The purpose and effect of the proposed rule is to update definitions and Form DC2-530, Reasonable Modification or Accommodation Request, and to clarify the role of the ADA coordinator and the warden regarding requests related to modification or ...

 

DEPARTMENT OF CORRECTIONS

RULE NO.:RULE TITLE:
33-210.201ADA Provisions for Inmates
PURPOSE AND EFFECT: The purpose and effect of the proposed rule is to update definitions and Form DC2-530, Reasonable Modification or Accommodation Request, and to clarify the role of the ADA coordinator and the warden regarding requests related to modification or accommodation due to a disability.
SUMMARY: Definitions and Form DC2-530, Reasonable Modification or Accommodation Request are updated and the role of the ADA coordinator and the warden are clarified in regards to requests related to modification or accommodation due to a disability.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:
The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the agency.
The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: upon review of the proposed changes to these rules and incorporated forms, the department has determined that the amendments will not exceed any one of the economic analysis criteria in a SERC as set forth in Section 120.541(2)(a), FS.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
RULEMAKING AUTHORITY: 944.09 FS.
LAW IMPLEMENTED: 944.09 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: LaDawna Fleckenstein, 501 South Calhoun Street, Tallahassee, Florida 32399-2500

THE FULL TEXT OF THE PROPOSED RULE IS:

 

33-210.201 ADA Provisions for Inmates.

(1) Policy. In accordance with the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et. seq., the Department of Corrections does not discriminate, on the basis of a disability, against any inmate with regard to its programs, services, or activities for which the inmate is otherwise qualified. Inmates shall be provided the opportunity to identify the nature of any disability and to request an accommodation or auxiliary aids. Additional information on the ADA is available from the ADA Coordinator chief administrator or the Intake Officer impaired inmate coordinator of any department facility.

(2) Definitions.

(a) ADA Coordinator – the central office employee assigned to coordinate the department’s efforts to comply with and carry out its responsibilities under the implement provisions of Title I and Title II of the ADA and Section 504 of the 1973 Rehabilitation Act.

(b) Auxiliary aids and services include:

1. Qualified interpreters on-site; notetakers; written materials; exchange of written notes; telephone handset amplifiers; telephones compatible with hearing aids; closed caption decoders; closed captioning; voice and text telecommunications products and systems, including text telephones (TTYs) or equally effective telecommunications devices; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing;

2. Qualified readers; taped texts; audio recordings; Brailled materials; large print materials; or other effective methods of making visually delivered materials available to individuals who are blind or have low vision;

3. Acquisition or modification of equipment or devices; and

4. Other similar services and actions.

(c)(b) Direct threat – refers to a health or safety risk that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services in which an inmate poses a significant likelihood of substantial harm to department staff, the public, other inmates, or herself or himself.

(d) Disability – refers to a physical or mental impairment that substantially limits one or more major life activities.

(e)(c) Equally effective communication – communication with inmates with various disabilities that is equal to communication with inmates without any documented disabilities.

(f)(d) Health care appliance – refers to devices or medical support equipment prescribed for a disabled inmate and approved by the Office of Health Services or its designee.

(e) Individual with a disability – refers to an inmate, as determined by department medical staff, who has a physical or mental impairment that substantially limits one or more major life activities.

(g)(f) Intake officer – refers to the staff member at an institution who is designated to respond to inmate grievances alleging a violation of the ADA and to requests for accommodation.

(h)(g) Major life activities – activities that an average person can perform with little or no difficulty, such as caring for one’s self, walking, speaking, performing manual tasks, hearing, learning, seeing, breathing, standing, sitting and working or lifting.

(i)(h) Mental impairment – any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness and specific learning disabilities.

(i) Other permanent disability – refers to a disability other than a mobility, hearing, vision or speech impairment that may require the inmate to be placed in a designated facility due to the severity of the disability.

(j) Physical Impairment - -refers to any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, cardiovascular, respiratory, special sense organs, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.

(j) Permanent disability – an impairment that is not expected to improve within six months.

(k) Qualified inmate with a disability – refers to an inmate with a physical or mental impairment that substantially limits one or more life activities and a person who meets the essential eligibility requirements of the department and Title II of the ADA of 1990 and whose access to the department’s programs, services, or activities can be accomplished by reasonable accommodation.

(l) Reasonable accommodation – refers to any modification or adjustment that will allow a qualified inmate with a disability individual to participate in, or make use of benefit by, the programs, services, or activities of a department institution or facility.

(m) Substantially limited – refers to an individual who is unable to perform, or is significantly limited in the ability to perform a major life activity compared to an average person in the general population.

(m)(n) Undue hardship – refers to an action that is excessively costly, extensive, substantial, or disruptive to the business being conducted at a facility or that would fundamentally alter the nature or operation of the facility.

(3) Accommodation Request Procedure.

(a) The determination of whether an inmate has a disability is disabled shall be made by department medical staff, either at reception or at the institution where the inmate is assigned, based upon the inmate’s record of an existing physical or mental impairment or some other qualified evaluation of the inmate inmate’s impairment.

1. No change.

2. In determining if a person’s physical or mental impairment substantially limits a major life activity, the following factors shall be considered:

a. through c. No change.

(b) All department and privately operated facilities shall furnish to any inmate, upon request, a Reasonable Modification or Accommodation Request, Form DC2-530. Form DC2-530 is hereby incorporated by reference. Copies of this form are available from the Forms Control Administrator, Office of Research, Planning and Support Services, 501 South Calhoun Street, Tallahassee, Florida 32399-2500. The effective date of this form is __________ 11-22-06.

(c) Individuals,who have a documented disability and are requesting an accommodation or modification shall submit a request in writing on the Reasonable Modification or Accommodation Request, Form DC2-530, specifying the type of accommodation requested and why it is necessary. Any supporting documentation must be attached to Form DC2-530.

1. The Reasonable Modification or Accommodation Request, Form DC2-530, shall be submitted to the warden or the designated intake officer. The This designated intake officer staff member shall be:

a. The assistant warden for programs (AWP) or the assistant warden (AW) at major department institutions, in the event the institution does not have an AWP; and

b. The correctional officer major at work release centers.;

c. The facility chief for community facilities; or

d. The facility supervisor for contract facilities.

2. Inmates who cannot put their requests in writing shall make their verbal requests to classification, security, the warden, or library staff or to the intake officer who shall reduce the request to writing onto the DC2-530 and have the inmate sign or otherwise acknowledge it.

(d) The warden or the intake officer shall review the DC2-530 and approve, give modified approval of, or deny the inmate’s request for an accommodation. The warden or intake officer shall request additional information from the Chief Health Officer as necessary to verify the inmate’s disability or to assist with the review of the request.

1. If the warden or intake officer approves the request for accommodation, the inmate and the ADA coordinator shall be notified by memo, with the anticipated completion date, if necessary, of the accommodation.

2. If the warden or intake officer denies or grants a modified approval of the request, she or he shall forward the form, and any supporting documents, to the central office ADA coordinator within ten (10) days, including a justification or reason for the denial or modification. The requesting inmate shall be notified of the action taken by memo.

(e) The central office ADA coordinator shall review the request received and note whether she or he concurs or disagrees with the warden or intake officer’s decision.

1. If the ADA coordinator disagrees with the warden or intake officer’s recommendation, she or he will consult with the appropriate central office director for the program area in which the accommodation is requested to obtain input.

2. If, after consulting with the appropriate central office director for the program area in which the accommodation is requested, the recommendation of the ADA coordinator is a reversal of the warden’s or intake officer’s decision, the form shall be returned to the warden or intake officer with a memorandum stating the reasons for this action.

(f) Once the institution receives this information, it will take steps to comply with the recommendations of the ADA coordinator and notify the inmate of the actions to be taken and the ADA coordinator when the action has been taken by memo.

(g) Copies of the requests and all other documentation shall be placed in the inmate’s medical file and in the department’s confidential ADA file located in the central office.

(4) Justification for Denial of Requests for Accommodation. A request for a particular accommodation shall be denied for any of the following reasons:

(a) A legitimate penological interest:

1. A request for a particular accommodation shall be denied when it would pose a risk to the safety or security of the institution, staff, or the public, or when the request would adversely impact other penological interests, including deterring crime and maintaining inmate discipline.

2. No change.

(b) The department need not take an action to provide accessibility to a service, program or activity if the action would impose or require:

1. No change.

2. An undue administrative burden on the agency; or

3. A fundamental alteration of the nature of the service, program, or activity. The ADA coordinator shall consult with the central office director the program area in which the accommodation is requested to make a determination if an accommodation would constitute a fundamental alteration.

(c) An institution cannot deny a request for accommodation using the undue burden defense without contacting the ADA Coordinator. The ADA coordinator shall consult with the appropriate central office program area in which a particular accommodation is requested and any necessary department staff before making a determination that a requested accommodation would constitute an undue financial or administrative burden on the agency or a fundamental alteration to the nature of a service, program, or activity. The final decision that compliance with the requested accommodation would result in an undue financial or administrative burden or a fundamental alteration of the nature of a service, program, or activity shall be made by the Secretary or his or her designee after consideration of all resources available for use in the funding and operation of the service, program or activity. The final decision must be accompanied by a written statement of the reasons for reaching the conclusion.. The decision and the statement will be retained in the confidential ADA file.

(d)(c) Direct Threat. The ADA coordinator will consult with the warden, and the appropriate central office director for the program area in which the particular accommodation is requested, and any other necessary departmental staff prior to determining shall make a final determination on whether a requested accommodation poses a direct threat.

(e)(d) Equally Effective Means. A request for a particular accommodation shall be denied if equally effective access to a program, service, or activity can be afforded through an alternate method which is less costly or intrusive. Alternative methods that are less costly or intrusive to the existing operation or program shall be utilized to provide reasonable access in lieu of modifications requested by the inmate so long as they are equally effective.

(f) A request that does not present a violation of Title II of the ADA will be denied as not qualifying as an ADA issue.

(5) Complaints and Accommodation Appeals. Inmates who have a complaint alleging a violation of the Americans with Disabilities Act or who want to shall appeal the denial of a request requests for accommodation shall follow by follwing the guidelines set forth in Chapter 33-103 Rule 33-103.001, F.A.C.

(6) Auxiliary Aids. The Department will provide inmates with auxiliary aids whenever necessary to ensure equal access to programs, services, or activities offered by the Department. When an auxiliary aid is deemed necessary to provide an inmate with an equal opportunity to participate in a program, service or activity, it shall be provided at the expense of the department. Effective Communication. Reasonable accommodation shall be afforded to inmates with disabilities to ensure equally effective communication with staff, other inmates, and the public.

(a) Auxiliary aids which are reasonable, effective, and appropriate to the needs of the inmate, shall be provided to ensure equal access to programs, services, or activities offered by the department when simple written or oral communication is not effective.

(b) Auxiliary aids include bilingual aids or qualified interpreters, readers, sound amplification devices, captioned television or text displays, telecommunication devices for the deaf (TDD), audiotaped texts, Braille materials, large-print signs and materials, or the assignment of an inmate assistant for work, training, and school.

(c) When an auxiliary aid is deemed necessary to provide an inmate with an equal opportunity to participate in a program, service or activity, it shall be provided at the expense of the department.

(7) Health Care Appliances.

(a) Prescription and approval.

1. through 2. No change.

3. Accommodations shall include modifying the appliance or substituting a different appliance at the department’s state expense, as long as, its function is equivalent or superior.

(b) No change.

(c) Maintenance of Health Care Appliances. It is the joint responsibility of the department and the inmate to maintain all health care appliances in good repair and operation. When an appliance is in need of repair or replacement, the inmate shall notify health care staff of his or her needs by a medical call-out or a request to see a doctor.

1. through 2. No change.

(8) Maintenance of Accessible Features and Equipment. The department shall maintain necessary equipment in operable working condition and necessary structural features of buildings to make its services, programs, and activities accessible to disabled inmates. If maintenance or repairs are required, service or access shall be temporarily interrupted for no longer than 30 days duration.

(8)(9) Educational and work programs. Inmates with disabilities shall have the opportunity to participate in educational and work programs.

(a) through (b) No change.

(9) Visiting. Inmates with disabilities will be provided reasonable accomodations for purposes of visitation.

Rulemaking Authority 944.09 FS. Law Implemented 944.09 FS. History–New 8-19-01, Amended 2-8-06, 11-22-06,                _________.

NAME OF PERSON ORIGINATING PROPOSED RULE: James Upchurch, Director, Office of Institutions
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Kenneth S. Tucker, Secretary
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: November 13, 2012
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: November 16, 2012