&C or no longer under the supervision of the Division of

Probation and Parole.

Family and Medical Leave—leave for which an employee may be eligible under the provisions of the Family and Medical Leave Act of 1993.

Major Life Activity—walking, seeing, hearing, breathing, caring for one's self, sitting, standing, lifting, learning, thinking, working and reproduction. This list is illustrative only. The impairment to a major life activity must be long term.

Qualified Individual with a Disability—an individual with a disability (as previously defined herein) who can perform the essential functions of the job with or without reasonable accommodation.

Reasonable Accommodation—a modification or adjustment to a job, service, program or activity, etc., that enables a qualified individual with a disability to have an equal opportunity for participation.

Requestor—a person who requests an accommodation for a disability.

Seniority—a calculation of the number of years of service to the department and used in comparison to another employee's or applicant's number of years of service to the department. Seniority may be used as a factor in employment decisions but may never be used as a substitute for age discrimination.

Visitor—for the purpose of this regulation, includes any non-departmental employee who is authorized to be on institutional grounds. i.e., volunteers, contractors, official guests, etc.

E. Procedures
1. Coordination of ADA Matters
a. The secretary will establish and designate a Headquarters ADA Coordinator. This employee is charged with reviewing, recording and monitoring ADA matters for the department and will also advise and make recommendations to the secretary or designee regarding such matters as appropriate.

b. Each unit head will designate a primary unit ADA Coordinator to coordinate unit ADA matters. All units will prominently post the name and telephone number of the unit ADA Coordinator.

2. Initiation of Requests for Accommodation
a. A qualified requestor with a known disability of a long term nature should be accommodated where reasonably possible, providing the accommodation does not constitute a danger to the requestor or others and does not create undue hardship on the department or its employees.

NOTE: If a requestor is an employee, applicant or a candidate for employment, the requestor must be able to perform the essential functions of the job with the accommodation.

b. The ADA does not require that a request for accommodation be provided in any particular manner; therefore, the department is charged with having knowledge, or deemed with having knowledge, of the request regardless of the form of the request.

c. If an employee, applicant or candidate for employment informs anyone in his chain of command, Human Resources personnel or the unit ADA Coordinator that he has difficulty performing his job duties or participating in a program or service due to a medical condition, the employee, applicant or candidate for employment is deemed to have made a request for accommodation.

d. If a visitor informs an employee that he cannot participate in the visiting process or any other program or service that the visitor is entitled to participate in, the visitor is deemed to have made a request for accommodation.

e. Once any request for accommodation has been received, either verbally or in writing, the person receiving the request should immediately relay the request to the unit ADA Coordinator or designee.

f. An employee, applicant, candidate for employment (including ex-offenders) or visitor may complete a Request for Accommodation Form. The requestor completing the form must forward it to the unit ADA Coordinator for processing.

3. Accommodation Review Process
a. Upon receipt of the completed Request for Accommodation Form, the unit ADA Coordinator shall seek to determine the following:

i. if the medical condition is of a temporary or long-term nature;
ii. if additional medical information is needed from the requestor's physician or through a second opinion. At this point of the process, the unit ADA Coordinator may inform the requestor that his doctor must complete an Essential Function Form to determine the following:

NOTE: The Index of Essential Job Functions contains the Essential Functions Form for each job category used by the Department. The Index is maintained in each unit Human Resources Office)

(a). what specific symptoms and functional limitations are creating barriers;

(b). if the limitations are predictable, subject to change, stable or progressive;

(c). how the limitations impact the requestor's ability to perform the job, and for visitors, how the limitations impact the requestor's ability to fully participate in the activities and services to which the requestor is entitled;
iii. the condition impairs a major life activity.
b. If questions remain, staff may contact the requestor's treating physician directly.

c. The unit ADA Coordinator shall ensure that a formal request is submitted on a Request for Accommodation Form and provide assistance as needed.

d. Once the initial information is gathered, a dialogue between the requestor and unit ADA Coordinator regarding resolution of the problem shall begin.

e. The discussion may include the following matters:
i. if the problem is of a temporary nature, use of FMLA or sick leave, Workman's Compensation or a temporary halt of some job duties may resolve the problem;
ii. if a second medical opinion is needed, this is to be performed at the department's cost with a physician of the department's choosing;
iii. if the medical condition is deemed to be a qualified disability, this decision shall be documented;
NOTE: Due to the nature of a disability, the disability may progress and require additional modifications at a later date)
iv. the goal is to reach a mutually acceptable accommodation, if possible. The secretary or designee shall make the final decision on what the actual accommodation will be.
f. An exception to the need to make an accommodation includes, but is not limited to the following:
i. not a qualified disability;
ii. threat to one's self or others. Considerations are as follows:
(a). duration of the risk involved;
(b). nature and severity of the potential harm;
(c). likelihood that potential harm will occur;
(d). imminence of the potential harm;
(e). availability of any reasonable accommodation that might reduce or eliminate the risk;
iii. undue hardship. The decision to use this exception may be made by the Headquarters ADA Coordinator only after consultation with the undersecretary. A written description of the problem with the requested accommodation and the difficulty anticipated by the unit should be sent to the Headquarters ADA Coordinator. Considerations are as follows:
(a). scope of the accommodation;
(b). cost of the accommodation;
(c). budget of the department;
(d). longevity of the accommodation.
iv. alteration would fundamentally change the nature of the program, service or activity.

4. Decision
a. Consideration should be given on a case-by-case basis.
b. The granting of leave can be an accommodation.
c. Once the decision to accommodate or not is made, the requestor shall be informed in writing of the decision of whether or not an accommodation will be made, the reason for the decision and the accommodation to be made, if applicable, including any specific details concerning the accommodation. The requestor must also be informed of the right to appeal the decision to the Headquarters ADA Coordinator.
i. For each decision, a copy of the packet of information containing the decision, all information used to reach the decision and all attempts to resolve the request shall be forwarded to the Headquarters ADA Coordinator. The unit ADA Coordinator shall ensure that all requests for accommodation are properly and timely entered into the department's ADA database.
d. The original of the packet of information concerning the request with the decision shall be maintained in a confidential file for three years after the requestor has left the department's employ or notification has been received that a requestor no longer wishes to be afforded visitor status.

5. Appeal
a. The requestor has the right to appeal the unit's decision for the following reasons only:
i. the finding that the medical condition is not a qualifying disability;
ii. the denial of an accommodation; or
iii. the nature of the accommodation.
b. The requestor shall forward the appeal of the unit's decision to the Headquarters ADA Coordinator.
c. At the discretion of the Headquarters ADA Coordinator, additional information or medical documentation may be requested.
d. After consultation with the Undersecretary, the Headquarters ADA Coordinator shall issue a written appeal decision to the requestor, a copy of which shall also be sent to the appropriate Unit Head and unit ADA Coordinator.
e. No additional appeal will be accepted as the Headquarters ADA Coordinator's decision shall be final.

6. Recordkeeping
a. The Headquarters ADA Coordinator shall maintain records of all requests for accommodation made throughout the department.
b. To ensure uniform and consistent compliance with the provisions of this regulation, the Headquarters ADA Coordinator shall maintain and track statistics concerning all requests for accommodation from employees, applicants, candidates for employment and visitors and the nature and outcome of the accommodations requested.
c. If a pattern becomes apparent following review of the statistics, the Headquarters ADA Coordinator will seek to remedy and/or correct any problems noted and report same to the secretary.

7. Essential Job Functions
a. General Requirements
i. Employment candidates must complete an Essential Functions Form at the time of interview for employment and/or return to employment. Employees may be required to complete an up-to-date Essential Functions Form as appropriate and when deemed necessary by the unit head in order to ensure that the fundamental mission of the department is sustained.
ii. The Index of Essential Job Functions contains the Essential Functions Form for each job category used by the department. The Index is maintained in each unit Human Resources Office.

b. Employee and Unit Specific Requirements. Employees may be required to complete an up-to-date Essential Functions Form under the following conditions (not necessarily all inclusive):
i. exhaustion of sick leave and if applicable, exhaustion of FMLA entitlement;
ii. expressed inability to participate in a mandatory work-related activity (i.e., training) and/or to perform essential job functions; and/or

iii. appearance of the inability to perform essential job functions. When any of the described conditions exist, the unit head will require the employee to provide a new Essential Functions Form and "Medical Certification" from the employee's health care provider so the employee's status under the ADA can be assessed. The Medical Certification Form must include a prognosis, whether the condition is temporary or permanent, when the condition began, the expected date of return to duty, whether the employee is able to perform the essential functions of the job with or without accommodation and a description of the accommodation needed.
NOTE: In certain situations, a second opinion by an independent third party may be appropriate. This opinion will be at the unit's expense.

8. Conciliation Options for EEO and ADA Concerns
a. Should a requestor feel that he has experienced discrimination in any manner or not be satisfied with the results of the request for accommodation, he may seek conciliation through Corrections Services' grievance process, through the EEOC for employment related complaints and/or the U.S. Department of Justice (USDOJ) for issues not related to employment.

b. Requestors are encouraged to use the internal procedures to address and resolve complaints to the extent possible. Use of these internal procedures does not restrict a requestor from filing with the appropriate federal agency prior to exhaustion of the department's internal process(es).

9. Departmental Conciliation of EEO and ADA Matters
a. The Headquarters Human Resources Section shall coordinate the Department's response(s) to complaints and charges of discrimination regarding equal employment opportunity matters. Complaints/charges may be addressed through the internal grievance procedure when such a grievance has been filed and heard at the appropriate unit levels.

b. For formal charges generated by the EEOC or the USDOJ, the unit head and the applicable unit's attorney will develop the department's response and conciliation opinion (if applicable.) Any unit receiving a "Notice of Charge of Discrimination" document from the EEOC or similar notice from the USDOJ shall forward the notice to the Headquarters Legal Services upon receipt.

10. Employment Applications of Ex-Offenders
a. All applications for employment received from persons who are ex-offenders will be reviewed by a committee appointed by the secretary. The committee shall be composed of the chief of operations or designee, assistant secretary or designee and the headquarters human resources director or designee. Consideration will be given to the unit head's recommendation, the ex-offender's crime, sentence, institutional record and length of time free from other convictions. The committee's recommendations will then be submitted to the secretary or designee for review with the Unit Head.

b. Ex-offenders will not be eligible for employment in positions which require an employee to carry a firearm in the performance of duty. This restriction is based on applicable Civil Service job qualifications and state and federal law.

11. Training
a. The department shall provide comprehensive annual training for all departmental personnel regarding this regulation.
b. Additional information pertaining to EEO, ADA and ADEA is available in any human resources office.
AUTHORITY NOTE: Promulgated in accordance with R.S. 49:950.
HISTORICAL NOTE: Promulgated by the Department of Public Safety and Corrections, Corrections Services, LR 26:1308 (June 2000), amended LR 35:2194 (October 2009).

James M. Le Blanc
Secretary