SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES OF AMERICA
WARRENTON OPERATIONS d/b/a BROOKSIDE REHABILITATION & NURSING CENTER
U.S. DEPARTMENT OF JUSTICE DJ # 202-79-355

BACKGROUND

1. The parties (“Parties”) to this Settlement Agreement (“Agreement”) are the United States of America (“United States”), Warrenton Operations, LLC d/b/a Brookside Rehab and Nursing Center (“BRNC”), a nursing facility located in Warrenton, Virginia, and Abraham A. Gutnicki and Judy Kushner, who are the named limited liability company Managers of BRNC. Warrenton Operations, LLC d/b/a/ Brookside Rehab and Nursing Center is a Delaware limited liability corporation that is registered to do business in Delaware and Virginia. Mr. Gutnicki and Ms. Kushner are the named limited liability company Managers and/or authorized signatories of seven other nursing facilities:  (1) Cranford Rehab & Nursing Center; (2) Lynwood Manor Health Center; (3) Mystic Meadows Rehab & Nursing Center; (4) Oakwood Care Center; (5) Rehab at Rivers Edge; (6) Skyview Springs Rehab and Nursing Center; and (7) Wellspring at Amelia (collectively “Gutnicki & Kushner Nursing Facilities”).
2. This matter was initiated by a complaint filed with the United States against BRNC, alleging violations of title III of the Americans with Disabilities Act of 1990, as amended (the “ADA”), 42 U.S.C. §§ 12181-12189, and its implementing regulation, 28 C.F.R. Part 36.  The United States Attorney’s Office received a complaint alleging that BRNC refused to accept the aggrieved individual, who is deaf and uses American Sign Language (“ASL”) as her primary means of communication, because she needed sign language interpretive services to ensure effective communication and instead offered to provide only a message board that was insufficient to ensure effective communication.

TITILE III COVERAGE

3. The United States Attorney for the Eastern District of Virginia (“U.S. Attorney’s Office”) is authorized to investigate alleged violations of Title III of the ADA, to use alternative means of dispute resolution, where appropriate, including settlement negotiations, to resolve disputes, and to bring a civil action in federal court in any case that raises issues of general public importance. 42 U.S.C. §§ 12188(b), 12212; 28 C.F.R. §§ 36.502, 503, 506.
4. The aggrieved individual is deaf, and as such, is an individual with a “disability” within the meaning of the ADA. 42 U.S. C. § 12102; 28 C.F.R. § 36.104.
5. BRNC is a public accommodation because its facility is a place of public accommodation and it owns, operates, leases or leases to the BRNC facility, a place that provides healthcare and social services to its Residents. 42 U.S.C. § 12181(7)(F) & (K); 28 C.F.R. § 36.104.
6. Ensuring that medical care providers, including nursing facilities, do not discriminate on the basis of disability is an issue of general public importance. The United States is authorized to investigate alleged violations of Title III of the ADA and to bring a civil action in federal court in any case that involves a pattern or practice of discrimination or that raises issues of general public importance. 42 U.S.C. § 12188(b).
7. The ADA prohibits discrimination on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a public accommodation. 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a). Discrimination includes: (1) imposition or application of eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations; and (2) failing to take such steps as necessary to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently than any other individual because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A) (i) & (iii); 28 C.F.R. §§ 36.301(a) & 36.303.
8. On the basis of its investigation, the U.S. Attorney’s Office has determined that:
1. BRNC maintains admission criteria for its nursing facility that screen out or tend to screen out individuals who are deaf;
2. BRNC refused to offer to furnish a qualified sign language interpreter or otherwise provide an effective method of communicating with the aggrieved individual and when its staff learned that the aggrieved individual would need sign language services for effective communication, it refused to accept her as a Patient.
9. BRNC’s use of impermissible eligibility criteria and its failure to offer to furnish appropriate auxiliary aids and services to ensure effective communication with the aggrieved individual violates 42 U.S.C. § 12182; 28 C.F.R. §§ 36.301(a) & 36.303.
10. The Parties have determined that the complaint filed with the United States can be resolved without litigation and have agreed to the terms of this Agreement.

DEFINITIONS

11. The term “auxiliary aids and services” includes qualified interpreters on-site or through video remote interpreting (VRI) services; notetakers; real-time computer-aided transcription services; 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. 28 C.F.R. § 36.303(b)(1).
12. The term “ BRNC Personnel” means all employees, both full and part-time, and employees of independent contractors with contracts to work for or with BRNC, including, without limitation, nurses, physicians, social workers, activities department employees, administrative staff, technicians, admitting personnel, billing staff, security staff, therapists, and volunteers, who have or are likely to have direct contact with Patients or Companions as defined herein.
13. The term “qualified interpreter” means an interpreter who, via a VRI service or an on-site appearance, is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators. 28 C.F.R. § 36.104.
14. The terms “Patient” and “Resident” may be used interchangeably in this agreement and shall be broadly construed to include any individual who is seeking or receiving the goods, services, facilities, privileges, advantages, or accommodations of BRNC.
15. The term “Companion” means a person who is deaf or hard of hearing and is a family member, friend, or associate of an individual seeking access to, or participating in, the goods, services, facilities, privileges, advantages, or accommodations of a public accommodation, who, along with such individual, is an appropriate person with whom the public accommodation should communicate. 28 C.F.R. § 36.303(c)(1)(i).
16. “Patient medical files, records or charts” means the medical files and related records for an individual patient, including both the paper and electronic records.
17. In the Equitable Relief section of this agreement, when the term “BRNC” is used, it also refers to the seven other nursing facilities in which Mr. Gutnicki and Ms. Kushner have an ownership interest. Thus, each of the Gutnicki & Kushner Nursing Facilities are subject to the Equitable Relief provisions of this Agreement

EQUITABLE RELIEF

1. Prohibition of Discrimination
18. Nondiscrimination. BRNC shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless BRNC can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden, as defined in 42 U.S.C. § 12182(b)(2)(A)(iii). Pursuant to 42 U.S.C. § 12182(a), BRNC shall also provide Patients and Companions, who are deaf or hard of hearing, with the full and equal enjoyment of the services, privileges, facilities, advantages, and accommodations of the hospital as required by this Agreement and the ADA.
19. Discrimination by Association. BRNC shall not exclude or otherwise deny equal goods, services, facilities, privileges, advantages, accommodations, or other opportunities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association. See 42 U.S.C. § 12182(b)(1)(E).
20. Retaliation and Coercion. BRNC shall not retaliate against or coerce in any way any person who made, or is making, a complaint according to the provisions of this Agreement or exercised, or is exercising, his or her rights under the ADA or this Agreement. See 42 U.S.C. § 12203.
2. Effective Communication
21. Appropriate Auxiliary Aids and Services. Pursuant to 42 U.S.C. § 12182(b)(2)(A)(iii), BRNC will provide to Patients and Companions, who are deaf or hard of hearing, any appropriate auxiliary aids and services that are necessary for effective communication after making the assessment described in paragraph 22 of this Agreement. Appropriate auxiliary aids and services will be provided as soon as practicable (without compromising patient care), except that the provision of on-site interpreters must be within the time frame described in paragraph 31of this Agreement. BRNC will advise Patients and Companions who require auxiliary aids or services, in writing, that these are available throughout the Patient’s stay.
22. General Assessment Criteria. The determination of appropriate auxiliary aids or services, and the timing, duration, and frequency with which they will be provided, will be made by BRNC in consultation with the person with a disability. The assessment made by BRNC Personnel will take into account all relevant facts and circumstances, including, but not limited to the following:
1. The method of communication used by the individual and the individual’s communication skills, which may, but is not required to, include a professional assessment of the individual’s communication skills conducted by a clinician, who is qualified to perform such an assessment;
2. The nature, length, complexity, and importance of the communication at issue, and the context in which the communication is taking place;
3. The Resident’s health status or changes thereto; and
4. The Resident’s and Companion’s request for, or statement of need for, auxiliary aids or services, including a qualified interpreter.

BRNC recognizes that some individuals that it serves may have a disability that interferes with his/her ability to articulate a request for an auxiliary aid or service, including sign language interpreting services, and will ensure that BRNC furnishes such individuals appropriate auxiliary aids or services, including sign language interpreting services. BRNC will use the attached Communication Assessment Form or an electronic version thereof as a part of this assessment process. Exhibit A. BRNC shall ensure that, for any individual or third party on behalf of an individual with a disability, who requests an auxiliary aid or service, or who BRNC reasonably believes may need an auxiliary aid or service based on objective factors, to enjoy equal access to the goods, services, facilities, privileges, advantages, or accommodations offered by BRNC, a Form shall be provided to each individual Resident or Companion for completion.". BRNC shall provide assistance in completing the Form at the Resident’s or Companion’s request. After being completed, the Form(s) shall be maintained in the Resident’s file, whether kept in paper or electronic form. If a Resident identifies a Companion who is not presently at BRNC but is expected at BRNC during the time when the Resident will be receiving services, BRNC Personnel shall provide the Resident with the contact information of BRNC Personnel who can assist the Companion in completing the Form. As part of this Agreement, BRNC agrees that if at any point during a Resident’s stay, a Companion identifies themselves as deaf or hard of hearing, BRNC shall promptly provide them with the Form, if it has not done so already.

23. Time for Assessment. The determination of which appropriate auxiliary aids and services are necessary, and the timing, duration, and frequency with which they will be provided, must be made at the time BRNC learns that a Patient or Companion who is deaf or hard of hearing will be using its services or on the arrival of the Patient or Companion who is deaf or hard of hearing at BRNC, whichever is earlier. BRNC Personnel will perform an assessment (see paragraph 22) as part of each initial inpatient assessment and document the results in the Patient’s medical chart (including the results of the assessments of companion’s need for auxiliary aids and services). BRNC Personnel will reassess, as appropriate, which appropriate auxiliary aids and services are necessary, in consultation with the person with a disability, where possible, and provide such aid or service based on the reassessment.
24. ADA Administrators. BRNC will designate at least one employee as an ADA Administrator and will have someone designated to act in his absence such that someone will always be on duty and available twenty-four (24) hours a day, seven (7) days a week, to answer questions and provide appropriate assistance regarding prompt access to, and proper use of, the appropriate auxiliary aids and services, including qualified interpreters. The ADA Administrator or his designee will know where the appropriate auxiliary aids are stored and how to operate them and will be responsible for their maintenance, repair, replacement, and distribution. BRNC will circulate and post in public locations, including public bulletin boards and its main notice board  within BRNC the name, telephone number, function, and office location of the Administrator(s), including a TTY telephone number, through which the ADA Administrator or designee on duty can be contacted twenty-four (24) hours a day seven days a week by Patients and Companions who are deaf or hard of hearing. BRNC’s ADA Administrator will be responsible for the complaint resolution mechanism described in paragraph 26 of this Agreement. The ADA Administrator will be designated by BRNC no later than 30 days following execution of this Agreement and will be subject to approval by the U.S. Attorney’s Office.
25. Auxiliary Aid and Service Log. BRNC will maintain a log in which requests for auxiliary aids or services will be documented. The log will indicate:
1. The name of the Resident or Companion who is deaf or hard of hearing, who made the request;
2. The time and date the request was made;
3. The time and date the request was made for, i.e., for immediate use (emergent need) or for a scheduled meeting (stating the date and time of the meeting);
4. The identity of the BRNC personnel who conducted the assessment and made the determination of which auxiliary aid or service to provide;
5. The name of the staff member making the request and time and date the request was made by staff;
6. The auxiliary aid or service provided; and
7. All times and dates the auxiliary aid or service was provided.

If the requested Auxiliary Aid or Service was not provided, another auxiliary aid or service was selected by BRNC, or was provided outside of the timeliness provisions contained in paragraph 31 of this agreement, the log shall contain a statement explaining why. Such logs will be maintained by the ADA Administrator or designee for the entire duration of the Agreement, and will be incorporated into the semi-annual Compliance Reports as described in paragraph 52 of this Agreement.

26. Complaint Resolution. BRNC will establish a grievance resolution mechanism for the investigation of disputes regarding effective communication with Patients and Companions who are deaf or hard of hearing. BRNC will maintain records of all grievances regarding effective communication, whether oral or written, made to BRNC and actions taken with respect thereto. At the time BRNC completes its assessment described in paragraph 22 and advises the Patient and/or Companion of its determination of which appropriate auxiliary aids and services are necessary, BRNC will notify deaf and hard of hearing persons of its grievance resolution mechanism, to whom complaints should be made, and of the right to receive a written response to the grievance. A written response to any grievance filed shall be completed promptly, but no later than within seven (7) days of receipt of the complaint. Copies of all grievances related to provision of services for Patients or Companions who are deaf or hard of hearing and the responses thereto will be maintained by the ADA Administrator or designee for the entire duration of the Agreement, and will be incorporated into the semi-annual Compliance Reports as described in paragraph 52 of this Agreement.
27. Prohibition of Surcharges. All appropriate auxiliary aids and services provided by BRNC will be provided free of charge to the Patient or Companion who is deaf or hard of hearing.
28. Record of Need for Auxiliary Aid or Service. BRNC will take appropriate steps to ensure that all BRNC Personnel are made aware of a Patient or Companion’s disability and auxiliary aid and services needed so that effective communication with such person will be achieved. These steps will include designating this information in the medical record. The Patient’s medical record shall be conspicuously labeled (such as with a sticker, indicator, or label on the cover) to alert BRNC Personnel to the fact that the Patient and/or Companion is deaf or hard of hearing. The medical record shall indicate the mode of communication requested by and provided to the Patient or Companion.
3. Qualified Interpreters
29. Circumstances Under Which Interpreters Will Be Provided. Depending on the complexity and nature of the communication, a qualified interpreter may be necessary to ensure effective means of communication for Patients and Companions. When an interpreter is needed, the BRNC shall provide qualified sign language interpreters to Patients and Companions who are deaf or hard of hearing and whose primary means of communication is sign language, and qualified oral interpreters to such Patients and Companions who rely primarily on lip reading as necessary for effective communication. Examples of circumstances when the communication may be sufficiently lengthy or complex so as to require an interpreter include the following:
1. When federal and/or state regulations and/or state manuals and/or BRNC’s policies require Residents to have a meaningful opportunity to participate in discussions regarding services that affect them;
2. When federal and/or state regulations and/or state manuals and/or BRNC’s policies require Residents to have access to information that is in a language that is understandable to the Resident;
3. Providing admission tours of BRNC to potential patients and companions;
4. Initial orientation discussions including explanations of program services, policies, rules, and the Resident handbook;
5. Discussing a patient’s symptoms and medical condition, medications, and medical history;
6. Notices and explanations of legal, civil and human rights;
7. When BRNC conducts its initial and periodic assessments of a patient;
8. Meetings in which care and service planning is discussed;
9. Interviews of patients as a part of incident investigations, including but not limited to those that involve injury of a patient;
10. Execution of legal documents;
11. Explaining medical conditions, treatment options, tests, medications, surgery and other procedures;
12. Providing a diagnosis and recommendation for treatment;
13. Communicating with a patient during treatment, including physical and occupational therapies, testing procedures, and during physician’s rounds;
14. Obtaining informed consent for treatment;
15. Providing instructions for medications, pre- and post-surgery instructions, post- treatment activities and follow-up, treatments;
16. Providing mental health services, including group or individual counseling for patients and family members;
17. Providing information about blood or organ donations;
18. Discussing powers of attorney, living wills and/or complex billing and insurance matters;
19. During educational presentations;
20. Discussing discharge planning and discharge instructions; and
21. When BRNC provides religious services and spiritual counseling.

In the above circumstances, BRNC will presume that a qualified interpreter is necessary for effective communication with a Patient or Companion who relies upon such Auxiliary Aid and Service.

30. Chosen Method for Obtaining Interpreters.

Within thirty (30) days after execution of this Agreement, BRNC agrees:

1. To have written agreements with five or more interpreter services to ensure that interpreting services will be available on a priority basis, twenty-four hours per day, seven days a week.
2. To select qualified interpreters or interpreter services that have been screened for the quality and skill of its interpreters to work with BRNC’s residents. BRNC will review and update this list annually.
3. To establish internal procedures for its personnel to order interpreting services that are consistent with the interpreter or interpreter agencies’ procedures. At a minimum, all of BRNC’s requests for interpreters, including the time, date and
4. location, will be confirmed in writing at the time of the request. If BRNC receives verbal confirmation or speaks with the vendor regarding the BRNC’s request for an interpreter, BRNC will confirm such conversations in writing and this information will be documented in the Interpreter’s Log. BRNC will retain a copy of all written correspondence with interpreting services. Additionally, for the duration of this Agreement, BRNC will file a copy of its written correspondence with interpreters and interpreting agencies in the Auxiliary Aid and Service Log discussed in paragraph 25.

BRNC may also hire qualified sign language interpreter(s) to be staff interpreter(s) that have been screened for the quality and skill of its interpreters to work with the population that resides at BRNC.

31. Provision of Interpreters in a Timely Manner.
1. Non-scheduled Interpreter Requests: A “non-scheduled interpreter request” means a request for an interpreter made by a Patient or Companion who is deaf or hard of hearing with less than two (2) hours advance notice. For non-scheduled interpreter requests, BRNC Personnel will complete the assessment described in paragraph 22 above. The interpreter shall be provided no more than (a) two hours from the time BRNC completes the assessment if the service is provided through a contract interpreting service or a staff interpreter who is located off-site or (b) 15 minutes from the time BRNC completes the assessment if the service is provided through a Video Remote Interpreting service as described in paragraph 32 below. Deviations from this response time will be addressed with the interpreting service provider, and performance goals will be reviewed with the U.S. Attorney’s Office. If no interpreter can be located, BRNC Personnel will take the following additional steps:
1. BRNC Personnel will exert reasonable efforts (which shall be deemed to require no fewer than five (5) telephone inquiries and/or emails and/or text messages unless exceptional circumstances intervene) to contact any interpreters or interpreting agencies already contracted with BRNC and request their services;
2. Inform the ADA Administrator of the efforts made to locate an interpreter and solicit assistance in locating an interpreter;
3. Inform the Patient or Companion of the efforts taken to secure a qualified interpreter and that the efforts have failed, and follow up on reasonable suggestions for alternate sources of qualified interpreters; and
4. Document all of the above efforts.
2. Scheduled Interpreter Requests. A “scheduled interpreter request” is a request for an interpreter made two (2) or more hours before the services of the interpreter are required. For scheduled interpreter requests, BRNC will complete the assessment described in paragraph 22 above in advance, and, when an interpreter is appropriate, BRNC will make a qualified interpreter available at the time of the scheduled appointment. If an interpreter fails to arrive for the scheduled appointment, upon notice that the interpreter failed to arrive, BRNC will immediately contact an interpreter service for another qualified interpreter.
3. Data Collection on Interpreter Response Time and Effectiveness. BRNC will monitor the performance of each qualified interpreter it uses to provide communication to Patients or Companions who are deaf or hard of hearing by monitoring their response time and seeking feedback from the individual who requires the services of the interpreter. As part of the Auxiliary Aid and Service Log, described in paragraph 25, BRNC shall collect and maintain information regarding response times and effectiveness for requests for interpreters.
32. Video Remote Interpreting (VRI). VRI can provide immediate, effective access to interpreting services in a variety of situations including emergencies and unplanned incidents. When using VRI services, BRNC shall ensure that it provides: (1)Real-time, full-motion video and audio over a dedicated high-speed, wide-bandwidth video connection or wireless connection that delivers high-quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in communication; (2) sharply delineated image that is large enough to display the interpreter’s face, arms, hands, and fingers, and the participating individual’s face, arms, hands, and fingers, regardless of his or her body position; (3) A clear, audible transmission of voices; and (4) Adequate training to users of the technology and other involved individuals so that they may quickly and efficiently set up and operate the VRI. 28 C.F.R. § 36.303(f). VRI shall not be used when it is not effective due, for example, to a patient’s limited ability to move his or her head, hands or arms; vision or cognitive issues; significant pain; or due to space limitations in the room. If, based on the circumstances, VRI is not providing effective communication after it has been provided or is not available due to circumstances outside of BRNC’s control, VRI shall not be used as a substitute for an on- site interpreter, and an on-site interpreter shall be provided in accordance with the timetable set forth above in which case the determination that VRI is not effective shall count as the completion of assessment for timing purposes. Further, if the VRI device is not functioning properly and BRNC’s staff is unable to get the VRI device to function properly within 30 minutes of when it started to malfunction, it will call for an on-site interpreter.
33. Notice to Patients and Companions Who are Deaf or Hard of Hearing. As soon as BRNC Personnel have determined that auxiliary aids or services are necessary for effective communication with a Patient (and his or her authorized representative) or Companion who is deaf or hard of hearing, BRNC will inform the Patient or Companion of the current status of efforts being taken to secure such auxiliary aids or services on his or her behalf. BRNC will provide additional updates to the Patient or Companion as necessary until the auxiliary aids or services are secured.  Notification of efforts to secure a qualified interpreter does not lessen BRNC’s obligation to provide qualified interpreters in a timely manner as required by paragraph 31 of this Agreement.
34. Other Means of Communication. BRNC agrees that between the time an interpreter is requested and the interpreter is provided, BRNC Personnel will continue to try to communicate with the Patient or Companion who is deaf or hard of hearing for such purposes and to the same extent as they would have communicated with the person but for the disability, using all available methods of communication, including using sign language pictographs. This provision in no way lessens BRNC’s obligation to provide qualified interpreters in a timely manner as required by paragraph 31of this Agreement.
35. Restricted Use of Certain Persons to Facilitate Communication.
1. BRNC shall not require an individual who is deaf or hard of hearing to bring another individual to interpret for him or her. 28 C.F.R. § 36.303(c)(2).
2. BRNC shall not rely on an adult accompanying an individual with a disability 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 with a disability 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. 28 C.F.R. § 36.303(c)(3). Consent of, and for, the accompanying adult to facilitate communication must be provided freely and voluntarily both by the individual with a disability and the accompanying adult. BRNC may not coerce or attempt to persuade another adult to provide effective communication for the individual with a disability. See 28 C.F.R. Part 36, App. A.
3. BRNC will not rely on a minor child or another Resident 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. 28 C.F.R. § 36.303(c)(4). The imminent threat exception in this paragraph and its subparts is not intended to apply to the typical and foreseeable emergency situations that are a part of the normal operations of the BRNC’s programs, services, and activities. Personnel may rely on an accompanying individual to interpret or facilitate communication under this paragraph only in truly emergency circumstances, i.e., where any delay in providing immediate services to the individual could have life-altering or life-ending consequences. See 28 C.F.R. Part 36, App. A (discussion of 28 C.F.R. § 36.303(c)(3)-(4)). Once the emergency has lifted, personnel should revisit the decision of what auxiliary aids and services are appropriate.
4. BRNC will not use its personnel as sign language interpreters unless, as discussed in paragraph 30 above, the employee’s sign language interpreting skills have been evaluated and BRNC can document that the individual is a “qualified interpreter” pursuant to 28 C.F.R. §36.104. Further, BRNC will not use its personnel as sign language interpreters or oral transliterators if the employee’s presence poses a conflict of interest or raises confidentiality and privacy concerns. 28 C.F.R. § 36.303(c)(1)(ii).
36. Individuals May Revise Their Communication Requests. If a Patient or Companion indicates to BRNC Personnel that he or she wants an auxiliary aid or service, including an interpreter, after failing to request one on the Deaf or Hard of Hearing Communication Request Form, BRNC Personnel shall conduct a new assessment as required by paragraph 22.
4. Telephones and Related Equipment
37. Telephones in Patient Rooms. Within sixty (60) days of the Effective Date of this Settlement Agreement:
1. Portable access technology – defined. BRNC will make available portable access technology. Such technology, as referred to in this section, shall include TTY’s with printout capability, other electronic devices, visual notification devices for incoming telephone calls, volume control telephones, and telephones that are hearing aid compatible. BRNC will ensure that each volume control telephone complies fully with § 704.3 of the 2010 Standards.
2. Portable access technology - general obligation. BRNC will make portable access technology available to Patients and Companions who are deaf or hard of hearing who are admitted to (or are accompanying Patients who are admitted to) rooms equipped with a telephone. In units where patients normally do not have telephones in their rooms, if hearing patients are given access to common area telephones other than the public phones identified in this Settlement Agreement. BRNC will maintain appropriate portable access technology that can be used by Patients and Companions so that such persons have equal access to make outgoing calls and receive incoming calls as do hearing persons.
3. Electrical Outlets. Each patient room with a telephone shall have an electrical outlet or power strip within sufficient distance of the telephone connection to facilitate the use of a TTY device or other portable access technology.
4. Timeliness. Within sixty (60) days of the Effective Date of this Settlement Agreement, BRNC will make the equipment required by this section available within thirty (30) minutes of a Patient’s arrival in a patient room when requested, regardless of the hour of the day or night. BRNC will notify all relevant Personnel of the availability and location of this equipment.
38. Televisions and Caption Decoders. Within sixty (60) days of the Effective Date of this Settlement Agreement, BRNC will ensure that Patients and Companions with who are deaf or hard of hearing have priority use of televisions with closed captioning capabilities. 28 C.F.R. § 36.303(e).
39. Visual Alert Notifications.
1. BRNC Residents who are deaf or hard of hearing should not miss announcements, alarms, or any other auditory information from BRNC staff because of the lack of effective communication of their disability. 2010 ADA Standards for Accessible Design, § 215.
2. BRNC shall provide an effective visual notification system that will notify Residents who are deaf or hard of hearing, of nursing facility events. Id.
3. BRNC will provide Residents who are deaf or hard of hearing with an effective visual notification system, which will advise them of an emergency evacuation or other emergency. Id.
5. Effective Communication Policies and Procedures.
40. Within thirty (30) days of the effective date of this Agreement, BRNC will submit for review and approval to the United States its policies and procedures to implement fully the Settlement Agreement. The United States Attorney’s Office will not unreasonably withhold approval. Upon receipt of the United States’ comments, BRNC will address all of the United States’ concerns, if any, and will resubmit a draft for final approval, if any changes are needed. The adoption of the final policies and procedures will occur within 30 days of the BRNC’s receipt of approval by the United States.
6. Notice to Community
41. Policy Statement. Within sixty (60) days of the entry of this Agreement, BRNC shall post and maintain signs of conspicuous size and print in BRNC admissions area and wherever a Patient’s Bill of Rights is required by law to be posted. Such signs shall be to the following effect (and shall include the appropriate contact information):

Sign language and oral interpreters, TTYs, and other auxiliary aids and services are available free of charge to people who are deaf or hard of hearing. For assistance, please contact any BRNC Personnel or the Information Office at _ voice/TTY), room _.

42. Website. BRNC will include on its website the policy statement described in paragraph 41 above.
43. Patient Handbook. Within sixty days of executing this agreement, BRNC will include in its Patient Handbook (or equivalent) and all similar publications a statement to the following effect:

To ensure effective communication with Patients and their Companions who are deaf or hard of hearing, we provide appropriate auxiliary aids and services free of charge, such as: sign language and oral interpreters, video remote interpreting services, TTYs, note takers, written materials, telephone handset amplifiers, assistive listening devices and systems, telephones compatible with hearing aids, televisions with caption capability or closed caption decoders, and open and closed captioning of most BRNC programs.

Please ask your nurse or BRNC Personnel for assistance, or contact the Information Office at _ (voice or TTY), room _.

BRNC will also include in its Patient Handbook (or equivalent) a description of its complaint resolution mechanism.

7. Notice to BRNC Personnel and Physicians
44. Policy Statement. BRNC shall publish on its intranet or post on its main notice board a policy statement regarding the BRNC’s policy for effective communication with persons who are deaf or hard of hearing. This policy statement shall include, but is not limited to, language to the following effect:

If you recognize or have any reason to believe that a Patient or a relative, close friend, or Companion of a Patient is deaf or hard of hearing, you must advise the person that appropriate auxiliary aids and services, such as sign language and oral interpreters, video remote interpreting services, TTYs, note takers, written materials, telephone handset amplifiers, assistive listening devices and systems, telephones compatible with hearing aids, televisions with captioning or closed caption decoders, and open and closed captioning of most hospital programs, will be provided free of charge when appropriate. If you are the responsible health care provider, you must ensure that such aids and services are provided when appropriate. All other personnel should direct that person to the appropriate ADA Administrator at __ and reachable at ___.

BRNC will deploy this policy on the intranet within thirty (30) days of the Effective Date of this Agreement to all BRNC Personnel and to physicians who provide services to Patients at BRNC.

8. Training
45. Training of ADA Administrator. BRNC will provide mandatory training for the ADA Administrator(s) within thirty (30) days of designation as provided in paragraph 24 of this Agreement. Such training will be sufficient in duration and content to train the ADA Administrator(s) in the following areas:
1. Ensuring that BRNC is in compliance with all aspects of this settlement agreement;
2. to promptly identify communication needs of Patients and Companions who are deaf or hard of hearing and which auxiliary aids are effective in different circumstances;
3. the mandatory use of the Communication Assessment form in Exhibit A
4. to secure qualified interpreter services as quickly as practicable when necessary;
5. the need to document all communications with sign language interpreting services, including the order and confirmation that the service will be sending an interpreter at the time, date and location requested;
6. to encourage clinical staff members to notify BRNC’s ADA Administrator of Patients and Companions who are deaf or hard of hearing as soon as Patients schedule admissions, tests, rehabilitation, or other health care services at the BRNC;
7. to use, when appropriate, flash cards and pictographs (in conjunction with any other available means of communication that will ensure the effectiveness of the communication);
8. if BRNC decides to use VRI, how and when to use this service and the appropriate use of VRI;
9. making and receiving calls through portable access, including TTYs and the relay service; and
10. BRNC’s complaint resolution procedure described in paragraph 26 of this Agreement.
46. Training of BRNC Personnel. BRNC will provide mandatory annual in-service training to all BRNC Personnel.
1. The training will address the needs of Patients and Companions who are deaf or hard of hearing and will include the following objectives:
1. Ensuring BRNC personnel are complying with the terms of this Settlement Agreement;
2. to promptly identify communication needs of Patients and Companions who are deaf or hard of hearing;
3. the mandatory use of the Communication Assessment form referenced in Exhibit A;
4. to secure qualified interpreter services or video remote interpreting services as quickly as possible when necessary;
5. the need to document all communications with sign language interpreting services, including the order and confirmation that the service will be sending an interpreter at the time, date and location requested; and to use, when appropriate, flash cards and pictographs (in conjunction with any other available means of communication that will augment the effectiveness of the communication).
2. Such training must be provided within ninety (90) days of the Effective Date of this Agreement.
3. New employees must be trained within thirty (30) days of their hire. A screening of a video of the original training will suffice to meet this obligation.
47. Training of Telephone Operators. All BRNC Personnel who receive incoming telephone calls from the public will receive instructions by BRNC on using TTYs or relay services to make, receive, and transfer telephone calls and will receive training generally on the existence in BRNC of an ADA Administrator, as detailed in paragraph 24 of this Agreement, and the complaint resolution process, as described in paragraph 26 of this Agreement. Such training must be provided within 90 days of the Effective Date of this Agreement and will be conducted annually thereafter.
48. Training Attendance Sheets. BRNC will maintain in electronic form for the duration of this Agreement, confirmation of training conducted pursuant to paragraphs 45, 46 and 47 of this Agreement, which will include the names, signature, and respective job titles of the attendees, as well as the date and time of the training session.
49. Notice to Active Medical Staff. In addition to providing the training in paragraph 46 above, BRNC will create and send an email blast advising active healthcare staff of its policy on the communication needs of Patients or Companions who are deaf or hard of hearing and will invite physicians with active medical staff privileges at BRNC to complete ADA specific training. This email will direct active healthcare staff to BRNC’s web page which will include: (1) BRNC’s Policy Statement on addressing the needs of individuals who are deaf or hard of hearing; and (2) a request that active healthcare staff notify BRNC of Patients and Companions who are deaf or hard of hearing as soon as they schedule admissions, tests, or other health care services at the hospital.
50. Use of Outside Trainer. BRNC will use an independent agency or group to conduct the initial trainings described in this Agreement. The independent agency used to train BRNC shall be subject to the approval of the U.S. Attorney’s Office. For the required annual trainings thereafter, BRNC may conduct trainings without the assistance of an independent group, but must sufficiently update and/or create training materials in order to ensure the trainings include any new developments to the ADA and its requirements. BRNC may also videotape the initial trainings for annual trainings as long as BRNC also ensures that it supplements such training with any new developments to the ADA and its requirements.
9. Reporting, Monitoring, and Violations
51. Training Materials. Within sixty (60) days of the effective date of this Agreement, BRNC will provide the United States with a copy of all training materials used to train its staff, training attendance sheets required in Paragraph 45, 46 and 47 above, and photographs of the notices posted in its offices pursuant to this Agreement.
52. Compliance Reports. Beginning six months after the Effective Date of this Agreement and every six months thereafter for the entire duration of the Agreement, BRNC will provide a written report (“Compliance Report”) to the U.S. Attorney’s Office regarding the status of its compliance with this Agreement. The Compliance Report will include data relevant to the Agreement, including but not limited to:
1. the Auxiliary Aid and Service Log described in paragraph 25; and
2. the number of complaints received by BRNC from Patients and Companions who are deaf or hard of hearing regarding auxiliary aids and services and/or effective communication, and the resolution of such complaints including any supporting documents, as described in paragraph 26.

BRNC will maintain records to document the information contained in the Compliance Reports and will make them available, upon request, to the U.S. Attorney’s Office.

53. Complaints. During the term of this Agreement, BRNC will notify the U.S. Attorney’s Office if any person files a lawsuit, complaint or formal charge with a state or federal agency, alleging that BRNC failed to provide auxiliary aids and services to Patients or Companions who are deaf or hard of hearing, or otherwise failed to provide effective communication with such Patients or Companions. Such notification must be provided in writing via certified mail within twenty (20) days of the date BRNC received notice of the allegation and will include, at a minimum, the nature of the allegation, the name of the person making the allegation, and any documentation possessed by BRNC relevant to the allegation BRNC will reference this provision of the Agreement in the notification to the U.S. Attorney’s Office.
10. Compensatory Relief for Complainants and Release
54. Within ten (10) days after receiving the complainants’ signed releases (a blank release form is at Exhibit B), BRNC will send a check in the amount of forty-thousand dollars ($40,000) made out to the aggrieved individual. This check is compensation to the aggrieved party pursuant to 42 U.S.C. § 12188(b)(2)(B), for the effects of the alleged discrimination suffered as described in paragraph 2 above. The checks shall be mailed to:

    Financial Litigation Unit
    United States Attorney’s Office for Eastern District of Virginia
    101 W. Main Street #8000
    Norfolk, VA 23510

    A copy of the checks shall be sent to:

    Steven Gordon Assistant United States Attorney 2100 Jamieson Avenue
    Alexandria, VA 22314

11. Payment of Civil Penalty to the United States
55. Within ten (10) days of the Effective Date of this Agreement, the BRNC will pay to the United States of America the sum of fifty thousand dollars ($50,000.00) pursuant to 42 U.S.C. §12188(b)(2)(C). The check shall be mailed to:

    Financial Litigation Unit United States Attorney’s Office for Eastern District of Virginia 101 W. Main Street #8000
    Norfolk, VA 23510

    A copy of the check shall be sent to:

    Steven Gordon
    Assistant United States Attorney
    2100 Jamieson Avenue
    Alexandria, VA 22314

12. Enforcement and Miscellaneous
56. This Agreement will be in effect for three (3) years from the Effective Date.
57. In consideration of the terms of this Agreement as set forth above, the Attorney General agrees to refrain from undertaking further investigation or from filing a civil suit under title III of the ADA related to the allegations in paragraph 2, except as provided in paragraph 58. Nothing contained in this Agreement is intended or shall be construed as a waiver by the United States of any right to institute proceedings against BRNC for violations of any statutes, regulations, or rules administered by the United States or to prevent or limit the right of the United States to obtain relief under the ADA.
58. The United States may review compliance with this Agreement at any time and can enforce this Agreement if the United States believes that it or the requirements thereof has been materially violated by instituting a civil action in the U.S. District Court. If the United States believes that this Agreement or the requirements thereof have been materially violated, it will raise its claim(s) in writing BRNC, and the parties will attempt to resolve the concern(s) in good faith. The United States will allow BRNC thirty (30) days from the date it notifies BRNC of any breach of this Agreement to cure said breach, prior to instituting any court action to enforce the ADA or the terms of the Agreement.
59. This Agreement and the attachments hereto constitute the entire agreement between the parties on the matters 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, shall be enforceable. This Agreement is limited to the facts set forth herein and does not purport to remedy any other potential violations of the ADA or any other federal law.
60. This Agreement is final and binding on the parties, including all principals, agents, executors, administrators, representatives, successors in interest, beneficiaries, assigns, heirs and legal representatives thereof. BRNC has a duty to so inform any such successor in interest of this Agreement.
61. Failure by the United States to seek enforcement of this Agreement pursuant to its terms with respect to any instance or provision shall not be construed as a waiver to such enforcement with regard to other instances or provisions.
62. The effective date of this Settlement Agreement is the date of the last signature below.
63. This Agreement may be executed in counterparts, each of which constitutes an original and all of which constitute one and the same Agreement. Electronically transmitted signatures shall constitute acceptable, binding signatures for purposes of this Agreement.