U.S.

Department of Justice
Civil Rights Division
Disability Rights Section - NYA
950 Pennsylvania Ave, NW
Washington, DC 20530

June 20, 2016

BY E-MAIL AND REGULAR MAIL
Andrea Barraclough
Chief Deputy Attorney General, Public Safety Division
State of Nevada, Office of the Attorney General
100 North Carson Street
Carson City, Nevada 89701
abarraclough@ag.nv.gov
Re:

U.S. Department of Justice Review of the Nevada Department of

Corrections Compliance with Title II of the Americans with Disabilities Act:
Findings of Fact and Conclusions of Law, DJ Nos. 204-46-175, 204-46-176

Dear Ms. Barraclough:

The United States Department of Justice (the Department) has completed its review of
the Nevada Department of Corrections (NDOC) policies, practices, and procedures for
housing and employing inmates with disabilities. We initiated this compliance review under
Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. 12131-12134, and its
implementing regulation, 28 C.F.R. pt. 35, after receiving complaints from inmates who allege
that the NDOC places inmates with human immunodeficiency virus (HIV) in segregated
housing and denies them equal opportunities to earn work credits to reduce the lengths of their
sentences. Over the course of our review, we also received complaints that the NDOC denies
equal housing and employment opportunities to inmates with mobility disabilities or certain
medical or mental health conditions.
Following our review, we find that the NDOC has violated Title II of the ADA by
discriminating against inmates with disabilities in the following manner:
1. Segregating inmates with HIV pursuant to the NDOCs House Alike / House Alone
policy, which directs NDOC facilities not to house inmates with HIV in the same cells as
inmates who do not have HIV;
2. Denying inmates with HIV equal employment opportunities through which they could
earn credits to reduce the lengths of their sentences; and
3. Denying inmates with disabilities, including those with mobility disabilities, HIV, or
certain other medical or mental health conditions, equal opportunities to benefit from the
services, programs, and activities offered by the NDOCs conservation camps and

transitional-housing facilitiesincluding the opportunity to earn substantial credits to

reduce the lengths of their sentences.
The latter two practices deprive inmates with disabilities of opportunities to engage in productive
activities and to reduce the lengths of their sentences, while the first practiceimplementation of
the House Alike / House Alone policystigmatizes inmates with HIV and indiscriminately
discloses their confidential HIV status to NDOC employees and inmates. Leading public health
and correctional authorities, such as the Centers for Disease Control and Prevention and the
National Commission on Correctional Health Care, oppose the routine segregation of inmates
with HIV as medically unnecessary.
Set forth in greater detail below are the Departments findings of fact and conclusions of
law, as well as the minimum steps the NDOC must take to remedy the violations identified
herein.
I.

THE DEPARTMENTS COMPLIANCE REVIEW

The Department initiated this review of the NDOCs compliance with Title II of the ADA
after receiving complaints from two inmates at High Desert State Prison (HDSP), a mediumcustody prison in Indian Springs, Nevada. The inmates alleged that the NDOC housed them
separately because they have HIV. One of the inmates further alleged that because he has HIV,
the NDOC: (1) denied him work opportunities at HDSP; and (2) refused to transfer him to a
minimum-custody conservation camp, even after it had determined that he was eligible for
reclassification from medium to minimum custody. According to the inmate, these denials
deprived him of the opportunity to earn work credits to reduce the length of his sentence.
The Departments review included visits to HDSP and Casa Grande Transitional
Housing, a transitional-housing facility in Las Vegas, Nevada; interviews with over 30 inmates
with disabilities at various institutions; interviews with over 20 NDOC employees at various
institutions and levels of seniority; and a review of documents produced by inmates and the
NDOC.
II.

STATUTORY AND REGULATORY BACKGROUND

Title II prohibits the NDOC from: (i) discriminating against inmates with disabilities; (ii)
excluding inmates with disabilities from participating in its services, programs, or activities; and
(iii) denying inmates with disabilities the benefits of its services, programs, or activities. 42
U.S.C. 12132; see 28 C.F.R. 35.130(a). Supplying more detail to these broad prohibitions,
Title IIs implementing regulation provides that the NDOC must:

Not provide inmates with disabilities opportunities that are unequal to, or different or
separate from, those afforded to inmates who do not have disabilities, 28 C.F.R.
35.130(b)(1);

Not deny inmates with disabilities the opportunity to participate in or benefit from the
NDOCs aids, benefits, services, or programs, id.;

Reasonably modify its policies, practices, or procedures where necessary to avoid

discrimination on the basis of disability, unless the NDOC can demonstrate that making
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modifications would fundamentally alter the nature of its services, programs, or activities,
id. 35.130(b)(7);

Not impose or apply eligibility criteria that screen out or tend to screen out inmates with
disabilities from fully and equally enjoying the NDOCs services, programs, or activities,
unless the NDOC can show that such criteria are necessary for its provision of those
services, programs, or activities, id. 35.130(b)(8);

Not place inmates with disabilities in facilities that do not offer the same programs as the
facilities where they otherwise would be housed, id. 35.152(b)(2)(iii); and

Administer its services, programs, and activitiesincluding its housing of inmatesin

the most integrated setting appropriate to the needs of inmates with disabilities, id.
35.130(d), 35.152(b)(2).
III.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The NDOC violates the above statutory and regulatory requirements by: (1) housing
inmates with HIV in segregated cells; (2) restricting the employment opportunities of inmates
with HIV; and (3) limiting the opportunities of inmates with disabilities to benefit from the
services, programs, and activities offered by the NDOCs conservation camps and transitionalhousing facilities.
A

The NDOCs housing policy segregates and stigmatizes inmates with HIV.

Under NDOC Administrative Regulation (AR) 610.03(3), institutions may house

inmates with HIV in double-occupancy cells only with other inmates who have HIV. Thus, to
the extent institutions use cells rather than dormitories (i.e., open rooms with bunk beds) to house
inmates, they must house inmates with HIV either with other inmates with HIV or alone. NDOC
employees accordingly refer to AR 610.03(3) as the House Alike / House Alone policy, or the
HAHA policy.
Public health and correctional authorities agree that this sort of routine segregation of
inmates with HIV is medically unnecessary. HIV cannot survive long outside of the body, so it
cannot be transmitted through ordinary daily activities such as sharing toilets; sharing dishes or
drinking glasses; shaking hands; hugging; touching; sneezing; coughing; or exposure to the
saliva, tears, or sweat of a person with HIV.1 Given the absence of any health justification for
routinely segregating inmates with HIV, and the risk that segregation will expose inmates
confidential HIV status, the CDC and the National Commission on Correctional Health Care
(NCCHC) oppose such segregation.2 Likewise, the Bureau of Prisons prohibits federal
1 Centers for Disease Control and Prevention (CDC), HIV Transmission (Dec. 14, 2015),
http://www.cdc.gov/hiv/basics/transmission.html.
2 See CDC, HIV Testing Implementation Guidance for Correctional Settings 26 (Jan. 2009),
http://www.cdc.gov/hiv/pdf/risk_correctional_settings_guidelines.pdf (emphasizing importance
of maintaining confidentiality of medical information and discouraging segregated housing of
inmates with HIV); NCCHC, Administrative Management of HIV in Correctional Institutions
(Oct. 19, 2014), http://www.ncchc.org/administrative-management-of-hiv-in-correctionalinstitutions (NCCHC opposes routine segregated housing for [] inmates [with HIV]. . . . [Such
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correctional facilities from establishing special or separate housing units . . . for HIV-positive
inmates. 28 C.F.R. 549.13(c).
Because only inmates with HIV are subject to the NDOCs HAHA policy, an inmates
HIV status is effectively disclosed to NDOC inmates and employees when he or she is housed in
a cell with an inmate who may be known to others to have HIV, or when he or she is housed in a
cell alone (an unusual phenomenon for general-population inmates at NDOC prisons that use
double-occupancy cells). Indeed, the NDOC has housed some inmates with HIV in cells by
themselves for days or weeks at a time pending the arrival of other inmates with HIVa practice
that has aroused inmate suspicions that inmates who are housed alone have HIV.
As a result of the NDOCs unnecessary segregation policy, the NDOC has exposed
inmates with HIV to potential harm from inmates who may hold unfounded fears of, or
prejudices against, those with HIV. Inmates have harassed or threatened those whom they
believe have HIV. And as described below, NDOC employees have subjected inmates with HIV
to unequal treatment based on their HIV status.
A. The NDOC denies inmates with HIV equal employment opportunities.
Though the NDOC offers inmates employment opportunities for which they can earn
work credits that may be applied to reduce the lengths of their sentences, it denies inmates
with HIV equal opportunities to obtain work assignments. Consistent with CDC guidance that
HIV cannot be transmitted by consuming food handled by an individual with HIV,3 NDOC
policy expressly provides that inmates with HIV may work in the culinary (i.e., kitchen). But
some NDOC employees either are unaware of, or have knowingly disregarded, this policy.
Some NDOC employees continue to advise inmates with HIV that they cannot work in the
culinary, and someincluding caseworkers and culinary supervisorshave terminated inmates
from employment in the culinary upon discovering that they have HIV. Given the limited supply
of inmate jobs within the NDOC, the exclusion of inmates with HIV from culinary work
assignments has further narrowed the already-limited number of available employment
opportunities. This has deprived inmates with HIV of an equal opportunity to earn work credits
thus potentially compelling them to serve longer sentences than inmates who do not have HIV.
B. The NDOC denies inmates with disabilities equal opportunities to benefit from the
services, programs, and activities offered by its conservation camps and
transitional-housing facilities.
The NDOC houses inmates whom it has classified to its lowest custody levels
minimum and community trusteeat conservation camps and transitional-housing
facilities, both of which are less secure than NDOC prisons. But the NDOC generally limits or
entirely excludes certain categories of inmates from placement at those facilities, including: (1)
inmates with mobility disabilities; (2) inmates with medical conditions that the NDOC deems
chronic, such as HIV, hepatitis B, hepatitis C, diabetes, asthma, and hypertension; and (3)
inmates who take medications that the NDOC has classified as non-keep-on-person

inmates] should not be medically isolated solely because of their HIV status).
3 CDC, HIV Transmission (Dec. 14, 2015), http://www.cdc.gov/hiv/basics/
transmission.html.
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medications, such as anticoagulants, muscle relaxants, or medications for treatment of mental

health conditions, HIV, tuberculosis, psoriasis, or rheumatoid arthritis.
By denying inmates with disabilities equal opportunities to obtain placement at its lowercustody (and thus lower-security) facilities, the NDOC confines them in more restrictive settings
than they otherwise would be housed. It also deprives them of a vast array of employment
opportunities: Unlike prisons, which offer only a limited number of inmate jobs, conservation
camps and transitional-housing facilities have sufficient jobs for all of their inmates and require
all of their inmates to work. And because inmates at conservation camps and transitionalhousing facilities earn twice as many work credits as those at medium-custody prisons, the
NDOCs refusal to transfer inmates with disabilities to these lower-custody facilities effectively
compels them to serve longer sentences than inmates who do not have disabilities.
1. The NDOC excludes inmates with disabilities from classification to its lowest
custody level and from housing at its transitional-housing facilities.
The NDOCs two transitional-housing facilities house inmates at the NDOCs lowest
custody level: community trustee. Community-trustee inmates are all within eighteen months of
probable release from NDOC custody and spend their days working (or seeking work) in
positions of their choosing in the local communities in which the transitional-housing facilities
are located. These inmates earn twenty days of work credits per month, rather than the
maximum of ten days per month available to inmates at medium-custody prisons.
The NDOC withholds community-trustee classification from inmates with disabilities
and bars their placement at transitional-housing facilities, even if those inmates are otherwise
eligible for such classification. In doing so, the NDOC deprives them of the benefits it affords to
other inmates to, inter alia, earn up to twenty days of work credits per month, earn money by
working in the community, and gradually reintegrate into society by interacting with individuals
outside the NDOC system.
2. The NDOC restricts the opportunities of inmates with disabilities to obtain placement
at its conservation camps.
The NDOCs nine conservation camps house inmates whom the NDOC has classified to
its next lowest custody level: minimum. Conservation-camp inmates work under the supervision
of NDOC employees, often performing such tasks as firefighting, roadside litter removal,
landscape beautification, and other projects designed to assist local communities. Like inmates
at transitional-housing facilities, conservation-camp inmates earn up to twenty days of work
credits per month, rather than the ten days per month that employed inmates at medium-custody
prisons are eligible to earn.
The NDOC restricts male inmates with disabilities, and entirely excludes female inmates
with disabilities, from obtaining placement at its conservation camps. Granting its employees
broad authority to exclude inmates with disabilities, NDOC Administrative Regulation 521.04(3)
(C)(2) provides that [m]edical, dental or mental health concerns are discretionary factors that
may justify excluding inmates from minimum-custody classification. Thus, even though the
NDOCs only camp for women has part-time medical staff, the camp generally does not accept
inmates with chronic medical conditions, mental health conditions, or other disabilities. And
while two of the NDOCs eight camps for male inmatesThree Lakes Valley Conservation
Camp (TLVCC) and Stewart Conservation Camp (SCC)nominally house inmates with
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disabilities, both accept only a limited number of such inmates, and during only approximately
five months each year. TLVCC and SCC maintain such long wait lists that inmates with
disabilities must wait monthsor even a year or morefor bed space to become available in
one of the few camp slots allotted for them. These inmates remain at the medium-custody level,
even though the NDOC has determined that they are eligible for classification at the minimumcustody level.
Without providing for appropriate alternatives, the NDOC denies inmates with
disabilities equal opportunities to benefit from the services, programs, and activities offered by
its minimum-custody camps. Many inmates with disabilities who are otherwise eligible for
minimum-custody classification must remain in the more restrictive settings of medium-custody
prisons, as the NDOC transfers their non-disabled counterparts to minimum-custody camps. And
those same inmates with disabilities, if fortunate enough to obtain employment at the NDOCs
medium-custody prisons, earn a maximum of ten days of work credits per month, while their
camp counterparts earn twice as many work credits per month.
By virtue of having a mental health condition, mobility disability, HIV, hepatitis B,
hepatitis C, diabetes, asthma, or any one of the various other medical conditions that the NDOC
deems chronic, many inmates with disabilities serve longer sentences, in more restrictive
settings, than inmates who do not have disabilities.
IV.

REMEDIATION

To remedy the above deficiencies and protect the rights of inmates with disabilities, the
NDOC must implement, at minimum, the remedial measures set forth below:
1. Abolish AR 610.03(3) and adopt a housing policy that does not isolate or segregate
inmates with HIV on the basis of their HIV status.
2. Appropriately train and educate all employees and inmates about HIV and the viruss
methods of transmission.
3. Ensure that all employees are trained and educated about, and follow, NDOC
AR 610.03(2), which provides that inmates with HIV may be classified to work
assignments in the canteen, culinary, food services, infirmary, or allied health services
area.
4. Reasonably modify policies, practices, and procedures to ensure that: (1) inmates with
disabilities have the same opportunities to obtain work assignments that the NDOC
provides to inmates who do not have disabilities; and (2) the NDOC makes reasonable
modifications in work assignments, terms, and conditions to accommodate inmates
disabilities.
5. Abolish AR 521.04(3)(C)(2) and classify inmates to custody levels without regard to their
mental health conditions, medical conditions, mobility impairments, or other disabilities.
6. House inmates in accordance with the custody levels for which they are eligible.
7. Reasonably modify policies, practices, and procedures to ensure that inmates with
disabilities have equal opportunities to participate in and benefit from programs, services,
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activities, aids, and benefits (e.g., the opportunity to earn work credits) that the NDOC
makes available to other inmates at each of the NDOCs custody levels.
8. Institute a non-discrimination policy that reflects the requirements of Title II and its
implementing regulation.
9. Train and educate all employees about the requirements of Title II, its implementing
regulation, and the NDOCs non-discrimination policy for inmates with disabilities.
10. Designate at least one employee to coordinate all of the NDOCs efforts to comply with
and carry out the NDOCs responsibilities under Title II, and at least one employee at
each NDOC facility who will be responsible for coordinating that facilitys efforts to
comply with and carry out its responsibilities under Title II. Each coordinator will, inter
alia, coordinate requests from inmates with disabilities for reasonable modifications and
auxiliary aids and services.
11. Pay compensatory damages to aggrieved persons for injuries caused by the NDOCs
failure to comply with Title II.
V.

CONCLUSION

We hope to work cooperatively with you to resolve the Departments findings about the
NDOCs discriminatory treatment of inmates with disabilities. Should we fail to agree on an
appropriate resolution of this matter, the Attorney General may initiate a lawsuit pursuant to Title
II. See 42 U.S.C. 2000d-1, 12133-34. Please contact Pearline Hong, Trial Attorney, at (202)
616-2927 by July 11, 2016 if you are willing to resolve this matter in a manner that will bring the
NDOC into full compliance with Title II.4
Sincerely,

Rebecca B. Bond
Chief
Disability Rights Section

4
This Letter of Findings is a public document and will be posted on the Civil Rights Divisions
website at www.ada.gov. We will share a copy of this letter with complainants and other affected
individuals. Pursuant to 28 C.F.R. 35.172(d), a complainant may file a private suit at any time
pursuant to Section 203 of the ADA, 42 U.S.C. 12133.
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