SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES OF AMERICA
AND THE MACOMB COUNTY PROSECUTOR'S OFFICE
Department of Justice Complaint No. 204-37-350

BACKGROUND

1. This Agreement is entered into between the United States Attorney's Office for the Eastern District of Michigan, a component of the United States Department of Justice ("the United States"), the Michigan Department of Civil Rights (MDCR) and the Macomb County Prosecutor's Office (MCPO) in Mt. Clemens, Michigan (collectively, "the Parties").
2. This matter is based upon complaints received by the United States and MDCR alleging, inter alia, that the Family Support Division of the MCPO refused to provide a sign language interpreter for an individual who is deaf who was asked by the MCPO to provide information and sign a summons and complaint in a child support matter.
3. The ADA applies to the MCPO because it is a "public entity" pursuant to Title II of the ADA, 42 U.S.C. § 12131. Title II of the ADA 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.
4. The United States is authorized to investigate alleged violations of title II of the ADA and its implementing regulations, to attempt to resolve such investigations informally through a settlement agreement, and if unsuccessful, to issue findings, and, where appropriate, to negotiate and secure voluntary compliance agreements. If voluntary compliance cannot be achieved, the Attorney General is authorized under 42 U.S.C. § 12133 to bring a civil action enforcing Title II of the ADA. See 42 U.S.C. § 12133; 28 C.F.R. Part 35, Subpart F.
5. MDCR is responsible for enforcing Michigan Persons with Disabilities Civil Rights Act, MCL § 37.1101 et al. (hereinafter, "MPWDCRA")
6. The MCPO has fully cooperated with the United States' and MDCR's investigations.
7. The United States, MDCR and MCPO agree that it is in the Parties' best interests, and the United States believes that it is in the public interest, to resolve this complaint on mutually agreeable terms without litigation and have therefore agreed to the terms of this Agreement.
8. This Agreement is neither an admission of liability by the MCPO, nor a concession by the United States or MDCR that its claims are not well founded.
9. In consideration of the terms of this Agreement, the United States and MDCR agree to refrain from filing a civil suit in this matter, except as provided in paragraph 26, below.

DEFINITIONS

10. "Auxiliary aids and services" shall have the same meaning as set forth in 28 C.F.R. § 35.104 and, accordingly, include qualified interpreters on-site or through video remote interpreting (VRI) services; notetakers; 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 or hard of hearing.
11. "Disability" will be defined as it is in the ADA, 42 U.S.C. § 12102(2). See also, 28 C.F.R. sec. 35.104. Specifically, people are "deaf" or "hard of hearing" for the purposes of this Agreement if they have a physical impairment that substantially limits their hearing, with or without mitigating measures such as hearing aids or cochlear implants.
12. "Effective communication" means communication with persons who are deaf or hard of hearing 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. See 28 C.F.R. § 35.160.
13. "Members of the public" shall mean persons who are not MCPO personnel and include, but are not limited to, crime victims, witnesses, custodial parents and guardians, non-custodial parents, and others who have a need to meet with MCPO personnel, as well as their deaf or hard of hearing companions, so long as the deaf or hard of hearing companion is the type of person (such as spouse, child, etc.) with whom the MCPO would normally communicate under the circumstances.
14. "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 deaf or hard of hearing individual's language, skills, and education. Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators. See also, 28 C.F.R. § 35.104 and 28 C.F.R. Pt. 35, App. A. "Qualified Interpreter." Under Michigan law, an interpreter must also be certified by the State's Division on Deaf, Deafblind, and Hard of Hearing.
15. "Personnel" means all MCPO employees.

TERMS AND CONDITIONS

16. Nondiscrimination. The MCPO agrees not to engage in any act or practice, directly or through contracting, licensing, or other arrangements, that has the purpose or effect of unlawfully discriminating against any person with a disability in violation of title II of the ADA. Unless otherwise indicated, within thirty (30) days after the effective date of this Agreement the MCPO agrees to implement fully the practices and policies set forth below.
17. Effective Communication Policy. Within thirty (30) days of the effective date of this agreement, the MCPO will submit a draft policy for communicating with people who are deaf or hard of hearing to the United States and MDCR for their review and approval. The policy will include:
    1. Procedures to implement the terms contained in paragraphs 17-24 of this Agreement;
    2. A form that individuals may use to request auxiliary aids or services;
    3. Policies that address both scheduled (when the MCPO has advance notice that an individual who is deaf or hard of hearing is coming to the office and will need an auxiliary aid or service) and unscheduled (when the MCPO has no notice that an auxiliary aid or service will be required) encounters;
    4. A complaint procedure that an individual may follow if he or she believes that auxiliary aids or services were improperly delayed or denied. The complaint procedure shall include the name and contact information for the person to whom complaints should be addressed.
18. Provision of Auxiliary Aids and Services. The MCPO shall promptly furnish, at its own expense, appropriate auxiliary aids and services, including qualified interpreters, to persons who are deaf or hard of hearing when such aids and services are necessary to ensure effective communication, so that they may participate in or benefit from the MCPO's services, programs, or activities on an equal basis with others.
19. Primary Consideration. In determining what type of auxiliary aid or service is necessary, the MCPO agrees to give primary consideration to the expressed preference for a particular auxiliary aid or service by an individual who is deaf or hard of hearing. "Primary consideration" means that Personnel will inquire as to the choice of auxiliary aid or service of the individual and will honor the expressed choice unless the MCPO can demonstrate that another equally effective means of communication is available.
20. Demonstration of Fundamental Alteration or Undue Financial or Administrative Burden. The MCPO is not required to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens. In order to demonstrate that the provision of a particular auxiliary aid or service would fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens, the MCPO must demonstrate the following:
    1. The decision that compliance would result in such alteration or burdens was made the head of the public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity;
    2. The decision must be accompanied by a written statement of the reasons for reaching that conclusion.
    3. If a particular auxiliary aid or service would result in a fundamental alteration or undue burden, the MCPO must take another action that would not result in such an alteration or such burdens but would nevertheless ensure that, to the maximum extent possible, effective communication is achieved.
21. Use of Other Members of the Public to Facilitate Communication.
    1. The MCPO shall not require an individual who is deaf or hard of hearing to bring another member of the public to interpret for him or her.
    2. The MCPO will not rely on an adult accompanying an individual who is deaf or hard of hearing to interpret or facilitate communication except:
       1. In an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available; or
       2. Where the individual who is deaf or hard of hearing specifically requests that the accompanying adult interpret or facilitate communication, the accompanying adult agrees to provide such assistance, and reliance on that adult for such assistance is appropriate under the circumstances.
    3. The MCPO shall not rely on a minor child to interpret or facilitate communication, except in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available.
    4. Notwithstanding the provisions contained in subparagraphs b and c above, once an imminent threat to the safety or welfare to the individual or public has passed, Personnel should revisit the decision of what auxiliary aids and services are appropriate, inquire as to the person's preferences under non-emergency circumstances, and give primary consideration to those preferences.
22. Use of Employees as Sign Language Interpreters or Oral Transliterators. The MCPO will not use its Personnel as sign language interpreters or oral transliterators if the employee or volunteer's presence poses a conflict of interest or raises confidentiality and privacy concerns.
23. Use of Interpreting Service Agencies. The MCPO will establish and maintain a list of qualified interpreters or interpreter agencies to ensure that qualified interpreting services will be available on a priority basis. The MCPO will promptly provide documentation to the United States and MDCR upon reasonable notice demonstrating that such qualified interpreter services are being made available.
24. Recordkeeping. Immediately, as of the effective date of this Agreement, the MCPO will maintain a log of each request for an auxiliary aid or service. The log will include:
    1. the time and date of each request;
    2. the name of the individual who made the request;
    3. the name of the individual for whom the auxiliary aid or service is being requested (if different than the requestor);
    4. the specific auxiliary aid or service request, the time and date of the scheduled appointment (if applicable);
    5. the time and date the auxiliary aid or service was provided;
    6. the type of auxiliary aid or service that was provided; and
    7. if applicable, a summary explanation regarding the denial of any request, or the provision of a different aid or service than was requested.
25. Signs. Within sixty (60) days of the effective date of this Agreement, the MCPO's website and all facilities operated or occupied by the MCPO and in which Personnel are reasonably anticipated to engage with members of the public shall have conspicuously posted in public areas signs advising persons who are deaf or hard of hearing of the availability of appropriate auxiliary aids and services, including qualified interpreters. The signs shall provide as follows:

    To ensure effective communication with individuals who are deaf or hard of hearing, the Macomb County Prosecutors Office will provide, free of charge, auxiliary aids such as qualified sign language oral interpreters.

    Please ask for assistance by contacting [name and full contact information of point of contact for interpreter services].

    The posted signs will include a symbol to indicate the availability of sign language interpreters such as:

    

26. Training: Within thirty (30) days of the United States' and MDCR's approval of the effective communication policy developed pursuant to paragraph 16 of this Agreement, and at least once annually throughout the term of this Agreement, the MCPO will train all Personnel who in the ordinary course and/or execution of their duties commonly have contact with members of the public as to effective communication with persons who are deaf or hard of hearing. The training will be sufficiently detailed to enable Personnel to effectively implement all provisions of this Agreement, and all additional policies and procedures developed pursuant to this Agreement. The MCPO will ensure that all new Personnel who will have contact with members of the public will receive the training as a component of pre-service training.
27. Report: Within one hundred twenty (120) days of the effective date of this Agreement, MCPO shall submit a written report to counsel for the United States and MDCR confirming its compliance with paragraphs 16-23, above.
28. Notification Requirement: During the term of the Agreement, the MCPO will immediately notify the United States and MDCR if any individual submits a complaint, charge, grievance, or file a lawsuit, alleging that the MCPO failed to provide any auxiliary aids or services to any individual with a disability. Such notification must be provided in writing within fifteen (15) days of receipt and will include, at a minimum, the nature of the allegation, the name of the individual making the allegation, and any documentation possessed by the MCPO or any of its agents or representatives relevant to the allegation.

    All information provided pursuant to the reporting requirements under this Agreement should be provided to the United States via First Class mail or overnight courier service to: U.S. Attorney's Office for the Eastern District of Michigan, Attn: Civil Rights Unit, 211 W. Fort Street, Ste. 2001, Detroit, Michigan 48226, and to MDCR to: Office of Legal Affairs, Michigan Department of Civil Rights, Cadillac Place, Ste. 3-600, 3054 West Grand Boulevard, Detroit, Michigan 48933.

IMPLEMENTATION AND ENFORCEMENT

26. Review and Enforcement. The United States may review compliance with this Agreement or title II of the ADA at any time. If the United States believes that this Agreement or any portion of it has been violated, it will notify the MCPO in writing and attempt to resolve the issue or issues in good faith. If the United States is unable to reach a satisfactory resolution of the issue or issues raised within thirty (30) days of the date it provides notice to the MCPO, it may institute a civil action in federal district court to enforce the terms of this Agreement or title II of the ADA and may, in such action, seek any relief available under law.
27. Lack of Waiver. Failure by the United States to initiate any provision of this Agreement is not a waiver of its right to enforce other provisions or deadlines of the Agreement.
28. Authorization to Bind. A signatory to this document in a representative capacity for the Parties represents that he or she is authorized to bind the Parties to this Agreement.
29. Term of Agreement. The effective date of this Agreement is the date of the last signature below. This Agreement will remain in effect for three (3) years from the effective date.
30. 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.
31. Entire Agreement. This Settlement Agreement constitutes the entire agreement between the MCPO, MDCR and the United States on the matter raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written Agreement, including its attachments, will be enforceable. This Agreement does not purport to remedy any other potential violations of the ADA or state or federal law, and does not affect the continuing responsibility of the MCPO to comply with all aspects of the ADA and the MPWDCRA.
32. Third Party Rights. Neither this Agreement, nor any of its terms and/or conditions shall confer, and shall not be construed as conferring, a private cause of action or right of enforcement upon any third party, under any circumstances whatsoever.
33. Public Document. A copy of this Agreement will be made available to the public on www.ADA.gov.