ATTACHMENT C
SOUTH DAKOTA DEPARTMENT OF CORRECTIONS
EFFECTIVE COMMUNICATION WITH INMATES WHO ARE DEAF, HARD OF HEARING, OR HAVE A SPEECH DISABILITY

INTRODUCTION

Paragraph IV C 2 of the Agreement, the following sets forth the substantive requirements that South Dakota Department of Corrections must incorporate into a policy to provide effective communication with inmates who are deaf, hard of hearing, or have a speech disability.

DEFINITIONS

1. "Auxiliary aids and services" has the meaning as set forth in 28 C.F.R. § 35.104 and, accordingly, includes 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 videobased 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; acquisition or modification of equipment or devices; and other similar services and actions.
2. "Disability" is defined as it is in the ADA, 42 U.S.C. § 12102(2). See also 28 C.F.R. § 35.104. A person is "deaf" or "hard of hearing" or has a "speech disability" for the purposes of this Agreement if he or she has a physical impairment that substantially limits hearing or speech without regard to mitigating measures such as hearing aids or cochlear implants.
3. "Effective communication" means communication with persons who are deaf, hard of hearing, or who have a speech disability 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.
4. "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 language, skills, and education of the individual who is deaf or hard of hearing. Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cuedlanguage transliterators. See also 28 C.F.R. § 35.104 and 28 C.F.R. Pt. 35, App. A (Qualified Interpreter).
5. "Personnel"means all employees, agents, or contractors, who are wholly or partially responsible for the custody and care of inmates confined at SDSP or MDSP.
6. "Text Telephone/Teletype Terminal/Teletypewriter" (TTY) means a device that allows for individuals with hearing or speech disabilities to use a telephone to type and send text messages.
7. "Telecommunications Relay Service" (TRS) means an operator service that allows people with hearing or speech disabilities to place calls to standard telephone users via keyboard or assistive device.
8. "Videophone" means a telephone with a camera and screen for visual, real-time communication.
9. "Video Relay Service" (VRS) is a telephone service using interpreters connected to callers by video hook-up and is designed to provide persons who are deaf and use American Sign Language with telephone services that are functionally equivalent to those provided to users who are hearing.
10. "Video Remote Interpreting" (VRI) means an interpreting service that uses video conference technology over dedicated lines or wireless technology offering high-speed, widebandwidth video connection that delivers high-quality video images as provided in 28 C.F.R. § 35.160(d).

REQUIREMENTS FOR EFFECTIVE COMMUNICATION

11. Provision of Auxiliary Aids and Services. South Dakota Department of Corrections will ensure that appropriate auxiliary aids and services, including qualified interpreters, are made available to persons who are deaf, hard of hearing, or who have a speech disability when such aids and services are necessary to ensure effective communication, so that otherwise qualified inmates may participate in or benefit from South Dakota Department of Corrections's services, programs, or activities on an equal basis with others. Determination of an appropriate auxiliary aid or service, including whether a qualified interpreter is required depends on the method of communication normally used by the inmate, with primary consideration to be given to the expressed choice of the inmate.
    1. South Dakota Department of Corrections must provide access to Telecommunications Relay Service, South Dakota Relay Service, or Video Relay Service as needed to connect persons with speech or hearing disabilities with others.
    2. South Dakota Department of Corrections must provide a TTY and a telephone with volume control on each unit housing an inmate with a hearing or speech disability. South Dakota Department of Corrections must also provide a videophone at a location convenient to inmates who are deaf.
    3. If any inmate who is deaf, hard of hearing, or who has a speech disability prefers a different method of communication, such as a captioned telephone or computer, South Dakota Department of Corrections will make reasonable efforts to provide the communication device requested.
12. Qualified Interpreters for South Dakota Department of Corrections Programs. The following non-exhaustive list provides examples of activities, services, programs or circumstances where South Dakota Department of Corrections must provide appropriate auxiliary aids and services, including qualified interpreters, to ensure effective communication with South Dakota Department of Corrections inmates who are deaf, hard of hearing, or who have a speech disability.
    1. Critical communication, complex information, lengthy exchanges, or anything involving legal due process;
    2. Intake;
    3. Orientation;
    4. Classification;
    5. Medical care and health programs such as physicals and medical screenings and treatment, dental, visual, and/or mental health examinations or treatment, and drug and alcohol recovery services;
    6. Counseling or psychological services;
    7. Educational and vocational programming;
    8. Due process hearings, including disciplinary hearings, and hearings in which the inmate is a witness;
    9. Classification review interviews;
    10. Grievance interviews or processes;
    11. Religious services;
    12. Non-criminal investigations conducted by South Dakota Department of Corrections; and
    13. Pre-release instructions.

    In the event a qualified interpreter is necessary to provide effective communication, South Dakota Department of Corrections must provide a qualified interpreter in a timely manner consistent with the requirements set out in paragraph 15. The activity, service, or program may be delayed until the interpreter is made available, or the inmate may elect to delay his or her participation in the activity, service, or program until the interpreter is available, except in situations or circumstances involving an emergency as described elsewhere in this Attachment or in the policies and procedures implemented in accordance herewith.

13. On-Site Interpreter Services. On-site interpreter services are required when the use of VRI is not feasible or does not result in effective communication, such as where the inmate is unable to clearly see 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.
14. Use of Interpreting Service Agencies. When an interpreter is required to ensure effective communication, the interpreter provided must be qualified, as defined in paragraph 4 and 28 C.F.R. § 35.104.
    1. South Dakota Department of Corrections will contract with one or more interpreter service agencies to ensure that qualified interpreting services, including on-site and VRI as necessary to ensure effective communication consistent with the time frames in paragraph 15, are available, twenty-four hours per day, and seven (7) days a week. Alternatively, South Dakota Department of Corrections may make other appropriate arrangements such as contracting directly with or hiring qualified interpreters on a fee for service basis. Documentation of interpreter services contracts will be provided in the compliance reports required in this Agreement, Section VIII (A) "Monitoring and Reporting Requirements."
    2. South Dakota Department of Corrections will document all oral/written requests it receives for qualified interpreters and the action taken in response to each request, including denials of services. 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 in the compliance reports required in this Agreement, Section VIII (A) "Monitoring and Reporting Requirements."
    3. South Dakota Department of Corrections must request a qualified interpreter from the interpreting service for planned events, such as those listed in paragraph 12, within twenty-four (24) hours from when the event is planned, or within one (1) hour of an inmate request.
15. Time for Interpreter Response. Unless an interpreter is scheduled in advance, for example, for an upcoming disciplinary hearing, the qualified interpreter must be provided at the earliest reasonable time 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, but that time must not exceed eight (8) hours from the inmate's initial request until the interpreter is on-site, or two (2) hours from the inmate's initial request for VRI, except in medical emergencies as described in paragraph 21. South Dakota Department of Corrections must use the most effective means of communicating with the inmate readily available until such time as a qualified interpreter is present. South Dakota Department of Corrections will inform the inmate of the current status of efforts being taken to secure a qualified interpreter on his or her behalf within thirty (30) minutes of making the request to the interpreter service. South Dakota Department of Corrections will provide additional updates to the inmate as necessary until an interpreter is secured. Notification of efforts to secure a qualified interpreter does not lessen South Dakota Department of Corrections's obligation to provide qualified interpreters in a timely manner.
16. Use of Other Inmates to Facilitate Communication. South Dakota Department of Corrections will not require an individual who is deaf, hard of hearing, or who has a speech disability to bring another inmate to interpret for him or her.
17. Use of Employees, Volunteers, or Inmates as Qualified Sign Language Interpreters or Oral Transliterators. South Dakota Department of Corrections will not use its personnel as qualified sign language interpreters or oral transliterators if the employee's or volunteer's presence poses a conflict of interest or raises confidentiality or privacy concerns.
18. Ongoing Need for Communication Assessments and Consultation. In addition to the initial communication assessment done at the time the need for auxiliary aids and services is first identified, South Dakota Department of Corrections will reassess communication effectiveness every six (6) months, or more frequently as necessary, and will consult with the inmate on a continuing basis to assess what measures are required to ensure effective communication.
19. Visual Alerts. South Dakota Department of Corrections will provide an effective visual or other notification system so that inmates who are deaf or hard of hearing do not miss announcements, alarms, or other auditory information, including times for meals, recreation, education, work assignments, and other events.
20. Reasonable Modification of Handcuffing Policies. South Dakota Department of Corrections will immediately ensure that when inmates who are deaf or hard of hearing are cuffed or restrained, they are cuffed or restrained in a manner that permits effective communication (e.g., cuffing inmates in the front so they can sign; having one hand free in order to write) unless legitimate security concerns dictate otherwise.
21. Medical Emergencies. If an inmate who is deaf, hard of hearing, or who has a speech disability expresses or demonstrates a medical condition or need that cannot wait for the assistance of a qualified interpreter to facilitate communication, or South Dakota Department of Corrections suspects that there is a medical need or condition requiring immediate treatment or other immediate response, South Dakota Department of Corrections will not delay in providing whatever medical care, treatment, evaluation, or service would be provided to other persons under similar circumstance. In such event, South Dakota Department of Corrections will use the most effective means of communicating with the inmate readily available but must provide a qualified interpreter as quickly as possible, but no later than within two (2) hours.
22. Inmate Handbook. Within thirty (30) days of the effective date of the Agreement, South Dakota Department of Corrections will effectively communicate the contents of the Inmate Handbook and similar publications to all inmates who are deaf or hard of hearing, including those for whom written language is not an effective means of communication. South Dakota Department of Corrections may choose to meet this obligation by providing a video of a qualified interpreter signing the contents of the Inmate Handbook, along with appropriate technology for viewing, or by providing a qualified interpreter who will read and interpret the contents of the Inmate Handbook to the inmate who is deaf or hard of hearing. South Dakota Department of Corrections 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 are deaf, hard of hearing, or who have a speech disability, South Dakota Department of Corrections will provide appropriate auxiliary aids and services free of charge, such as: 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 South Dakota Department of Corrections's programs.

23. Privacy of Communications. South Dakota Department of Corrections will take reasonable measures to ensure that the privacy of telephone calls by inmates using a TTY or a telephone with volume control is equal to that of other inmates' telephone calls.
24. Television Programming. Inmates who are deaf or hard of hearing will have equivalent access to captioned television programming as other inmates in the same classification level have to television.
25. Hearing Aid and Cochlear Processor Batteries. South Dakota Department of Corrections must supply appropriate types of hearing aid and cochlear processor replacement batteries as needed by deaf and hard of hearing inmates utilizing such hearing devices at no cost to the inmate. Replacement batteries will be provided to those requesting them and installed as soon as possible, but no later than 24 hours after such request, including weekends and holidays.
26. Repair of Hearing Aids and Other Such Personal Devices. South Dakota Department of Corrections will send inmates' hearing aids, cochlear processors, and other such devices to appropriate repair companies as soon as possible, but no later than 24 hours (excluding weekends and holidays) following a request for the repair of such device. South Dakota Department of Corrections will inform the inmate when the device was sent for repair and when it is expected to be returned by the repair company. South Dakota Department of Corrections will provide the inmate with written documentation of all such repairs, including detailed information regarding the vendor used, the date of the repair, and the specific repairs performed. South Dakota Department of Corrections will take appropriate steps to ensure effective communication with the inmate during any period in which the inmate is without his hearing aid, cochlear processor, or other such device.
27. Identification. South Dakota Department of Corrections will inform all personnel having contact with an inmate who is deaf, hard of hearing, or who has a speech disability of the person's disability and his or her preferred auxiliary aids and services so that effective communication with the person will be achieved. A person's identity as someone needing appropriate auxiliary aids and services for effective communication will not be treated as confidential medical information.