Prison Phone Justice

SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND
VERMONT DEPARTMENT OF CORRECTIONS UNDER THE AMERICANS WITH
DISABILITIES ACT, DJ # 204-78-44
I.

BACKGROUND & JURISDICTION

1.

The parties (“Parties”) to this Settlement Agreement (“Agreement”) are the United States of
America (“United States”) and the Vermont Department of Corrections (“VDOC”).

2.

This Agreement resolves the United States’ investigation of VDOC for alleged discrimination
against individuals with disabilities in violation of Title II of the Americans with Disabilities Act
of 1990 (“ADA”), 42 U.S.C. §§ 12131-12134 (“Title II”), and its implementing regulation, 28
C.F.R. Part 35.

3.

The United States initiated its investigation after receiving complaints from inmates at the
Southern State Correctional Facility (“SSCF”), alleging that VDOC fails to provide facilities that
are accessible to inmates with mobility disabilities. The United States also received complaints
from inmates at Chittenden Regional Correctional Facility (“CRCF”) that VDOC fails to provide
effective communication for inmates with hearing disabilities and thereby denies them
participation in educational, vocational, religious, and other programs on the basis of their
disabilities. They further allege that VDOC has a policy that provides inmates with only one
hearing aid, when two are prescribed, and fails to timely repair and return hearing aids to inmates,
thereby preventing them from participating fully in counseling, educational, recreational,
religious, and social programs. Inmates with mobility disabilities allege that SSCF and CRCF
facilities are inaccessible, and that they are unable to fully participate in activities of daily living,
educational programs, and access to church services because of architectural barriers in
correctional facilities. Inmates with mobility disabilities also allege that VDOC fails to make
reasonable modifications to its policies, practices, and procedures to assign them to a lower bunk
where necessary to provide access. The United States’ investigation included document review
and interviews with VDOC inmates, personnel, and administrators at SSCF, CRCF, Marble
Valley Correctional Facility (“MVCF”) and the Northern State Correctional Facility (“NSCF”).
The United States also conducted architectural surveys of SSCF, CRCF, and MVCF.

4.

The United States investigated the programs, services, activities, and facilities of VDOC and
concluded that the SSCF, CRCF, and NSCF fail to provide architectural, communication, and
program access to persons with disabilities and that qualified individuals with disabilities are, by
reason of such disabilities, excluded from participation in or denied the benefits of VDOC’s
programs, services, or activities or are subject to discrimination in violation of Title II of the
ADA. 42 U.S.C. § 12132; 28 C.F.R. §§ 35.149-35.152, 35.160.

5.

The ADA applies to VDOC because it is a “public entity” as defined by Title II of the ADA. 42
U.S.C. § 12131(1). Title II prohibits discrimination against qualified individuals with disabilities
on the basis of disability in the “services, programs, or activities of a public entity.” 42 U.S.C. §
12132.

6.

The United States is authorized under the Department of Justice’s Title II implementing
regulation, 28 C.F.R. Part 35, Subpart F, to determine VDOC’s compliance with Title II of the
ADA, to issue findings, and, where appropriate, to negotiate and secure voluntary compliance
agreements. 28 C.F.R. §§ 35.171-172.

7.

The parties agree that it is in their best interests, and the United States believes that it is in the
public interest, to resolve this matter without engaging in protracted litigation. The parties have
therefore voluntarily entered into this Agreement. This Agreement should not be construed as an
admission of liability by VDOC.

8.

In consideration of, and consistent with, the terms of this Agreement, the Attorney General agrees
to refrain from filing a civil suit in this matter, except as provided in the section entitled
“Implementation and Enforcement.”
II.

DEFINITIONS

9.

“ADA Compliance Director” means an employee of VDOC who has responsibility and authority
to ensure that: VDOC facilities are readily accessible to and usable by inmates with disabilities;
VDOC provides inmates with disabilities equal opportunity to participate in and benefit from its
services, programs, and activities, to include the provision of appropriate auxiliary aids and
services to ensure effective communication; and that inmates’ requests for accommodations,
complaints, and grievances are addressed and resolved as set forth in this Agreement.

10.

“Alteration” means a change to a VDOC facility or part of a facility that affects or could affect
the usability of the facility. 28 C.F.R. § 35.151(b).

11.

“Auxiliary aids and services” means those aids and services as set forth in 28 C.F.R. § 35.104,
and accordingly, include qualified interpreters on-site or through video remote interpreting (VRI)
services; note takers; computer-aided real-time transcription services (CART); written materials;
exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive
listening systems; telephones compatible with hearing aids; closed caption decoders; open and
closed captioning, including real-time captioning; voice, text, and video-based
telecommunications products and systems, including text telephones (TTYs), videophones, and
captioned telephones, or equally effective telecommunications devices; videotext displays;
accessible electronic and information technology; or other effective methods of making aurally
delivered information available to individuals who are deaf, hard of hearing, or who have a
speech disability.

12.

“Communication Plan” means the individualized list of accommodations, including appropriate
auxiliary aids and services that will be provided to each inmate with hearing disabilities to ensure
effective communication and access to programs, services, facilities, and activities. The
Communication Plan is based on information collected at Intake, and/or from the Secondary
Hearing Assessment. It is developed in coordination with the ADA Compliance Director and the
Facility ADA Coordinator.

13.

“Correctional Facility” means any regional office, institution, correctional treatment facility,
detention facility, transitional facility, secure program facility, correctional center, community
2

corrections location, or resource center where VDOC operates, supervises, controls, manages, or
contracts to receive services for inmates who are under VDOC’s supervision.
14.

“Critical Interactions” means those interactions in which the risk of miscommunication or
misunderstanding are high and the consequences of miscommunications or misunderstandings
may have serious repercussions for inmates with hearing disabilities. Examples of Critical
Interactions include, but are not limited to: medical care treatment and appointments, including
dental, vision, audiological, mental health care and referral appointments; individual therapy and
group counseling sessions; disciplinary investigations and disciplinary hearings; educational
programs, specific training sessions and general educational opportunities that include a verbal or
aural component; vocational programs that include a verbal or aural component; transfer and
classification meetings; and meetings with the ADA Compliance Director or the Facility ADA
Coordinator to discuss what auxiliary aids and services to include in the inmate’s Communication
Plan.

15.

“Effective communication” means communication with individuals who have hearing 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 a public entity.

16.

“Facility ADA Coordinator” means the designated person at each VDOC Correctional Facility
with the responsibility and authority to develop an inmate’s Communication Plan to provide
inmates with disabilities the auxiliary aids and services necessary to ensure effective
communication and access to programs, services, facilities, and activities.

17.

“Intake Hearing Screening” means the initial inquiry, conducted when an inmate first enters a
Facility, regarding whether an inmate may have a hearing disability. The Intake Screening forms
the basis for follow up by VDOC if a hearing disability is identified, and, where a hearing
disability is identified, triggers the development of an inmate’s Communication Plan. If a hearing
disability is suspected, but not identified, during the Intake Hearing Screening, a Secondary
Hearing Assessment may be ordered to confirm or rule out a hearing disability.

18.

“Intake” means the process from the point in time at which an inmate is taken into the custody of
VDOC at a VDOC Correctional Facility, through the point in time the inmate is received at, and
assigned to, a unit within a maintaining VDOC Correctional Facility. Intake includes orientation,
medical and psychological assessment, educational testing and evaluation, and classification and
housing assignment. This term also applies to any similar process for short-term detainees.

19.

“Inmate with Hearing Disabilities” means an inmate who, if unaided by hearing aids or any
medical device, is unable to hear in either one or both ears to a sufficient degree to be able to
understand the spoken word. Throughout this document, the term “inmates with hearing
disabilities” is used to refer to individuals who are deaf or hard of hearing.

20.

“Inmate with Mobility Disabilities” means an inmate with physical disabilities that substantially
limit one or more major life activities, including walking and standing. 42 U.S.C. § 12102(1)(A)(2)(A).

21.

“New Construction” means each facility or part of a facility constructed by, on behalf of, or for
3

the use of, VDOC where construction commenced after January 26, 1992. 28 C.F.R. § 35.151(a).
22.

“Personnel” means all VDOC employees, agents, contractors, and volunteers who are responsible
for the custody, oversight, and care of inmates in VDOC facilities.

23.

“Qualified Individual with a Disability” means “an individual with a disability who with or
without reasonable modifications to policies, practices, or procedures, the removal of
architectural, communication, or transportation barriers, or the provision of auxiliary aids and
services meets the essential eligibility requirements for the receipt of services or the participation
in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2). See also 28 C.F.R.
§ 35.108.

24.

“Qualified Interpreter” means an interpreter who, via a video remote interpreting (VRI) service or
an on-site appearance, is able to interpret effectively, accurately, and impartially, both receptively
and expressively, using any necessary specialized vocabulary, given the individual with hearing
disabilities’ language, skills and education. Qualified interpreters include, for example, sign
language interpreters, oral transliterators, and cued-language transliterators. See 28 C.F.R. §
35.104, Pt. 35, App. A. “Qualified Interpreter.” For the purposed of this Agreement, a Certified
Deaf Interpreter is also considered a qualified interpreter.

25.

“Secondary Hearing Assessment” means a hearing assessment to (1) determine whether an inmate
has a hearing disability, (2) obtain additional information on the extent of an inmate’s hearing
disability, and/or (3) help determine what auxiliary aids and services are required to ensure
effective communication. It may be ordered either after the initial Intake Hearing Screening, or
when an inmate who has been incarcerated presents with a suspected hearing disability during
incarceration. A Secondary Hearing Screening can be ordered at any time during an inmate’s
incarceration.

26.

“Text Telephone/Teletype Terminal/Teletypewriter” (TTY) means a device that allows
individuals with hearing disabilities to use a telephone to type and send text messages.

27.

“Telecommunications Relay Service” (TRS) means an operator service that allows people with
hearing disabilities to place calls to standard telephone users via keyboard or assistive device.

28.

“Videophone” means a telephone with a camera and screen for visual, real-time communication.

29.

“Video Relay Service” (VRS) means a telephone service using interpreters connected to callers
by video hook-up that is designed to provide persons with hearing disabilities who use American
Sign Language with telephone services that are functionally equivalent to those provided to users
who are hearing.

30.

“Video Remote Interpreting” (VRI) means an interpreting service that uses video conference
technology over dedicated lines or wireless technology offering a high-speed, wide-bandwidth
video connection that delivers high-quality video images as provided in 28 C.F.R. § 35.160(d).

4

III.
31.

REMEDIAL RELIEF – GENERAL

Nondiscrimination Based on Disability. VDOC and its officers, employees, agents, successors,
and assigns, will ensure that individuals with hearing or mobility disabilities are not discriminated
against on the basis of disability in VDOC’s services, programs, and activities, and will comply
with all requirements of Title II of the ADA, 42 U.S.C. §§ 12131–12134, and its implementing
regulation, 28 C.F.R. Part 35. VDOC’s obligations under the ADA include, but are not limited to,
the following:
a.

VDOC will not discriminate against or exclude qualified inmates with disabilities from
participation in, or deny such inmates the benefits of, VDOC’s services, programs, or
activities, including, but not limited to, housing, recreation, commissary, dayrooms,
telephones, regular meals, education, postsecondary education, and work and study release,
on the basis of an inmate’s disability, 42 U.S.C. § 12132; 28 C.F.R. § 35.130(a), (b)(1)(i);

b.

VDOC will not, on the basis of disability, deny qualified inmates with hearing or mobility
disabilities the opportunity to participate in or benefit from VDOC’s aids, benefits, or
services, 42 U.S.C. § 12132; 28 C.F.R. § 35.130(b)(1)(i);

c.

VDOC will not, on the basis of disability, provide aids, benefits, or services to qualified
inmates with hearing or mobility disabilities that are unequal to, or different or separate
from, those afforded to inmates who do not have disabilities, unless different or separate
services are necessary to provide such inmates with disabilities benefits, aids, or services
that are as effective as those provided to others, 42 U.S.C. § 12132; 28 C.F.R. §
35.130(b)(1)(ii), (iv);

d.

VDOC will reasonably modify its policies, practices, and procedures where necessary to
avoid discrimination on the basis of disability unless VDOC demonstrates that such
modifications would fundamentally alter the nature of its services, programs, or activities,
42 U.S.C. § 12132; 28 C.F.R. § 35.130(b)(7);

e.

VDOC will not impose or apply eligibility criteria that screen out or tend to screen out
inmates with disabilities from fully and equally enjoying VDOC’s services, programs, or
activities, unless VDOC demonstrates that such criteria are necessary for its provision of
those services, programs, or activities, 42 U.S.C. § 12132; 28 C.F.R. § 35.130(b)(8); and

f.

VDOC will ensure that its facilities are accessible to and usable by inmates with disabilities
and will not exclude such inmates from participation in, or deny them the benefits of, its
services, programs, or activities because its facilities are inaccessible or unusable by inmates
with disabilities, 42 U.S.C. § 12132; 28 C.F.R. §§ 35.149, 35.150, 35.152(b)(1). VDOC
will ensure that its facilities and portions of its facilities constructed or altered after January
26, 1992 comply with ADA design standards. 28 C.F.R. §§ 35.151, 35.104.

5

IV.

REMEDIAL RELIEF – EFFECTIVE COMMUNICATION AND AUXILIARY AIDS
AND SERVICES

32.

VDOC will provide appropriate auxiliary aids and services to ensure effective communication
and the equal opportunity to participate in and enjoy the benefits of VDOC’s services, programs,
and activities. This includes all programs, services, and activities provided by entities under
contract with VDOC, such as third-party vendors, contractors, or state funded entities such as
community colleges.

33.

Examples of Interactions that Require Auxiliary Aids and Services. The following nonexhaustive list provides examples of activities, services, programs, or circumstances where
VDOC will provide appropriate auxiliary aids and services, including qualified interpreters, to
ensure effective communication with VDOC inmates who have hearing disabilities:
a.

Critical Interactions, complex information, lengthy exchanges, or communications involving
legal matters or issues;

b.

Intake, including transfers between facilities;

c.

Orientation;

d.

Classification;

e.

Medical care and health programs and services, including physicals, medical screenings and
treatment, dental, visual, and/or mental health examinations or treatment, and drug and
alcohol recovery services, including telemedicine;

f.

Counseling or psychological services;

g.

Educational and vocational programming, including any programming required for parole or
early-release;

h.

Due process hearings, including disciplinary hearings, and hearings in which the inmate is a
witness;

i.

Classification review interviews;

j.

Grievance interviews or processes;

k.

Religious services;

l.

Investigations conducted by VDOC; and

m. Pre-release instructions.
34.

All auxiliary aids and services required by this Agreement will be provided promptly and free of
charge to inmates with hearing disabilities. In determining what types of auxiliary aids and
services are necessary, VDOC will give primary consideration to an inmate’s request for a
particular auxiliary aid or service and will honor that request unless VDOC can demonstrate that
another equally effective means of communication exists or unless providing the requested
auxiliary aid or service would fundamentally alter the nature of the program, service, or activity,
or result in an undue financial or administrative burden. 28 C.F.R. §§ 35.160, 35.164.

6

35.

VDOC will provide and maintain written instructions for inmates and VDOC personnel that
describe the proper procedures for when and how to request auxiliary aids and services and the
proper operation for each type of auxiliary aid or service.
Hearing Aids, Cochlear Processer Devices, and Batteries

36.

Consistent with its custodial role, VDOC will provide the appropriate type and number of hearing
aids and cochlear processor devices, free of charge, to inmates who have been prescribed hearing
aid(s) or who have cochlear implants. Standard hearing aids and cochlear processor devices will
be provided to inmates requesting them as soon as reasonably possible, but not later than 30 days
after an inmate’s request is submitted by the inmate or the inmate’s treating health care provider.
In the event there is a disagreement about the type and number of hearing aids an inmate requires,
VDOC will seek a Secondary Hearing Assessment, and will consider the results of such
assessment in its determination about the number and type of hearing aids and cochlear processor
devices an inmate receives.

37.

VDOC will provide the appropriate type and number of hearing aid and cochlear processor
replacement batteries, free of charge, to inmates who have been prescribed hearing aid(s) or who
have cochlear implants. Standard replacement batteries will be provided to inmates requesting
them as soon as reasonably possible, but not later than 24 hours after a request is submitted by the
inmate, and no later than 48 hours on weekends and holidays. Nonstandard replacement batteries
will be ordered as soon as reasonably possible, but not later than 24 hours after a request is
submitted by the inmate, and no later than 48 hours on weekends and holidays.

38.

When an inmate’s hearing aid, cochlear processor, or other such device is inoperable or
malfunctioning, VDOC will send the device to an appropriate repair company as soon as possible,
but not later than 24 hours (or up to 48 hours on weekends and holidays) after an inmate health
care request is submitted by the inmate. A temporary hearing aid will be provided to the inmate
for use during the time that the original hearing aid is out for repairs. Upon the inmate’s request,
VDOC will inform the inmate when the device was sent for repair and when it is expected to be
returned by the repair company. Upon the inmate’s request, VDOC will provide the inmate with
any written documentation provided to VDOC by the repair company regarding the vendor used,
the date of the repair, and the specific repairs performed.

39.

If the inmate’s hearing loss warrants clinical reassessment to determine if the prescription for the
hearing aid or other device needs to be adjusted before any repair or replacement is ordered,
VDOC will ensure the inmate retains the original device (if functional), and VDOC will schedule
a medical appointment as soon as reasonably possible. VDOC will take additional appropriate
steps to ensure effective communication with the inmate during any period in which the inmate is
without their hearing aid, cochlear processor, or other such device.
Interpreting Service Agencies

40.

Within 30 days of the effective date of this Agreement, VDOC will provide or contract with one
or more interpreter service agencies to ensure that qualified interpreting services, including VRI,
are available, 24 hours per day and 7 days a week. Following the United States’ investigation,
VDOC represents that it provides VRI services 24 hours a day/7 days a week. Alternatively,
VDOC may make other appropriate arrangements such as contracting directly with, or hiring,
qualified interpreters on a fee for service basis as necessary. Documentation of interpreter
7

services will be provided in the compliance reports required in “Monitoring and Reporting
Requirements” in this Agreement.
Use of Others to Facilitate Communication
41.

VDOC will not use another inmate to interpret for an individual who has a hearing disability
unless (1) the individual with a disability specifically requests such assistance from another
inmate, the inmate agrees, and reliance on that inmate is appropriate under the circumstances; or
(2) in an emergency involving an imminent threat to the safety or welfare of the individual or the
public where there is no interpreter available. 28 C.F.R. § 35.160(c).

42.

Except for VDOC personnel hired specifically to serve as qualified sign language interpreters,
VDOC will not use its personnel to serve as sign language interpreters except in appropriate
circumstances, such as: informal communications, providing basic information to an inmate with
a hearing disability while waiting for a qualified interpreter to arrive, or in an emergency
involving an imminent threat to the safety or welfare of the individual or the public where there is
no qualified interpreter available. 28 C.F.R. § 35.160(c).
Video Remote Interpreting (VRI)

43.

To the extent VDOC utilizes VRI to provide effective communication, within 30 days of the
effective date of this Agreement, VDOC will provide access to, and have available for, in
emergency situations and otherwise as deemed necessary by VDOC, on-demand video remote
interpreting that comports with the following standards at all VDOC Correctional Facilities at
which inmates with hearing disabilities are incarcerated:
a.

High quality, clear, delay-free full-motion video and audio over a high-speed Internet
connection;

b.

Clear, sufficiently large, and sharply delineated picture of the interpreter’s and the deaf or
hard of hearing individual’s heads, arms, hands, and fingers, regardless of the body position
of the deaf or hard of hearing inmate, unless rendered impracticable by an emergency
situation;

c.

Voices being transmitted are clear and easily understood; and

d.

Operation is uncomplicated and easily accomplished by non-technicians.

44.

VDOC will implement VRI no later than 30 days of the Effective Date of this Agreement.
VDOC will require that the VRI provider(s) use only Qualified Interpreters. VDOC will ensure
that at least one of the VRI systems is housed in the medical unit of VDOC Correctional Facilities
at which inmates with hearing disabilities are incarcerated. Following the United States’
investigation, VDOC represents that it has implemented VRI with Qualified Interpreters and that
VRI is also available in medical units at which inmates with hearing disabilities are incarcerated.

45.

When use of a qualified interpreter is necessary to provide effective communication, on-site
interpreter services are required when VRI is not available or the use of VRI is not feasible or
does not result in effective communication, such as where the inmate is unable to see clearly the
video monitor (for example, due to vision difficulties or because the video monitor is out of the
inmate's sightline), where the signal is interrupted causing unnatural pauses in communication, or
where the image is grainy or otherwise unclear. 28 C.F.R. § 35.160(d).
8

Telecommunication and Audio Devices
46.

Within 30 days of the effective date of this Agreement, VDOC will make the following
communication technologies available at all of its VDOC Correctional Facilities where inmates
with hearing disabilities are incarcerated to facilitate communication between inmates with
hearing disabilities and people outside of VDOC Correctional Facilities. This list of equipment is
not exhaustive.
a.

TTY (teletypewriter) and Telephone. Every VDOC Correctional Facility will provide a
functional TTY and a telephone that is compatible with hearing aids, and, where necessary,
modified to enable volume control, in each unit housing inmates with hearing disabilities.
VDOC will ensure that at least one TTY will be available and readily accessible during the
same hours as the standard telephone is available for inmates who do not have hearing
disabilities. VDOC will keep an additional portable TTY unit for use when the regular TTY
is broken or otherwise unavailable.

b.

Relay Services. VDOC will enable all TTYs to access publicly available relay service
phone numbers and local 1-800 numbers. Inmates with hearing disabilities at VDOC
Correctional Facilities using relay services may not be charged any more than inmates not
using relay services and will be charged the per minute rate established by VDOC’s contract
with its inmate telephone service provider, consistent with applicable law.

c.

Videophones. VDOC will make videophones, either portable or non-portable, available at
every VDOC facility where inmates with hearing disabilities are incarcerated. VDOC will
provide a videophone at a location easily accessible to inmates with hearing disabilities.
Inmates with hearing disabilities will be provided access to these devices in a manner
equivalent to the access afforded to inmates who use a standard telephone.

d.

Over-the-Ear Headphones. VDOC will make over-the-ear headphones available to
inmates with hearing disabilities who wear hearing aids to the same extent that inmates
without hearing disabilities are provided earbuds or on-the-ear headphones for television
and radio. Over-the-ear headphones enable the inmate who wears hearing aids to listen to
television and radio without removing their hearing aids.

47.

VDOC agrees to keep abreast of evolving technology and to consider adding new equipment and
technologies to reflect technological advances.

48.

VDOC Correctional Facilities housing inmates with hearing disabilities will provide a list of
communications equipment available to inmates with hearing disabilities upon their arrival at a
VDOC Correctional Facility.

49.

VDOC will maintain all auxiliary aids and services for inmates with hearing disabilities at VDOC
Correctional Facilities in working condition at all times, or promptly repair them.

50.

VDOC staff will attempt to resolve complaints about any malfunctioning equipment (e.g., TTY
or videophone) within one week of receiving that complaint and no later than one month after
receiving the complaint. VDOC will initiate a work order or other applicable mechanism for
resolving the issue within 24 hours of the complaint. VDOC will not be considered in breach of
9

this provision if the delay is caused by third party vendors, delivery errors, or any other issue
caused by third parties or circumstances outside of VDOC control. However, any delay beyond
one week requires VDOC to identify and implement an interim solution to ensure effective
communication until the device is repaired and returned to the inmate with hearing disabilities.
51.

Telecommunication Services. VDOC will provide inmates with hearing disabilities at VDOC
Correctional Facilities with a range of telecommunication devices to ensure communication with
people outside of VDOC that is substantially similar to the access to telecommunication services
VDOC provides to inmates who do not have hearing disabilities.

52.

Monitoring Communications. VDOC may monitor communications between inmates with
hearing disabilities at VDOC Correctional Facilities and individuals outside of VDOC to the
same extent and with the same discretion applied to the monitoring of communications between
inmates that do not have hearing disabilities and individuals outside of VDOC.

53.

Additional Time. Within 30 days of the Effective Date of this Agreement, VDOC will
implement a written policy that provides inmates with hearing disabilities at its VDOC
Correctional Facilities three times the amount of time to use telecommunication services such as
TTYs or VRI, as inmates who do not have hearing disabilities. VDOC will notify inmates with
hearing disabilities of such additional time for telecommunications.

54.

Privacy of Communications. VDOC will ensure that the privacy of telephone calls by inmates
using a videophone, TTY, telephone with volume control, or other telecommunication device is
equal to that of other inmates’ telephone calls.
Process for Identification and Accommodation of Inmates with Hearing Disabilities

55.

Intake Policies and Procedures. VDOC will provide inmates with access to Qualified
Interpreters or other appropriate auxiliary aids and services, as are necessary to afford the inmates
effective communication at Intake. Following the United States’ investigation, VDOC represents
that it is providing appropriate auxiliary aids and services as necessary to afford inmates effective
communication at Intake. Access to Qualified Interpreters or other appropriate auxiliary aids and
services will be provided from the point that an inmate with a hearing disability notifies VDOC
of their disability, or VDOC suspects an inmate of having a hearing disability. Qualified
Interpreters or other auxiliary aids and services will be provided to aid in the explanation of
VDOC policies and procedures. Primary consideration will be given to the request of the inmate
for a Qualified Interpreter or a specific auxiliary aid or service choice unless VDOC can
demonstrate that another equally effective means of communication exists or unless providing the
requested auxiliary aid or service would result in an undue financial or administrative burden and
VDOC undertakes the process articulated in 28 C.F.R. § 35.164, including that such assertion
must be made by the VDOC Commissioner or an individual designated by the Commissioner
who has budgetary authority and must be accompanied by a written statement of the reasons for
reaching that conclusion. As detailed in the applicable regulations, VDOC’s statement would also
specify its proposed alternative aid or service that would not result in an undue burden but would
nevertheless ensure, to the maximum extent possible, that qualified individuals with disabilities
receive the benefits or services provided by VDOC.
a. VDOC will provide access to a Qualified Interpreter or other auxiliary aids and services
necessary for the inmate with a hearing disability to understand and complete the Intake
10

process. In the event VDOC is not aware, prior to Intake, that the inmate will require an
interpreter or other auxiliary aid or service to ensure effective communication, VDOC will
immediately notify the ADA Compliance Director or their designee, who will be responsible
to obtain an interpreter, either in person or by video telephone or video relay. The interpreter
must be provided within 2 hours of a request.
b. VDOC will provide written notification on Intake and orientation materials for inmates with
hearing disabilities with information on how to request a Qualified Interpreter or other
auxiliary aids or services for assistance in understanding information during the Intake
process.
56.

Within 30 days of the Effective Date of this Agreement, VDOC will implement a comprehensive
procedure to identify and provide every inmate with hearing disabilities with appropriate
auxiliary aids and services. The procedure will include, at a minimum, (1) an Intake Hearing
Screening; (2) a Secondary Hearing Assessment, and (3) the development of a Communication
Plan.

57.

Timeline Screening, Assessment, and Communication Plan. The Intake Hearing Screening
will occur within 72 hours of entry into VDOC. If VDOC determines an inmate needs a
Secondary Hearing Assessment a referral will be made to an appropriate licensed professional
within 7 days of the Intake Hearing Screening; and upon the availability of the professional, an
appointment will be made within 30 days of the referral. If extenuating circumstances prevent an
appointment within 30 days of a determination, VDOC will provide an explanation for the delay
to the United States within the 30-day period. VDOC will make every possible effort to ensure
the Secondary Hearing Assessment appointment occurs promptly thereafter, but no later than 60
days from the date of the referral. The inmate and the ADA Compliance Director or their
designee will meet with the inmate to finalize the inmate’s Communication Plan as soon as
reasonably possible, but no later than 10 days following the Intake Hearing Screening or, if
ordered, the Secondary Hearing Assessment. Regardless of whether a Secondary Hearing
Assessment is ordered, the Communications Plan shall be finalized within 30 days of the Intake
Hearing Screening, which will be modified, if necessary, within 10 days once results from the
Secondary Hearing Assessment are received.

58.

Intake Hearing Screening. Within 72 hours of entry into VDOC, VDOC will screen every
inmate for hearing disabilities as part of the VDOC intake process. VDOC will document the
Hearing Screening with the Intake Hearing Screening Assessment Form, Attachment B, of this
Agreement. If the inmate has a hearing disability or an apparent hearing disability (e.g., wears
hearing aids), VDOC personnel will complete as much of the Communication Plan as possible,
Attachment C, within two business days of Intake, which will be considered a temporary
Communication Plan until one is finalized as described in paragraph 60.

59.

Secondary Hearing Assessment. If VDOC determines a need for, or an inmate requests at any
time during incarceration, assessment for a hearing disability, VDOC will refer the inmate to an
appropriate licensed professional (e.g., ENT, audiologist, licensed hearing aid dispenser), within
14 days of the determination or request, for a Secondary Hearing Assessment. The Secondary
Hearing Assessment may include an audiological examination or other appropriate diagnostic
procedures. Information from the Secondary Hearing Assessment will be used to augment an
inmate’s existing Communication Plan, or to develop a new Communication Plan for inmates
who are suspected of having hearing disabilities during incarceration. If hearing aids or other
auxiliary devices are recommended as a result of the Secondary Hearing Assessment, VDOC will
11

provide those devices within 30 days of the date of the Secondary Hearing Assessment.
60.

Communication Plan. Within 30 days of an Intake Hearing Screening, or Secondary Hearing
Assessment, VDOC will finalize a Communication Plan, as set forth in Attachment C to this
Agreement, for every inmate with a hearing disability. The Communication Plan will identify the
auxiliary aids and services VDOC will provide to the inmate to ensure effective communication.
All such auxiliary aids and services will be provided in a timely manner, without delay, so that
they are provided for the entire duration of the programs, services and activities addressed in the
Communication Plan. Any interactions not covered by an inmate’s individual Communication
Plan will be governed by the other applicable provisions of this Agreement. VDOC will maintain
a copy of the Communication Plan in the inmate’s record. The most current version of the
Communication Plan supersedes any previous versions and will be updated periodically to reflect
changes to the inmate’s hearing status.
a.

Primary Consideration. VDOC in consultation with the inmate will make the
determination of the appropriate auxiliary aids and services necessary to ensure effective
communication. In determining what type of auxiliary aids and services are necessary,
VDOC will give primary consideration to the expressed choice of the inmate and must
honor that choice unless VDOC can demonstrate that another equally effective means of
communication exists or unless providing the requested auxiliary aid or service would
fundamentally alter the nature of the program, service, or activity, or result in an undue
financial or administrative burden and VDOC undertakes the process articulated in 28
C.F.R. § 35.164.

b.

The Communication Plan will include a list of the auxiliary aids and services the inmate is
entitled to for effective communication for:
i.

Critical interactions

ii.

Disciplinary matters, including investigations and proceedings

iii.

Interviews with Internal Affairs or investigators

iv.

Interviews or proceedings related to protective custody

v.

Meetings with VT DOC staff to discuss auxiliary aids and services

vi.

Pre-release meetings & programs, including pre-release parole meetings

vii.

Grievance interviews and processes

viii.

Educational programs and testing that include a verbal component or aural component

ix.

Vocational programs that include a verbal or aural component

x.

Religious services

xi.

Medical and mental health care services, including dental, vision, audiological,
individual and group therapy (Unless medical care and appointment is routine and
does not involve substantial conversation – see xii below)

xii.

Medical care that is routine and does not involve substantial conversation (e.g., routine
blood work or tests, regular allergy shots)

xiii.

Daily environments such as recreation, meals, the library, prison job responsibilities,
and basic communications, including conversations with counselors and correctional
officers.
12

c.

Amending the Communication Plan. VDOC will establish and implement a procedure for
inmates with hearing disabilities to work with the ADA Compliance Director and the
Facility ADA Coordinator to make amendments or modifications to the Communication
Plan. An inmate with a hearing disability may change their preferences, including
modifying, adding, or waiving services. An inmate with a hearing disability may
supplement or modify the information contained on their Communications Plan, upon
request, at any time during their incarceration even if the inmate had previously declined
services.

61.

Transfers within VDOC. VDOC will ensure that every inmate who transfers between VDOC
facilities receives the same auxiliary aids and services at the receiving facility as were provided at
the former VDOC facility. The VDOC receiving facility is required to provide auxiliary aids and
services, including Qualified Interpreters, to the inmate based on the Communication Plan.

62.

VDOC will inform all personnel having contact with an inmate with hearing disabilities of the
inmate’s disability and the auxiliary aids and services necessary to facilitate effective
communication. An inmate’s identity as someone with a hearing disability needing appropriate
auxiliary aids and services for effective communication will not be treated as confidential
medical information with respect to VDOC personnel.

63.

During the Intake process, the inmate will be offered the opportunity to have an identification
(“ID”) bracelet in a distinguishing color that clearly identifies the inmate as having a hearing
disability. The inmate can decline the distinguishing colored bracelet in favor of a standard issue
identification bracelet. The waiver of the distinguishing colored bracelet does not waive the
inmate’s right and/or access to eligible services. The inmate will not be precluded from changing
their preference during the period of incarceration to remove the waiver and may opt to have a
distinguishing colored bracelet issued at any time, and VDOC will provide the distinguishing
colored bracelet within 10 days.

64.

The distinguishing colored bracelet will signify to VDOC personnel that the inmate has a hearing
disability and as a result, may require auxiliary aids and services to understand and carry out
correctional personnel’s commands. The distinguishing colored bracelet will also indicate that
additional information about specific auxiliary aids and services for the inmate is available in the
inmate’s Communication Plan or from the Facility ADA Coordinator.
Unanticipated Interactions

65.

Interactions not Addressed in Communication Plan. VDOC will implement policies to timely
address unanticipated interactions and to resolve conflicts that arise when determining the type of
auxiliary aids and services to provide to an inmate with hearing disabilities. In the event an
unanticipated interaction or condition arises that is not addressed in the Communication Plan,
VDOC will construe the obligation to provide auxiliary aids and services broadly, and will use the
most appropriate auxiliary aid or service that is analogous to other similar types of interactions
required under the Communication Plan.

66.

Time for Interpreter Response. To the extent an interaction, meeting, or other event is not
anticipated by the Communications Plan, or to the extent an inmate does not yet have a
Communications Plan in place, VDOC will provide qualified interpreters accordingly:
13

a. VDOC will provide a qualified interpreter when a qualified interpreter is necessary to
ensure effective communication. The activity, service, or program may be delayed until the
interpreter is made available or within 4 hours, whichever is earlier, or the inmate may elect
to delay participation in the activity, service, or program until the interpreter is available,
except in situations or circumstances involving an emergency as described in this
Agreement.
b. Unless an interpreter is scheduled in advance (e.g., for an upcoming disciplinary hearing or
a scheduled medical appointment), the qualified interpreter will be provided at the earliest
reasonable time, and in all events no later than 4 hours from the time an inmate with hearing
disabilities requests an interpreter, taking into consideration, without limitation, the time of
day, day of the week, distance to be traveled, and the circumstances and location at which
the service is to be provided. The inmate will not be required to attend the event without a
qualified interpreter except in situations involving an emergency. However, the event (if it
is specific to the individual) may be rescheduled until an interpreter can participate, but no
later than 24 hours from the scheduled event, absent exigent circumstances.
c.

VDOC will use the most effective, readily available means of communicating with the
inmate until such time as a qualified interpreter is present. VDOC will inform the inmate of
the current status of efforts being taken to secure a qualified interpreter on the inmate’s
behalf within 30 minutes of VDOC making the request for the interpreter service. VDOC
will provide additional updates to the inmate, as necessary, until an interpreter is secured.
Notification of efforts to secure a qualified interpreter does not obviate VDOC’s obligation
to provide qualified interpreters in a timely manner.
Documentation and Records

67.

VDOC will document all requests it receives for qualified interpreters and the action taken in
response to each request, including denials of services. When an oral request for a qualified
interpreter is received by VDOC personnel, the employee receiving the request will provide the
inmate with an interpreter request form as soon as practical, but no later than one (1) hour from
the time of the request, absent exigent circumstances, and the employee will help the inmate in
completing the form where necessary. The documentation will be promptly provided to the
United States for review of compliance with this Agreement upon reasonable notice and request
by the United States, and included in the compliance reports required in “Monitoring and
Compliance” in this Agreement.

68.

Individual Inmates’ Records. VDOC will maintain copies of the Intake Hearing Screening,
Secondary Hearing Assessment, and Communication Plan in each inmate’s records.
Policies and Procedures

69.

Review of Effective Communication Policy. Within 30 days after the effective date of this
Agreement, VDOC will submit to the United States for review and approval a draft Effective
Communication Policy, which may be in the form of an amendment to VDOC’s existing ADA
policy, that incorporates the requirements of this Agreement. The United States will review the
draft policy and provide its comments to VDOC. VDOC will incorporate the United States’
comments and submit the revised policy to the United States for review and approval within 10
days of receipt of the United States’ comments. Within 10 days of the United States’ approval,
VDOC will adopt and implement the Effective Communication Policy.
14

70.

If any inmate who has a hearing disability requires a different auxiliary aid or service than
originally provided, VDOC will provide that other aid or service unless doing so would
fundamentally alter the service, program, or activity or would result in undue financial and
administrative burdens. 28 C.F.R. § 35.164.

71.

Adoption of a Policy and Procedure to Identify and Accommodate Inmates with Hearing
Disabilities. Within 60 days from the Effective Date of this Agreement, VDOC will submit to
the United States for review and approval a draft Policy and Procedure that incorporates the
requirements relating to the process for identifying inmates with hearing disabilities and
providing them with auxiliary aids and services to ensure effective communication. The United
States will review the draft policy and provide its comments to VDOC. VDOC will incorporate
the United States’ comments and submit the revised policy to the United States for review and
approval within 10 days of receipt of the United States’ comments. Within 10 days of the United
States’ approval, VDOC will adopt and implement the Policy and Procedures governing the
process to identify inmates with hearing disabilities, and to provide them with access to
programs, services, facilities and activities, and with appropriate auxiliary aids and services. The
policy will include, at a minimum, the following terms:
a.

An initial hearing screening at Intake to identify and document whether an inmate has or
may have a hearing disability, or whether VDOC staff suspect the inmate has a hearing
disability that may require additional testing;

b.

The parameters that trigger a Secondary Hearing Assessment, including audiologic testing if
necessary, of inmates who demonstrate difficulty hearing in the initial hearing screen, or
who notify VDOC personnel of difficulty in hearing at any point during their incarceration;

c.

A description of the process used to develop and update the Communication Plan for each
inmate with hearing disabilities;

d.

Documentation of how to conduct each phase of the process to ensure that VDOC personnel
have a record of the process and access to information regarding the types of the auxiliary
aids and services required to provide effective communication for inmates with a hearing
disability; and

e.

Assurance that VDOC will provide the type of auxiliary aids or services that are identified
on the inmate’s Intake Hearing Screening, Secondary Hearing Assessment, if provided, and
Communication Plan.
Centralized Database of Inmates with Hearing Disabilities

72.

Within 90 days of the Effective Date, VDOC will modify its existing database, or create a new
database, that provides a centralized location for information that identifies each inmate with a
hearing disability and the inmate’s requirements for auxiliary aids and services. This centralized
database will include at a minimum the following information:
a.

The name of the inmate;

b.

The facility at which the inmate is housed;

c.

Whether the inmate has an identification card or placard with the designation, “Hearing
Disability”;

d.

Copies of the inmate’s Intake Hearing Screening, Secondary Hearing Assessment, if
15

applicable, and the Communication Plan;
e.

An inventory of specific auxiliary aids and services VDOC provides to the inmate, as
described in the inmate’s Communication Plan; and

f.

Copies of authorizations and maintenance records for the inmate’s auxiliary aids and
services.

73.

VDOC will promptly and regularly update the centralized database to account for information
relating to all inmates identified with a hearing disability and any changes to the Communication
Plan.

74.

The centralized database will be available to all VDOC custody and program staff.
Interpretation of Written Materials

75.

VDOC will provide an inmate with a hearing disability the written materials it provides to all
inmates, and upon request, provide a Qualified Interpreter to ensure the inmate with a hearing
disability understands the contents of the written materials.

76.

VDOC will effectively communicate the contents of the Inmate Handbook and other written
materials, and if provided, the Inmate Orientation Video, and similar policies and publications to
all inmates who have a hearing disability, including those for whom written language is not an
effective means of communication. VDOC may choose to meet this obligation by providing a
video of a qualified interpreter signing the contents of the Handbook, Inmate Orientation Video,
and similar policies, publications, and videos, along with appropriate technology for viewing, or
by providing a qualified interpreter who will read and interpret the contents of the Inmate
Handbook and similar policies and publications to the inmate who has a hearing disability.

77.

During the term of this Agreement, VDOC will include in all future printings of its Inmate
Handbook and all similar publications a statement to the following effect:
“To ensure effective communication with inmates who have a hearing disability, the Vermont
Department of Corrections will provide appropriate auxiliary aids and services free of charge,
which may include: qualified sign language interpreters and oral transliterators, TTYs,
videophones, note-takers, computer-assisted real time transcription services, written materials,
telephone handset amplifiers, assistive listening devices and systems, telephones compatible with
hearing aids, closed caption decoders or TVs with built-in captioning, and open and closed
captioning of Vermont Department of Corrections’ programs.”
Visual Alerts and Notification Systems

78.

Inmates with hearing disabilities incarcerated at VDOC Correctional Facilities shall not miss
announcements, alarms, or any other auditory information from VDOC staff to the general
inmate population solely because of their disability. Within 6 months of the effective date of this
Agreement, VDOC will provide an effective visual or other notifications system or protocol that
will advise inmates with hearing disabilities of routine and customary announcements, alarms, or
other auditory information provided to inmates who do not have hearing disabilities, including
normal and customary notification of emergencies, evacuations, education, work assignments,
and daily prison activities, such as wake-up calls, meal times, recreational time, and other normal
16

and customary announcements. VDOC represents that it provides inmates with hearing
disabilities with access to effective routine and customary announcements and notifications.
79.

VDOC will provide personal pagers, that include visual as well as vibrating functions, in all
VDOC Correctional Facilities that house inmates with hearing disabilities. Pagers will be used as
supplemental notification systems to aid in daily notification of routine announcements and
protocols, including wake-up calls, meal times, recreational times, and other normal and
customary notifications provided to inmates who do not have hearing disabilities. Inmates may
opt to forgo the use of personal pagers, in which case this information will be documented in the
inmate’s file and in the centralized database.

80.

VDOC personnel will be properly trained in how to use the personal pagers, and will be
responsible for transmitting messages and alerts to the pagers at the same time messages and
alerts are broadcast to inmates without hearing disabilities.
Audio/Visual Media

81.

VDOC will ensure that inmates who have hearing disabilities have access to captioned audiovisual media and television programming available to inmates.

82.

VDOC will ensure that all audio-visual media purchased for inmate use in VDOC Correctional
Facilities housing inmates with hearing disabilities includes open or closed captioning and that
captioning will be turned on for an inmate who has hearing disabilities, upon request.
Medical Care

83.

Medical Emergencies. If an inmate who has a hearing disability and requires a qualified
interpreter for effective communication has a medical need that cannot wait for the assistance of a
qualified interpreter to facilitate communication, VDOC will not delay in providing whatever
medical care, treatment, evaluation, or service would be provided to other persons under similar
circumstances. In such event, VDOC will use the most effective, readily available means of
communicating with the inmate and will provide a qualified interpreter as soon as possible, but
within no more than 2 hours. VDOC will require the interpreter service agencies with whom it
contracts for VRI services to provide a qualified interpreter within 2 hours.

84.

Onsite Medical Care. VDOC will provide auxiliary aids and services, including Qualified
Interpreters, for scheduled appointments between inmates with hearing disabilities and medical
personnel at VDOC Correctional Facilities, including, but not limited to, review of medical
history, medical appointments, follow-up meetings or appointments, and treatment meetings,
consistent with the inmate’s Communication Plan.

85.

Informing Appropriate Medical Staff. VDOC staff will ensure that Medical staff is aware that
the inmate has a hearing disability and will notify Medical staff of the inmate’s preferences as
outlined on the Intake Hearing Assessment Form and Communication Plan.

86.

Scheduling Medical Appointments with Interpreters. VDOC personnel at each VDOC
Correctional Facility, or their designees, will be responsible for ensuring that Qualified
Interpreters are scheduled for all medical appointments requiring them, and any other appropriate
auxiliary aids and services are provided, consistent with the inmate’s Communication Plan.
17

87.

Emergency Events. VDOC will use VRI at VDOC Correctional Facilities for medical
emergencies, if an in-person Qualified Interpreter would have otherwise been the appropriate
auxiliary aid or service for that inmate in that context. If remote interpreting services are not
appropriate in the situation, VDOC personnel will work in conjunction with Medical staff to
secure an in-person Qualified Interpreter or other auxiliary aids or services as soon as possible.
Life-saving and other emergency medical care should never be delayed because qualified
interpreter services are not available.

88.

Scheduled Offsite Medical Care. VDOC or its designee will timely inform all offsite medical
providers that an inmate with a hearing disability will require a Qualified Interpreter or other
Auxiliary Aid or Service for medical care offsite. VDOC or its designee will confirm with the
offsite medical provider that a qualified interpreter or appropriate other auxiliary aids and services
will be provided before transporting the inmate to the appointment.

89.

Emergency Offsite Medical Care. In the case of an emergency, VDOC will inform the offsite
medical provider that an inmate with a hearing disability who requires an in-person, Qualified
Interpreter or other Auxiliary Aid or Service, is being transported to the offsite care provider.
VDOC will notify the offsite medical care provider as soon as possible. Notification will include
the estimated time of arrival.
Work Assignments at VDOC Correctional Facilities

90.

VDOC will provide opportunities for institutional work assignments for inmates with hearing
disabilities at VDOC Correctional Facilities that are equal to opportunities provided to hearing
inmates. An inmate with hearing disabilities may not be prohibited from an institutional work
assignment based on disability unless VDOC demonstrates that the individual’s participation would
constitute a direct threat. See 28 C.F.R. § 35.104. In determining whether an individual poses a direct
threat to the health or safety of others, VDOC must make an individualized assessment, based on
reasonable judgment that relies on current medical knowledge or on the best available objective
evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential
injury will actually occur; and whether reasonable modifications of policies, practices, or procedures
or the provision of auxiliary aids or services will mitigate the risk. See 28 C.F.R. § 35.139.
Post-Release Supervision

91.

VDOC Department of Parole and Probation will develop an updated Communication Plan to reflect
the post-release supervision environment in consultation with the former inmate and VDOC ADA
coordinator. VDOC will provide a Qualified Interpreter or other auxiliary aids and services for all
meetings, including telephonic and video communications, involving significant or critical
interactions, after an initial request for a Qualified Interpreter or other auxiliary aids and services is
made by either the former inmate or by VDOC Department of Parole and Probation staff. VDOC
will give primary consideration to the request by the former inmate for the auxiliary aids and services
they require.
Reasonable Modification of Handcuffing Policies

92.

VDOC will ensure that, when inmates who have hearing disabilities are cuffed or restrained, they are
cuffed or restrained in a manner that permits effective communication (e.g., cuffing inmates in the
18

front so they can sign; having one hand free in order to write) unless legitimate safety concerns
dictate otherwise.
V.

REMEDIAL RELIEF – ARCHITECTURAL

93. Within 33 months and in accordance with the timeline set forth in Attachment A, VDOC will complete
all the modifications to SSCF, CRCF, and NSCF specified in Attachment A, using the 2010 ADA
Standards as required by the applicable architectural standards, subject to paragraph 94 below. See 28
C.F.R. § 35.151(c) and the Appendix thereto, copied below.
Date of Construction or Alteration
Before September 15, 2010
On or after September 15, 2010, and
before March 15, 2012

Applicable Standards
1991 ADA Standards or UFAS
1991 ADA Standards, UFAS, or 2010
ADA Standards

On or after March 15, 2012

2010 ADA Standards

94.

VDOC will seek Capital Bill funding from the Vermont General Assembly for the
modifications described in paragraph 93 above. If the Legislature fails to timely appropriate adequate
funding after VDOC’s good faith attempts to obtain such funding, VDOC will promptly notify the
United States of such failure on the part of the Legislature. The parties will then negotiate a single
reasonable extension of the deadline listed in paragraph 93, above, and the timelines set forth in
Attachment A for the impacted projects, taking into account the requirements of the legislative
process in Vermont and the reasonable construction timelines required for each project. The United
States will not consider VDOC to be in violation of this agreement for failure to meet the timelines
set forth in Attachment A unless the State of Vermont fails to meet the deadline and timelines
extended under this paragraph 94, subject to any additional extensions granted by the United States
under paragraph 127, below.

95.

As described in Attachment A, VDOC will ensure additional cells with lower bunks, showers, toilet
rooms, and tables as necessary, in accordance with the 2010 Standards, to ensure that each inmate
with a disability has the same access as non-disabled inmates to the elements necessary to afford the
inmate safe, appropriate housing. This includes, but is not limited to, an adequate number of
accessible toilets, lavatories, showers, and tables to meet the needs of the population of inmates with
disabilities. 28 C.F.R. § 35.152.

96.

In the event that VDOC has already undertaken an alteration, addition, or other modification to any
element identified in Attachment A or otherwise after January 26, 1992, and prior to the Effective
Date of this Agreement, VDOC will submit, within 6 months, a written report to the Independent
Licensed Architect (“ILA”) and the United States pursuant to paragraph 114 below summarizing the
actions taken and providing evidence establishing each individual element’s compliance with the
applicable architectural standards.

97.

Independent Licensed Architect (“ILA”). Within 3 months of the effective date of this Agreement,
VDOC will retain an ILA, approved by the United States, who is knowledgeable about the
architectural accessibility requirements of the ADA. The ILA must act independently to certify
whether any alterations, additions, or modifications identified in Attachment A, made by VDOC
during the term of this Agreement comply with the applicable standard pursuant to 28 C.F.R. §
35.151(c) and the Attachment to 28 C.F.R. § 35.151(c). The United States will not bear any of the
costs and expenses of retaining and utilizing the ILA, including the costs and expenses of any
19

consultants and staff. The ILA will be compensated without regard to the outcome.
98.

Program Access in Existing Facilities. VDOC will take any actions necessary to make each of
VDOC’s programs, services, and activities operating at a facility that is the subject of this Agreement,
when viewed in its entirety, readily accessible to and usable by people with disabilities consistent
with 28 C.F.R. §§ 35.150(b)(1) and 35.151.
VI.

99.

ADA Compliance Director and ADA Facility Coordinators

Within 30 days of the effective date of this Agreement, VDOC will designate an ADA Compliance
Director who will oversee the effective communication program and will be responsible to ensure
compliance with VDOC policies and compliance with the ADA throughout VDOC. VDOC
represents that it has already designated an ADA Compliance Director to oversee the effective
communication program and be responsible for ensuring compliance with the ADA.

100. Simultaneously with the designation of the ADA Compliance Director, each VDOC Correctional
Facility will designate one or more Facility ADA Coordinators who are responsible for compliance
with this Agreement at each respective VDOC Correctional Facility. The Facility ADA Coordinators
are responsible for developing the Communication Plan in consultation with the ADA Compliance
Director, and for providing immediate access to, and proper use of, appropriate auxiliary aids and
services for inmates with hearing disabilities. VDOC represents it has designated Facility ADA
Coordinators at each correctional facility.
101. VDOC will circulate broadly and throughout VDOC system and publish on VDOC’s website the
names and contact information, including telephone numbers, email addresses and office locations of
each Facility ADA Coordinator and the ADA Compliance Directors that relatives, registered friends,
and associates can contact during normal business hours.
102. VDOC will implement and maintain a log of calls from relatives, registered friends, and associates of
inmates with disabilities to the Facility ADA Coordinators or the ADA Compliance Director, and
include a copy of these logs to the United States upon request.
103. The ADA Compliance Director or designee will be available 24 hours per day, 7 days a week to
answer questions and to provide assistance to the Facility ADA Coordinators regarding immediate
access to and proper use of auxiliary aids and services required by this Agreement, including
providing qualified interpreters within the time frames set forth in this Agreement.
104. ADA Facility Coordinators or designees will be available at each Correctional Facility during and
throughout the operating hours of the individual facility. The Facility ADA Coordinators or
designees, in coordination with the ADA Compliance Director, will know where the auxiliary aids
are stored, and how to operate and deploy them, and will ensure that they are properly maintained,
repaired, replaced, and distributed in accordance with the provisions of this agreement.
ADA Training
105. Within 6 months of the effective date of this Agreement, VDOC will submit for pre-approval by the
United States a proposed training program on the requirements of Title II of the ADA and this
Agreement. The submission will include a description of the training, the agenda, any handouts, and
20

the name, title, and address of the trainer. The United States will review the proposed training
program and may provide comments to VDOC. VDOC will incorporate any comments provided by
the United States and submit the revised ADA training program to the United States for final review
and approval prior to its implementation.
106. Within 9 months of the effective date of this Agreement, and at least once per calendar year
throughout the term of this Agreement, VDOC will provide live training to all personnel who have
contact with inmates. The training will be sufficiently detailed to enable VDOC to effectively
implement all provisions of this Agreement and all additional policies and procedures developed
pursuant to this Agreement, including the Effective Communication Policy, and will also specifically
address prohibitions against discrimination, coercion, intimidation, or retaliation with respect to
persons who have complained or opposed any practice made unlawful by Title II or this Agreement,
or who have made or participated in any complaint or investigation under Title II or this Agreement,
or who may have requested, sought, or obtained the enforcement of any right, benefit, aid, or service
under or required by Title II or this Agreement.
107. The training will include instruction on interactions with inmates who have a hearing disability and
on the effective communication measures required under this Agreement. To the extent that
supplemental instruction is necessary after the Effective Communication Policy has been finalized,
VDOC will provide a written supplement to those personnel who attended the live training prior to
the implementation of the Policy.
108. VDOC will maintain records of each training and include attendance, dates, and times of training, and
provide this information in the semi-annual compliance reports required under paragraph 114.
VDOC will ensure that all relevant current and future personnel understand and implement the terms
of this Agreement.
109. VDOC will provide appropriate instruction regarding VDOC’s Effective Communications Policy to
contractors and volunteers who will have contact with inmates with hearing disabilities.
110. Within nine months of the effective date of this Agreement, VDOC will incorporate ADA training
revised and approved by the United States as set out in this Agreement into the curriculum at the
Vermont Correctional Academy for all new personnel who will have contact with inmates.
ADA Grievance Procedures
111. Within 60 days after the effective date of this Agreement, VDOC will submit to the United States for
review and approval its current ADA Grievance Procedure, for resolving inmate ADA complaints.
28 C.F.R. § 35.107(b). The United States will review the ADA Grievance Procedure and may
provide comments to VDOC. VDOC will incorporate any comments provided by the United States
and submit the revised ADA Grievance Procedure to the United States for review and approval.
Within 20 days of the United States’ approval, VDOC will adopt and implement the approved ADA
Grievance Procedure. VDOC will distribute and publish grievance procedures to all wardens; post
copies of the procedures in conspicuous locations at each facility; and include the procedures in the
Inmate Handbook.

21

112. Retaliation. VDOC agrees that it will not retaliate against any person who filed or may file a
complaint, provided information or assistance, or participated in any other manner in the investigation
or proceeding relating to Title II or this Agreement.
113. Recordkeeping. For the term of this Agreement, VDOC will preserve all records related to this
Agreement. Such documents include, but are not limited to, revised policies, practices, and
procedures; complaints or grievances; and training materials and attendance logs created pursuant to
this Agreement. VDOC will, upon reasonable notice, provide copies of these records to the United
States upon the United States’ request.
VII.

COMPLIANCE, MONITORING, AND REPORTING

114. Within six months of the effective date of this Agreement, VDOC will provide the United States with
a written status report, including any supporting documentation, delineating all steps taken during the
reporting period to comply with each substantive provision of this Agreement. Thereafter, for the
duration of this Agreement, VDOC will send an updated status report every six months, by email to
counsel for the United States, referencing D.J. No. 204-78-44. The United States will review each
report and provide comment regarding deficiencies or failures to comply, if any. Upon receipt of the
United States’ comments, VDOC will address all of the United States’ concerns in the next regular
report.
a.

Each status report will include a summary of all training required by this Agreement that
was conducted within the six-month time-period, a copy of the training agendas, and the
names of the employees who attended each training.

b.

Each status report will include records to document VDOC’s compliance with the
requirements of this Agreement, including, but not limited to, records of all auxiliary aids or
services or reasonable modifications requested by or provided to individuals with
disabilities for the duration of this Agreement, and copies of all new communication plans
developed during the term of this Agreement. Such records will include the date of the
request; the nature of the request; the determination regarding the request; the date of the
determination; and who participated in the decision-making.

c.

Each status report will include photographs showing measurements, architectural plans, and
confirmation that VDOC has remediated architectural barriers to access at its facilities.
Reports will include certifications from the ILA in the initial report and annually thereafter
(i.e., in every other regular report).

d.

Each status report will include copies of VDOC maintenance logs that document routine
review, maintenance, and testing of accessibility-related equipment and elements, including
routinely testing accessibility aids and routinely auditing the accessibility of its programs
and facilities. This provision, however, does not prohibit isolated or temporary interruptions
in service or access due to maintenance or repairs. 28 C.F.R. § 35.133(b).

e.

VDOC will submit a final status report 60 days before the conclusion of the term of this
agreement.
MONETARY RELIEF

115. VDOC agrees to pay a total of eighty thousand dollars ($80,000) to compensate five (5) aggrieved
persons identified by the United States during its investigation.
22

116. Within 30 days of the effective date of this Agreement, the United States will send to each aggrieved
person identified by the United States a copy of this signed Agreement, along with a Release of
Claims Form.
117. Within 30 days of VDOC’s receipt of a completed Release of Claims Form from any of these
1111

individuals, VDOC will send to such individual, at the address provided by the United States, a check
in an amount agreed to as directed by the United States, consistent with Paragraph 115. If an
aggrieved person does not sign and return the Release of Claims form within 45 days of the United
States sending the Release of Claims form, the aggrieved person will forfeit and waive their
entitlement to payment under this Agreement, and VDOC may retain the money designated for that
aggrieved person, decreasing the total amount VDOC is required to pay under Paragraph 115.
VIII.

IMPLEMENTATION AND ENFORCEMENT

118. Implementation. VDOC will implement all reforms necessary to effectuate the terms of this
Agreement and will revise any policy, procedure, or practice, as necessary, to effectuate the terms of
this Agreement. It is a violation of this Agreement for VDOC to fail to comply in a timely manner
with any of the requirements of this Agreement.

119. Notification of Noncompliance and Enforcement. If the United States believes that this Agreement or
any of its requirements has been violated, it will notify VDOC in writing and attempt to resolve the
issue or issues in good faith. If the United States and VDOC are unable to reach a satisfactory
resolution of the issue or issues raised within 60 days of the date it provides notice to VDOC, the
United States may commence a civil action in the U.S. District Court for the District of Vermont to
enforce the terms of this Agreement or the ADA.

120. Lack of Waiver. A failure by the United States to enforce any provision or deadline of this
Agreement will not be construed as a waiver of its right to enforce any provision or deadline of the
Agreement.
121. Headings. The paragraph headings in this Agreement are for convenience only and will not be
deemed to affect in any way the language of the provisions to which they refer.
122. Entire Agreement. This Settlement Agreement, including Attachments A-C, constitutes the entire
agreement between the Parties relating to settlement of Department of Justice Complaint No. 204-7844. No other statement, promise, or agreement, either written or oral, made by any party or agents of
any party that is not contained in this written Settlement Agreement, will be enforceable.
123. Consideration. In consideration of the terms of this Agreement, the United States agrees to refrain
from filing a civil suit under Title II of the ADA except as provided in Paragraph 119.
124. Severability. If any term of this Agreement is determined by any court to be unenforceable, the other
terms of this Agreement shall nonetheless remain in full force and effect.
125. Effective Date. The effective date of this Agreement is the date of the last signature below.
126. Limitation. This Agreement does not purport to remedy any other potential violations of the ADA or
23

any other Federal law not specifically referenced herein. This Agreement does not affect VDOC’s
continuing responsibility to comply with all aspects of the ADA.
127. Extension. The Parties may agree in writing to extend any applicable deadlines specified in this
Agreement. The United States will not unreasonably deny requested extensions, if made in advance
of any deadline, and following VDOC’s due diligence to meet such a requirement.
128. Successors, Assignees, Employees, and Agents. This Agreement is binding on all successors,
assignees, employees, agents (including contractors) and all those working for or on behalf of VDOC.
129. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an
original, and the counterparts shall together constitute one and the same Agreement, notwithstanding
that each Party is not a signatory to the original or the same counterpart.
130. Signatories Bind Parties. The persons signing for VDOC and the United States each represent that
they are authorized to bind VDOC and the United States to this Agreement.
131. Term of Agreement. This Agreement will remain in effect for three years from the effective date.
132. Posting Policies and Procedures. Within 14 days of the United States’ approval of the Effective
Communication Policies and ADA Grievance Procedure, VDOC will notify inmates of the adoption,
implementation, and requirements of the Effective Communication Policies and the ADA Grievance
Procedure, citing this Agreement. The Agreement will be made available to inmates in facility law
libraries. VDOC will amend the Inmate Handbook and similar materials to describe the requirements
of the Effective Communication Policies and the ADA Grievance Procedure.
133. No Third-Party Beneficiary. The terms and provisions of this Agreement are intended solely for the
benefit of each party hereto and their respective successors, assignees and agents, and it is not the
intention of the parties to confer third-party beneficiary rights upon any other person.
134. Public Document. This Agreement is a public document. A copy of this document may be made
available to any person upon request.

24

AGREED AND CONSENTED TO:
For Vermont Department of Corrections:
/s/
JAMES BAKER
Interim Commissioner,
Vermont Department of Corrections
Date: 10/28/21

For the United States:
REBECCA B. BOND
Chief
ANNE S. RAISH
Principal Deputy Chief
MELLIE H. NELSON
Supervisory Trial Attorney
/s/
BETH A. ESPOSITO
Trial Attorney
Disability Rights Section
Civil Rights Division
United States Department of Justice
Washington, D.C.
Date: 10/28/21
JONATHAN A. OPHARDT
Acting United States Attorney
District of Vermont
/s/
JULIA TORTI
Chief, Civil Division
United States Courthouse
11 Elmwood Avenue, 3rd Floor
Burlington, VT
Date: 10/28/21

ATTACHMENT A: REPORT OF ARCHITECTURAL VIOLATIONS

ATTACHMENT B: INTAKE HEARING SCREENING ASSESSMENT FORM
Vermont Department of Corrections Intake Screening - Auxiliary Aids and Services
Assessment for Deaf or Hard of Hearing Inmates
SECTION I.
Inmate Name:

ID#:

Facility:

Date Completed:
Disability (check one):

[ ] Deaf [ ] Hard of Hearing

[ ] Speech [ ] None of these

If “None of these” is checked, this form is completed and may be signed off by Booking Officer.
Otherwise, proceed to Section II, which should be completed and signed off by a QHCP for the VDOC’s
medical contractor within 72 hours of Intake.
SECTION II.
1. Assessment of Sign Language Ability
a. Inmate uses sign language? (check one):
[ ] Yes
[ ] No
b. If yes to 1.a., is sign language the inmate’s primary language:
[ ] Yes
[ ] No
c. Inmate’s proficiency with sign language:
[ ] Beginner [ ] Conversational
[ ] Fluent
d. Type of interpreter needed (check one):
[ ] ASL (American Sign Language)
[ ] Signed English
[ ] ASL with Certified Deaf Interpreter
[ ] Sign Language from another country
[ ] Other (specify)
2. Assessment of Reading / Writing Ability
(For example: Is the person able to read and write in any language understood by VT DOC personnel?
Does the person have the ability to engage in basic communications through reading / writing? If so, are
there conditions required, such as no time constraints? List required conditions)
______________________________________________________________________________________
______________________________________________________________________________________
______________________________________________________________________________________
______________________________________________________________________________________
3. Assessment of Speaking Ability
(For example: Can the person speak sufficiently clearly for the average person to understand them? If so,
are there conditions required, such as a quiet setting? List required conditions)
______________________________________________________________________________________
______________________________________________________________________________________
______________________________________________________________________________________
27

______________________________________________________________________________________
______________________________________________________________________________________
4. Auxiliary Aids and Services and Devices Currently Used
a. Uses:
b. Device:

[ ] Hearing Aid(s)
[ ] ASL Interpreter
[ ] Requires Batteries

[ ] Cochlear Implant / Implantable Device
[ ] other ___________(specify)
[ ] Is Rechargeable

NOTE: unless otherwise indicated, please CUFF IN FRONT.
5. If this is a Re-Assessment, Changes Since Prior Assessment
______________________________________________________________________________________
______________________________________________________________________________________
______________________________________________________________________________________
______________________________________________________________________________________
______________________________________________________________________________________
__________________________________________________________________________
6. Additional Communication Assessment
______________________________________________________________________________________
______________________________________________________________________________________
______________________________________________________________________________________
______________________________________________________________________________________
______________________________________________________________________________________
__________________________________________________________________________
Is referral to an audiologist recommended? No_____

Yes_____ Date of Referral _________

Form completed by (Booking officer or QHCP):
______________________________________________________________________________________
Printed Name
Signature
Date
Inmate:
______________________________________________________________________________________
Printed Name
Signature
Date

28

ATTACHMENT C: Vermont Department of Corrections Communication plan
for Deaf or Hard of Hearing Inmates
A. Accommodations that must be provided for the following programs and activities:
Document whether Inmate requires an interpreter. If Inmate’s primary language is
American Sign Language per initial assessment, presume an interpreter is needed for
items 1-10.
For Other Accommodations: Document whether Inmate requires other Accommodations
or Auxiliary Aids/Services, such as one-on-one meetings in quiet room, exchange of
written notes, visual aids, etc.
Interpreter
Needed?
(yes/no)

Program, Service, or Activity
1. Disciplinary matters, including
investigations and proceedings
2. Interviews with Corrections Investigation
Unit or other investigators
3. Interviews or proceedings related to
administrative segregation
4. Meetings with VT DOC staff to discuss
Auxiliary Aids and Services
5. Pre-release meetings & programs, including
pre-release parole meetings
6. Grievance interviews and processes
7. Educational Programs and testing that
include a verbal component or aural
component
8. Vocational programs that include a verbal
or auditory component
9. Risk Intervention Services that include
verbal or auditory component
10. Religious Services

29

Other Accommodation Needed?
(List what is needed)

11. Medical and mental health care services,
including dental, vision, audiological,
individual and group therapy (Unless
medical care and appointment is routine and
does not involve substantial conversation –
see 12 below)
12. Medical care that is routine and does not
involve substantial conversation (e.g.,
Routine blood work or tests, regular allergy
shots)
13. Daily environments and basic
communications, including conversations
with counselors, gym, meals, library
B. Hearing Aids
Inmate will be provided with (mark all that apply):
[ ] Hearing aid for right ear
[ ] Hearing aid for left ear
[ ] Cochlear Implant
Battery requirements (include if inmate already possessed hearing aid):
_________________________________________________________
C. Identification Bracelet

[ ] No hearing aid

Distinguishing colored identification bracelet will be provided (select one):
[ ] Yes [ ] Inmate declines distinguishing colored identification bracelet
D. Cell or Bunk Marker
Identification marker will be placed to identify a deaf or hard of hearing inmate (select one):
[ ] Yes [ ] Inmate declines identification marker
E. Other Technologies
Inmate shall be entitled to the following (mark all that apply):
[ ] TTY
[ ] Video Phone
[ ] Amplified Phone
[ ] Traditional
Phone
[ ] Vibrating Watch [ ] Pager
[ ] Tactile Notification System[ ] Over-the-ear headphones
F. Other Auxiliary Aids and Services or Accommodations Needed
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Form completed by (VDOC staff):
30

______________________________________________________________________________
Printed Name
Signature
Date
Inmate:
______________________________________________________________________________
Printed Name
Signature
Date

31