People with disabilities are protected by the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504).  ADA Title II and Section 504 protections apply to people with disabilities not only in the community, but also those who are in institutional settings like jails and prisons. These laws prevent prisons from discriminating against any qualified person with a disability in accessing the prison’s jobs, programs, activities or services.

What is considered a disability?  Disability is a physical or mental impairment that substantially limits one or more of your major life activities such as caring for yourself, seeing, hearing, walking, learning, breathing, sleeping, thinking, concentrating, communicating, working, and also includes your major bodily functions (heart, brain, respiratory, circulatory, neurological, etc.). You may also qualify as a person having a disability if you have a record of such an impairment, or you are regarded as having such an impairment.  Determining if someone has a disability is an individualized assessment, but disability is construed broadly.  People with disabilities can face discrimination if they are not provided with the opportunity to participate in the facility’s programs, activities or services offered to those without a disability.

One way to prevent discrimination against a person with a disability is by providing a reasonable accommodation – making a change to the environment or procedures or a process – so that a person with a disability can access the facility or participate in the program, service, or job. For example, access to special headphones may help a deaf/hard of hearing person access tablet programs, and a ramp allows a prisoner with mobility limitations to access the recreation yard, or an aide can keep someone from falling or assisting with other self-care issues.

How do you get a reasonable accommodation for your disability?  Prison officials may recognize on their own that you need a reasonable accommodation to fully and equally participate in a program, service, or benefit.  If officials don’t recognize that you need an accommodation (not all disabilities are visible), you can make the request yourself for an accommodation that you need.

The Prison ADA Request Policy is included in the NC DAC Policy and Procedures Manual, Chapter E Section .2600.  That policy is summarized in this document.

How to Request a Reasonable Accommodation

  1. You may ask any DAC staff member for a reasonable accommodation request form. The form is the Offender Reasonable Accommodation Request form (ORAR). The form number is DC-746.  The form is available in English and Spanish. You may also ask someone you work closely with, such as your Case Manager, a medical or mental health clinician, or Unit Manager directly for the form.
  2. Fill out the form (or have your guardian fill it out) explaining why you need an accommodation and return it to your Case Manager.
    1. If you need assistance to complete the form, request assistance from the Behavioral Health Social Worker who can assist you and then submit the form to your case manager.
    2. For people in custody that have competency issues or are not able to make the request for reasonable accommodations on their own, the Behavioral Health Social Worker is responsible to make a request on the person with disability’s behalf.
  3. Your Case Manager will give the form to the facility ADA Coordinator (Disability Case Manager) for review.
  4. Once the facility ADA Coordinator completes their review, they will send the form to the state Prison ADA Coordinator and the Prison ADA Compliance Specialist for final approval.
  5. The facility ADA Coordinator must notify the offender and/or the offender’s guardian in writing using the IRAR (DC 746b) of the final decision about the request for accommodation. You will receive this decision within 45 working days of the initial request.

How to Appeal a Denial of a Reasonable Accommodation

If your request for a reasonable accommodation is denied, you can appeal the denial by using the Administrative Remedy Procedure form which allows you to file a grievance about the decision. Ask your Case Manager for form DC-410 to start the process. It is important to meet all deadlines in the appeal process.

How to Request Medical Equipment

  1. If you need medical equipment because of your disability, such as a brace to support a joint, glasses, or a hearing aid, etc. ask your Case Manager, Mental Health clinician or Unit Manager for a sick call form.

 

  1. There are special processes and procedures for getting some kinds of medical equipment, including prosthetic limbs, eyeglasses, contact lenses, prescription footwear, and hearing aids. You may have to be examined by a doctor to get this equipment, go through a utilization review process, and there may be limits on how often it can be replaced.

 

  1. If you are issued an item classified as durable medical equipment/medical appliances, it will be the prison’s property until you are released. You will have to sign a Receipt of State Property form, form DC-863, when you receive it. It is an infraction to intentionally or carelessly cause damage to the equipment.

 

  1. When you are released, any medical prosthetic devices/appliances you have been issued belongs to you. Items considered “durable medical equipment” (DME) will remain with N.C. DAC.  The prison’s Social Worker will coordinate obtaining DME needed upon release.  See DAC Comprehensive Health Services Policy TX VII-3.

 

Frequently Asked Questions

  1. I asked for a specific accommodation, but the prison denied that and offered me something else. Is that allowed?

Yes, the prison may offer a different accommodation than the one that you requested. However, that accommodation must be effective to address the disability-related need that you raised in your accommodation request. You are not required to accept an accommodation that does not give you the help that you need. The prison should continue to work with you to find an accommodation that is effective.

  1. Who has to pay for needed accommodations?

The prison or other entity providing the program/service has to pay for necessary accommodations. The person with a disability cannot be charged.

  1. Are there any reasons why the prison could deny my request for a reasonable accommodation?

Yes, there are some exceptions. The prison does not have to provide accommodations that would result in a fundamental alternation of the program/service, create an undue financial or administrative burden, or create a direct threat to the health and safety of others.

  1. Can an inmate file a federal lawsuit to seek to enforce his/her rights under the ADA?

Yes, but there are restrictions. Most importantly, the Prison Litigation Reform Act (PLRA) requires that all inmates exhaust available administrative remedies before filing a federal lawsuit under any federal law, including the ADA.  Failure to use the accommodation request procedure and the grievance procedure available to inmates will result in dismissal of the lawsuit.  To avoid dismissal, inmates who file ADA lawsuits should include in their complaint how and when they exhausted the administrative remedies available to them.

  1. If the prison fails to provide appropriate medical or mental health services, is that a violation of the ADA?

There is no one size fits all answer to this question. The ADA provides that denying equal access to healthcare services available in the prison to people with disabilities is discriminatory. For example, if a prison offers medical care but refuses to offer suboxone or other medications to a person with substance use disabilities-that is an example of unequal access.  However, if a prison does not provide any mental health services at all, failing to provide them to people with disabilities may not be unequal treatment.

  1. I am a person with a disability and am not being assigned to a job or program. What are my rights?

There are many reasons why you may not have received a job or program assignment which may be unrelated to your disability. The ADA protections only apply if the prison is denying you access to programs or services because of your disability and not a different reason that applies to everyone, with or without a disability. If you are unable to participate because of your disability and you cannot be given a reasonable accommodation to enable you to participate, you may be entitled to ADA Assigned or Earned Gain Time sentence credits   If you are being denied access to a job or program for reasons unrelated to your disability (for example, you are waiting on a transfer), you are unlikely to be entitled to this credit.