t. 12/23/94 MAF:MM:RJM:jfb CERTIFIED MAIL - RETURN RECEIPT REQUESTED DEC 23 1994 The Honorable Timothy F.

Hagan President Cuyahoga County Commissioners County Administration Building 1219 Ontario Street Room 453 Cleveland, Ohio 44113 Re: Complaint Numbers: XX XX XX Dear President Hagan: This letter constitutes the Department of Justice's (Department) Letter of Findings with respect to complaints received by this office alleging violations of Title II of the Americans with Disabilities Act of 1990 (ADA) by the Cuyahoga County Court of Common Pleas, Domestic Relations Division (Court). Title II, 42 U.S.C. ​ 12131-12134, prohibits discrimination against qualified individuals with disabilities on the basis of disability in the services, programs, or activities of State and local governments. The complainant, who is hard of hearing and who is a defendant in two domestic relations proceedings, alleged that the Court discriminated against him on the basis of his disability by failing to take the appropriate steps to ensure that the communication with him during the proceedings was as effective as communication with others and by failing to furnish appropriate auxiliary aids and services, as required by the Department's regulations implementing Title II, at 28 C.F.R. ​ 35.160(a) and (b), respectively. As an instrumentality of a State or local government, the Court is a public entity subject to the requirements of Title II and its implementing regulation. 28 C.F.R. 35-104. The

Coordination and Review Section (CRS) of the Civil Rights Division is responsible for investigation of complaints alleging violations of Title II and its implementing regulation in all programs and services of State and local governments relating to the administration of justice, including courts. 28 C.F.R. ​ 35.190(b)(6). Records CRS Chrono MAF Morrow udd.mather. XX .lof 01-00241 -2CRS conducted an investigation of the complainant's allegations and determined that the Court failed to take the steps necessary to comply with the requirements at 28 C.F.R. ​ 35.160(a) and (b). The Court has, however, agreed to take corrective actions, which, when fully implemented, will resolve the areas of noncompliance. Based on the Court's assurances, CRS is issuing this compliance Letter of Findings. The following is a summary of the findings of fact, applicable legal standards, and determinations on the issues in these complaints. FACTS The complainant is the defendant in two domestic relations actions before the Court. The first action involves motions and cross-motions for his daughter's custody and visitation (custody/visitation case). The second case involves a domestic violence complaint filed against the complainant (domestic violence case). At the beginning of the custody/visitation proceedings on August 11, 1992, the complainants counsel informed the Court that the complainant had trouble hearing certain tones and words. In fact, the complainant subsequently did have difficulty understanding the proceedings because of his hearing disability and, after a few days of hearings, he attempted to resolve the difficulties by contacting outside agencies for assistance. One of those contacts, an audiologist at the Cleveland Hearing and Speech Center, advised the complainant of the requirements of the ADA pertaining to the provision of auxiliary aids and services. The audiologist also told the complainant that she would call the County's ADA Coordinator to discuss the provision of

auxiliary aids and services for him. At this time, the Court did not have any written policy on the provision of auxiliary aids and services (other than the appointment of interpreters). On August 20, 1992 the ADA Coordinator informed the referee that an allegation of discrimination based on the complainant's disability had been raised. The referee then recessed the case until the next morning so that he could consult with the trial judge as to how to address the ADA concerns. The next morning, August 21, 1994, the referee announced that the proceedings would not go forward until the issue raised by complainant was resolved. At the trial judge's instruction, the referee ordered that the complainant undergo an audiological examination, at his own expense, to be conducted at the Cleveland Hearing and Speech Center that day. The referee also set a special hearing on the results of the examination for August 25, 1992. 01-00242 -3At the end of the day, August 21, 1992, the referee called the audiologist who confirmed that the complainant had a moderate to severe hearing loss and informed the referee that an auxiliary aid or service would be necessary to provide effective communication with the complainant during the proceedings. On August 24, 1992, while the custody/visitation proceedings were stayed, the mother filed a petition on domestic violence with the Court, requesting an ex parte temporary protection order against the complainant. The following morning, with the complainant and his counsel in attendance but not participating, the trial judge held an ex parte hearing on the domestic violence petition and issued an ex parte order, the effect of which was to remove the daughter from the complainant's home and to prohibit him from having any contact with her. The judge ordered a copy of the transcript to be given to the complainants counsel, at the Court's expense, in preparation for a full hearing on the domestic violence petition. The judge also rescheduled the hearing on the complainant's audiological examination. At the August 25, 1992, hearing on the complainant's audiological examination, the parties stipulated that the complainant had a hearing impairment that required "speech augmentation equipment" in order to ensure that he could hear the

proceedings. Although the audiologist recommended using an FM system with a "pass around" microphone, the referee decided to use an FM amplification system that used a centrally located microphone, believing that the "pass around" microphone recommended by the audiologist would not be convenient or might disrupt the proceedings. The parties stipulated that the Court would see if the proposed system would work and, if not, a different system would be considered and implemented. On August 27, 1992, the Court, on its own motion, declared a mistrial in the custody/visitation case, alleging that the complainant "has alleged possible prejudice as a result of his hearing impairment." Also, the trial judge voluntarily removed himself from the case "to preclude any impropriety, or the appearance of a conflict of interest" on his part. From September 4, 1992, to October 23, 1992, the new referee held hearings on the domestic violence petition. During these hearings, the FM system with a centrally located microphone was used. (The complainant used a headset to hear the proceedings.) Hearings on the custody/visitation case were set to resume on October 26, 1992. On October 23, 1992, the complainant informed the referee that he was experiencing an ear infection, as a result of the extended use of the headset provided by the court, and that the system was no longer effective. He moved for a continuance of 10 days to allow time for his condition to improve. Attached to the motion for continuance was a copy of a letter from the 01-00243 -4complainant's doctor, stating that the complainant had been under the doctor's care for the ear infection and that the complainant's condition was expected to improve in three to four weeks. During an attorneys' conference on October 29, 1992, the referee asked the complainant's attorney to submit a written report from the complainant's doctor on the diagnosis, prescribed treatment, and prognosis for complainant's ear condition, including an estimate as to when hearings could resume. The referee requested that this report be provided to him on or before November 5, 1992, and continued the matter until December 1, 1992. On November 2, 1992, the Court issued an order stating that

auxiliary aids and services were required in the ongoing proceedings because of complainant's hearing disability and that the services would be obtained through the Cleveland Hearing and Speech Center. At the beginning of the hearing on December 1, 1992, although complainant's counsel had not provided the doctor's report required by the court, he informed the Court that the complainant was still experiencing hearing difficulties and that the FM system used during the earlier proceedings was not able to accommodate the complainant's changing hearing condition. Also, the complainant requested, in his motion, that the Court immediately reconvene the custody hearings so that he could see his daughter, and that the Court provide him with computerized real-time captioning of the court proceedings or some other instantaneous transcription. At the hearing, the referee gave the complainant two options. The complainant could "withdraw his motion for hearing accommodation and . . . [the Court] proceed today with the continued hearing" or the referee could "schedule a hearing to determine the extent of his hearing disability and what if any accommodations need to be made for that." Counsel informed the Court that, given the two options, "since . . . [the complainant's] hearing loss at this point is substantial enough that he cannot fully comprehend what is going on in the proceedings, . . . [he] would go forward with the hearing on the hearing accommodation." The referee scheduled a hearing for February 1, 1993. On December 2, 1992, CRS notified the Court of the complaints filed with the Department and began an investigation of possible violations of the ADA. On January 25, 1993, CRS made an inquiry to the Court, by telephone, regarding the purpose of the February 1, 1993, hearing. Subsequently the Court cancelled the hearing. Since that time, the Court has refused to conduct 01-00244 -5any further proceedings, pending the completion of the CRS investigation and CRS' notification to the Court that it has met its responsibilities with respect to the ADA. In a February 19, 1993, letter to the Court, CRS strongly

recommended that the Court recommence the proceedings without undue delay and not use the CRS investigation as a reason to delay the proceedings. On March 24, 1993, CRS reiterated its position that the Court should not use CRS' investigation as a reason to delay the proceedings. CRS further advised the Court that the investigation might require many more weeks, if not months, to complete. On May 28, 1993, CRS sent the Court a letter asking the Court to respond to the complainant's allegations. On June 30, 1993, the Court stated in a letter to CRS in which it stated: If [the complainant] wishes to bring a different type of Auxiliary aid with him to court, at his own expense, he is certainly free to do so. However, the Court has met its legal obligation with respect to reasonable accommodation, and is prepared today, as it was last December, to proceed with all matters pending before it with the system it provided in the September and October hearings, or with any other system which [the complainant] wishes to provide. On June 1, 1993, the mother filed a motion requesting that the Court continue the ex parte order that it had issued on August 25, 1992, which would expire on August 25, 1993. She noted that "the current federal investigation has effectively stayed ongoing proceedings." On June 16, 1993, the Court, over the complainant's objection, extended the ex parte order. The complainant has not been allowed visits (either supervised or unsupervised) with his daughter since August 1992, nor has he been allowed any contacts with her, including phone contacts, since October 1992. In a March 31, 1994, letter, CRS advised the County that the Court could hold an ex parte hearing or a more informal meeting with the complainant to determine the appropriate auxiliary aid, and that the Court could ask the complainant to document the extent or nature of his disability and the justification for a different auxiliary aid. On August 1, 1994, the trial judge held an attorney's conference with the complainant's counsel to discuss the complainant's request for an auxiliary aid. At the conference the counsel provided the judge with medical information and pamphlets regarding the current status of the complainant's ear conditions. The medical information reflected that the

complainant has a sloping mild to moderately-severe hearing loss 01-00245 -6in both ears, and a severe skin condition, which seemed to be continuous into his ear canals. On September 12, 1994, CRS wrote a letter to the County, asking for corrective actions to be taken no later than September 23, 1994. This letter stated that, based on documents and information CRS had received, it had determined that realtime transcription services, which the complainant had requested, would be the only means of ensuring effective communication with the complainant in the pending proceedings. CRS also advised the County that, unless the Court could demonstrate that the provision of such transcription would result in undue financial and administrative burdens, the Court would be required to provide the transcription services at the proceedings, in order to comply with Title II, and to hold an attorneys' conference expeditiously to set a date for resuming the proceedings without any undue delay. CRS also stated that, if the Court complied with these requirements, CRS would consider the complaints resolved and would close the files. CRS informed the Court that CRS' experience has been that generally the cost for real-time transcription services is not unduly burdensome. This letter stated that if CRS had not received a response by September 23, 1994, CRS would assume that the Court did not intend to take the corrective actions and would proceed to issue a violation Letter of Findings. On October 7, 1994, after several extensions, the County responded to CRS' letter of September 27, 1994, by stating that the Court had decided to order real-time transcription services for the proceedings, and had scheduled an attorneys conference for October 13, 1994. APPLICABLE LEGAL STANDARDS Individual with a Disability The Title II regulation at 28 C.F.R. 35.104 defines an "individual with a disability" as any individual who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Major life

activities, as defined in section 35.104, include hearing. Appropriate Steps To Ensure Effective Communication The Title II regulation at 28 C.F.R. 35.160(a) requires that a public entity take appropriate steps to ensure that communications with participants with disabilities are as effective as communications with others. Section 35.160(b)(1) requires a public entity to provide appropriate auxiliary aids and services whenever necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the 01-00246 -7benefits of, a service, program, or activity conducted by a public entity. Section 35.160(b)(2) provides that in determining what type of auxiliary aid or service is necessary, a public entity must give primary consideration to the requests of the individual with a disability. The preamble to section 35.160(b)(2) explains that "primary consideration" means that the public entity must honor the individual's expressed choice of auxiliary aid "unless it [the public entity] can demonstrate that another effective means of communication exists or that use of the means chosen would not be required under 35.164 [because it would result in a fundamental alteration in the nature of the program or in undue financial and administrative burdens]." The Title II regulation does not require a public entity to provide the specific auxiliary aid requested by the individual with a disability so long as the entity provides an equally effective auxiliary aid. As noted in section 35.104, auxiliary aids and services include qualified interpreters, notetakers, assistive listening devices, assistive listening systems, transcription services, or other effective methods of making orally, delivered materials available to individuals with disabilities. In responding to a request by an individual with a disability for provision of auxiliary aids, a public entity has an obligation to determine which, if any, of such aids and services are necessary to ensure the individual the opportunity to effectively participate in and benefit from the entity's programs, services, and activities. Pertinent factors to be

considered in making an informed decision as to necessary auxiliary aids and services include the extent of the individuals disability, the individuals prior use of auxiliary aids, the nature and relative complexity of proceedings, and modes through which content is presented, e.g., direct examination and cross examination. The ultimate responsibility for ensuring that individuals with disabilities receive necessary auxiliary aids and services rests with the public entity. Thus, in determining the appropriate auxiliary aid and service, the public entity may not hold a full, evidentiary hearing where opposing parties may participate. Determination of an effective auxiliary aid or service is a matter only between the individual with a disability and the public entity. The public entity may resolve the issue through consultation with the individual by holding an ex parte hearing or a more informal meeting, but opposing parties may not participate. Once the individual with a disability informs the public entity that an auxiliary aid or service that the public entity 01-00247 -8previously provided is no longer effective, the public entity then has the responsibility for determining, through consultation with the individual with a disability, whether this is true. If the aid or service is not effective, then the public entity must provide another auxiliary aid or device that is effective. In deciding these issues, the public entity may ask the individual with the disability to document the extent or nature of the disability and the justification(s) for a different auxiliary aid or service. ANALYSIS AND CONCLUSION Because the complainant's major life activity of hearing is substantially impaired, he meets the definition of an individual with a disability in accordance with section 35.104. The investigation shows that on August 21, 1992, the Court ordered the complainant to undergo a hearing test at the Cleveland Hearing and Speech Center. The test confirmed the complainant's disability, and the audiologist recommended that the Court provide the complainant with a voice amplification system. By the end of the day, the referee had called the

audiologist and learned the results of the test. Thus, on August 21, 1992, the Court recognized the complainant as a person with a hearing disability and knew of the necessity for the provision of appropriate auxiliary aids and services. The court-ordered audiological examination on August 21, 1992, had two purposes: (1) to establish the existence of a disability; and (2) to identify the type of auxiliary aid that would ensure the complainant's effective participation in the proceedings. The record shows that the complainant had not provided additional information and documentation to verify the existence of his hearing disability. Based on this evidence, it is the determination of this office, that on August 21, 1992, the Court had a legitimate reason to question the complainant's claim that he had a hearing disability. Therefore, the Court did not violate the ADA by requiring the complainant to pay for the court-ordered audiological examination. On August 25, 1992, the referee held a hearing concerning complainant's hearing evaluation. The attorneys representing the other parties were present at and participated in that hearing. At the hearing, the parties stipulated that the complainant had a hearing impairment that required "speech augmentation equipment" in order to ensure that he could hear the proceedings. Determination of an effective auxiliary aid and service is a matter between the complainant and the Court, and opposing parties may not participate in the determination. Thus, the Court violated section 35.160 of the Department's Title II 01-00248 -9regulation by allowing the opposing parties to participate in the August 25, 1992, hearing. In responding to the complainant's December 1, 1992, "Motion for a Hearing Disability Accommodation" requesting the Court to provide real-time transcription service, the Court required a full, evidentiary hearing on the validity of the request, and it scheduled the hearing for February 1, 1993. It is clear that the Court contemplated that opposing parties would again participate in determining the type of auxiliary aids and services to be provided. It is the determination of this office that the Court violated section 35.160 of the Title II regulation when it

ordered a full, evidentiary hearing on the complainant's request for a Different auxiliary aid. Finally, on June 30, 1993, the Court stated that it would proceed with all matters pending before it with the FM system it originally provided in the September and October hearings, or "with any other system which [the complainant] wishes to provide." After receiving the complainant's statement that the FM system previously provided by the Court was no longer effective, the Court's obligation was to determine, through consultation with the complainant, whether the complainant's statement was true and, if true, to provide a different auxiliary aid or service that would be effective. The Court did not engage in these steps. Therefore, it is the determination of this office that the Court violated the requirements of section 35.160 when it failed to consult with the complainant to ascertain whether a different effective auxiliary aid or service existed and when it made the availability of real-time transcription services conditional upon the complainant's willingness to provide the services at his own expense. On October 7, 1994, the County wrote CRS a letter in which it stated that the Court had decided to order real-time transcription services for future proceedings. This corrective action, when implemented, will resolve the areas of noncompliance set forth in this letter. Based on the Court's assurances, CRS is issuing this compliance Letter of Findings and is closing its investigation effective the date of this letter. This determination is not intended and should not be construed to cover any other issues regarding compliance with the Title II regulation which may exist but are not specifically discussed herein. Notice of this finding has been provided to the complainant. Please be advised that individuals filing a complaint or participating in an investigation are protected by Federal law against harassment, retaliation, or intimidation. Under the Freedom of Information Act, it may be necessary to release this document and related correspondence and records upon 01-00249 - 10 request. In the event that this office receives such a request,

we will seek to protect, to the extent provided by law, personal information which, if released, could constitute an invasion of privacy. We appreciate the cooperation and assistance that the office of Prosecuting Attorney, particularly, Mr. Patrick Murphy, extended to our office during the course of the investigation. If you have any questions about this matter, please contact Robert J. Mather at (202) 307-2236. Sincerely, Merrily A. Friedlander Acting Chief Coordination and Review Section Civil Rights Division

ccs: XX Thomas Kondzer, Esq. The Honorable Timothy Flanagan, Administrative Judge Patrick Murphy, Assistant Prosecuting Attorney

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