Settlement Agreement

Between The United States of America

and

Medical Facilities of America XXIX (29) Limited Partnership
t/a Burke Health and Rehabilitation Center

DJ# 202-79-242

Press Release

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I.   Background

1.         The parties are The United States of America and Medical Facilities of America XXIX (29) Limited Partnership t/a Burke Health and Rehabilitation Center located in Burke, Virginia.

2.        The United States Department of Justice ("the Department") is the federal agency responsible for administering and enforcing Title III of the Americans with Disabilities Act of 1990, as amended ("ADA"), 42 U.S.C. § 12181 et seq.

3.         The complaint was filed by Benny Warden, on behalf of his father, Melvin Warden, who is deaf. The complaint alleges that Burke Health and Rehabilitation Center violated Title III of the ADA, 42 U.S.C. §§12181 – 12189, and its implementing regulation, 28 C.F.R. Part 36.

4.         Melvin Warden utilizes American Sign Language ("ASL") as his primary means of communication and he is an individual with a disability within the meaning of the ADA.  42 U.S.C. § 12102(1)(A); 28 C.F.R. § 36.104.

5.         The complainant alleges that his father sought admission to Burke Health and Rehabilitation Center and requested a sign language interpreter with strong ASL Skills.  A request was made on behalf of the father via the Allscripts/Ecin system. Burke Health and Rehabilitation Center's electronic response stated in relevant part that they had alternative forms of written communication and communication boards, but did not have an on-site ASL interpreter.  

6.         The Attorney General of the United States is authorized to investigate alleged violations of Title III of the ADA, and to bring a civil action in federal court if the United States is unable to secure voluntary compliance 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.         Burke Health and Rehabilitation Center is a place of public accommodation covered by Title III of the ADA. 42 U.S.C. § 12181(7)(F); 28 C.F.R. § 36.104.

8.        The ADA prohibits public accommodations from discriminating against an individual on the basis of disability in the full and equal enjoyment of its goods, services, privileges, advantages, or accommodations, and requires public accommodations to provide auxiliary aids and services when necessary to ensure effective communication. 42 U.S.C. §§ 12182(a); 12182(b)(2)(A)(iii); 28 C.F.R. §§ 36.201(a), 36.303.

9.         Burke Health and Rehabilitation Center denies that it refused to provide an interpreter.  The parties have determined that the Department's investigation of complaint DJ# 202-79-242 can be resolved without further federal enforcement action or litigation and have prepared and agreed to the terms of this Settlement Agreement. In consideration of the terms of this Settlement Agreement, the United States agrees to refrain from undertaking further investigation or from filing a civil suit in Complaint DJ# 202-79-242, except as provided in paragraph 12.4 below.

II.    Agreement

10.       Definitions

The parties agree and stipulate that certain terms shall be defined for purposes of this Settlement Agreement:

a)    The term "The Department" shall mean and refer to the United States Department of Justice.

b)    The term "auxiliary aids and services" includes but is not limited to: qualified interpreters on-site or through video remote interpreting (VRI) services; note takers; 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 have hearing loss. 28 C.F.R. § 36.303(b)(1).

c)    The term "Burke Health and Rehabilitation Center Personnel" shall mean and refer to all employees, contractors, and officers of Burke Health and Rehabilitation Center including, without limitation to, physicians, nurses, social workers, technicians, admitting personnel, billing staff, and therapists.

d)     The term "ADA Coordinator" shall mean and refer to an employee at Burke Health and Rehabilitation Center appointed to serve as an ADA Coordinator to address ADA matters, including requests for auxiliary aids and services. The ADA Coordinator shall be knowledgeable regarding the ADA and shall oversee the provision of appropriate auxiliary aids and services to persons who are deaf or hearing loss. In consultation and coordination with outside service providers, the ADA Coordinator shall coordinate the provision of auxiliary aids and services to Patients and Companions, as defined in this Agreement. The ADA Coordinator will also coordinate the staff training as set forth in paragraph 11.8 below. The ADA Coordinator shall also serve as the Burke Health and Rehabilitation Center ADA resource.

e)     The term "Patient" shall mean and refer to a person who is deaf or hearing loss and is seeking and/or receiving medical services at Burke Health and Rehabilitation Center.

f)     The term "Companion" shall mean and refer to a person who is deaf or hearing loss 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.

g)     The term "qualified sign language interpreter" shall mean an interpreter who, via video remote interpreting (VRI) services or an on-site appearance, is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary.  Qualified sign language interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators.

h)     The term "video remote interpreting" ("VRI") shall mean and refer to an interpreting service that uses video conference technology over dedicated lines or wireless technology offering high-speed, wide-bandwidth video connection that delivers high-quality video images as provided in 28 C.F.R. § 36.303(f).

i)      The term "videophone" shall mean and refer to a telephone with a video screen capable of full duplex (bi-directional), high-quality video and audio transmissions for visual, real-time communication.

j)      The term "transferring facility" shall mean and refer to a health care entity that initiates contact with Burke Health and Rehabilitation Center seeking: bed availability, services (including rehabilitation services), accommodations or placement for their patient.

11.       Equitable Relief

Burke Health and Rehabilitation Center shall not discriminate against any individual, including any Patient or Companion, on the basis of disability in the full and equal enjoyment of Burke Health and Rehabilitation Center's goods, services, facilities, privileges, advantages, or accommodations.

Upon the effective date of this Settlement Agreement, Burke Health and Rehabilitation Center shall provide appropriate auxiliary aids and services, including qualified sign language interpreters, to individuals who are deaf or have hearing loss, where necessary to ensure effective communication, unless Burke Health and Rehabilitation Center can demonstrate that an undue burden or a fundamental alteration would result.

Interpreter services, and/or other auxiliary aids and services, will be offered free of charge to Burke Health and Rehabilitation Center Patients and Companions. Nothing in this Settlement Agreement shall prohibit Burke Health and Rehabilitation Center from seeking reimbursement for the cost of interpreter services from a third-party payor to the extent allowed by applicable law.

Unless otherwise indicated, within sixty (60) days after the effective date of the Settlement Agreement, Burke Health and Rehabilitation Center agrees to fully implement each of the following practices and policies:

11.1     Assessment of Disability. The determination of appropriate auxiliary aids and services, and the timing, duration, and frequency with which they will be provided, must be made on the arrival of the Patient or Companion. Consulting with the Patient, Burke Health and Rehabilitation Center shall perform a communication assessment as part of the initial Patient assessment and document the results in the Patient's medical chart. In the event that communication is not effective, Burke Health and Rehabilitation Center will reassess, in consultation with the Patient or Companion, as applicable, which auxiliary aids and services are needed to ensure effective communication and document the results in the patient's chart.

If a Patient and/or Companion does not request auxiliary aids or services, but Burke Health and Rehabilitation Center has reason to believe that such person would benefit from auxiliary aids or services, Burke Health and Rehabilitation Center will specifically inform the Patient and/or Companion that auxiliary aids and services are available free of charge.

11.2     Assessment of Need for Auxiliary Aids.  The determination of appropriate auxiliary aids or services, and the timing, duration, and frequency with which they will be provided, will be made by the ADA Coordinator in consultation with the Patient or Companion.  In making these determinations, the ADA Coordinator shall take into account all relevant facts and circumstances, including without limitation the following:

a)     the nature, length, complexity, and importance of the communication at issue;

b)     the individual's communication skills and knowledge;

c)     the Patient's health status or changes thereto;

d)     the Patient's and/or Companion's request for, or statement of, a need for a qualified sign language interpreter,

e)     the transferring facility's request for, or statement of a need for, a qualified sign language interpreter for the Patient or Companion.

11.3     Qualified Sign Language Interpreters. Burke Health and Rehabilitation Center shall provide qualified sign language interpreters whenever needed for effective communication, including but not limited to the following circumstances: obtaining a Patient's medical history or description of ailment; explaining or discussing a Patient's diagnosis or prognosis; explaining or discussing procedures, tests, and treatment; explaining or discussing medications prescribed; and explaining or providing instructions during therapy sessions unless Burke Health and Rehabilitation Center can demonstrate that an undue burden or fundamental alteration would result.

11.4    Publication of Policies and Procedures. Burke Health and Rehabilitation Center shall develop and maintain a written policy explaining that they will provide auxiliary aids and services, including qualified interpreters, where such auxiliary aids and services are needed to ensure effective communication with Patients and Companions. Burke Health and Rehabilitation Center agrees to publicize the policies and procedures contained in this Settlement Agreement in all orientation and staff training materials.  

Within thirty (30) days of the effective date of this Settlement Agreement, Burke Health and Rehabilitation Center shall conspicuously post and maintain the following Notice in the lobby and wherever a Patient's Bill of Rights is required by law to be posted.

In compliance with the Americans with Disabilities Act, qualified interpreters and other auxiliary aids and services are available free of charge to people who are deaf or have hearing loss.

This Notice will be printed in bold font, with a character height for all words of 5/8 inch to 2 inches on a contrasting white background and will include the international symbol for interpreters.

11.5     Interpreters. Within thirty (30) days of the effective date of this Settlement Agreement, Burke Health and Rehabilitation Center shall provide the department with a copy of their contract for sign language interpreter services.

11.6    Interpreter Availability. For the duration of a Patient's treatment at Burke Health and Rehabilitation Center, Burke Health and Rehabilitation Center shall ensure that at least one qualified sign language interpreter is available or on call for a Patient or Companion who is deaf or has hearing loss and whose primary means of communication is sign language.

11. 7    Records.  Upon the effective date of this Settlement Agreement, Burke Health and Rehabilitation Center will maintain a log of each request for an auxiliary aid or service. The log will record the time and date of the request; the name of the individual who made the request; the name of the individual for whom the auxiliary aid or service is being requested (if different from the requestor); the specific auxiliary aid or service requested; the time and date of the scheduled appointment (if a scheduled appointment was made); the time and date the auxiliary aid or service was provided; the type of auxiliary aid or service provided if different from what was requested; and, if applicable, a statement and explanation as to why the requested auxiliary aid or service was not provided, including a description of the proposed, alternative effective communication that Burke Health and Rehabilitation Center offered to the Patient or Companion.

11.8     Training.  Within sixty (60) days of the effective date of this Settlement Agreement, and annually thereafter, Burke Health and Rehabilitation Center will provide mandatory ADA training for all their employees and contract employees affiliated with Burke Health and Rehabilitation Center who might interact with Patients and/or Companions.  Burke Health and Rehabilitation Center will provide this ADA training to their employees and contract employees for the duration of this Agreement.  The training will address the following:

a)     the degrees of hearing impairment;

b)     the importance of promptly identifying the communication needs and preferences of persons who are deaf or have hearing loss;

c)     the required charting procedures governing requests for auxiliary aids and services (See 11.1 and 11.7);

d)     types of auxiliary aids and services available at Burke Health and Rehabilitation Center;

e)      proper use and role of qualified interpreters;

f)      proper use and role of video remote interpreting services;

g)     procedures to schedule a qualified sign language interpreter as quickly as possible when necessary;

h)     staff responsibility to notify the ADA Coordinator of a Patient and/or Companion requesting interpreter services as soon as the Patient is scheduled for admissions, tests, therapy session, or other health care service;

i)      responsibility of staff members to notify the ADA Coordinator that a transferring facility has requested interpreter services on behalf of a Patient seeking admission to Burke Health and Rehabilitation Center;

j)     responsibility to communicate Burke Health and Rehabilitation Center's obligation to provide interpreter services free of charge, in response to an ECIN/AllScripts (or any electronic system) request for qualified interpreter services; and

k)     and any other applicable requirements of this Settlement Agreement.

The ADA Coordinator shall consultant with an outside disability advocacy group to conduct the initial trainings described in this paragraph of the Settlement Agreement.

11.9     Burke Health and Rehabilitation Center shall provide the training specified above in paragraph 11.8 to new employees and contract employees as part of their initial orientation but no later than sixty (60) days of their start date with Burke Health and Rehabilitation Center.

11.10   Within six (6) months of the effective date of this Settlement Agreement, and annually thereafter during the term of this Settlement Agreement, Burke Health and Rehabilitation Center shall provide a certification to the Department to confirm the completion of the staff training described in Paragraph 11.8; the certification shall include the dates of the training; executed sign-in sheets for each training and the names and job titles of the staff who attended each training session.

IV.           Enforcement

12.       Notice, Reporting and Monitoring Requirements

12.1     Upon request, Burke Health and Rehabilitation Center shall provide the log described in paragraph 11.7 to the Department for its review.

12.2     Unless otherwise provided, all notices, reports or other such documents required by this Settlement Agreement shall be submitted to the Department as follows:

For notices to the Department:
Rebecca B. Bond, Chief
Attention: Janine Freeman, Trial Attorney
Disability Rights Section
Civil Rights Division
United States Department of Justice
950 Pennsylvania Avenue
New York Avenue Building, Room 4008
Washington, DC 20530
202-305-8710
202-307-1197 (facsimile)

12.3     During the term of this Settlement Agreement, Burke Health and Rehabilitation Center shall notify the Department if any individual brings any lawsuit, complaint, charge, or grievance alleging that Burke Health and Rehabilitation Center failed to provide any auxiliary aids or services to any individual with a disability. Such notification must be provided in writing via certified mail within fifteen (15) days of the day when Burke Health and Rehabilitation Center receives oral or written notice of the allegation and will include, at a minimum, the nature of the allegation; the name of the individual(s) making the allegation; and any documentation possessed by Burke Health and Rehabilitation Center or any of its agents or representatives relevant to the allegation(s).

12.4     The Department may review compliance with this Settlement Agreement at any time. If the Department believes that Burke Health and Rehabilitation Center has failed to comply in a timely manner with any requirement of this Settlement Agreement without obtaining sufficient advance written agreement with the Department for a modification of the relevant terms, the Department will notify Burke Health and Rehabilitation Center in writing, and will attempt to resolve the issue or issues in good faith. If the Department is unable to reach a satisfactory resolution of the issue or issues raised within thirty (30) days of the date it provides notice to Burke Health and Rehabilitation Center, the Department may institute a civil action in federal district court to enforce the terms of this Settlement Agreement or Title III of the ADA and may, in such action, seek any relief available under law.

12.5     For purposes of paragraph 12.4, it is a violation of this Settlement Agreement for Burke Health and Rehabilitation Center to fail to comply in a timely manner with any of the requirements in this Settlement Agreement without obtaining sufficient advance written agreement with the Department for an extension of the relevant time frame imposed by the Settlement Agreement.

12.6     Failure by the Department to enforce this Settlement Agreement with regard to any deadline or any other provision herein shall not be construed as a waiver of the Department's right to enforce other deadlines and provisions of this Settlement Agreement.

13.       Miscellaneous

13.1     Entire Agreement.  This Settlement Agreement constitutes the entire agreement between the United States and Burke Health and Rehabilitation Center 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 Settlement Agreement shall be enforceable. This Settlement Agreement does not purport to remedy any other potential violations of the ADA or any other federal law. This Settlement Agreement does not affect the continuing responsibility of Burke Health and Rehabilitation Center to comply with all aspects of the ADA.

13.2     Term of Settlement Agreement.  This Settlement Agreement will remain in effect for two (2) years from its effective date. The effective date of this Settlement Agreement is the date of the last signature below.

13.3      Severability.   If any term of this Settlement Agreement is determined by any court to be unenforceable, the other terms of this Settlement Agreement shall remain in full force and effect, provided, however, that if the severance of any such provision materially alters the rights or obligations of the Parties, the Department and Burke Health and Rehabilitation Center shall engage in good faith negotiations in order to adopt mutually agreeable amendments to this Settlement Agreement as may be necessary to restore the parties as closely as possible to the initially agreed upon relative rights and obligations.

13.4     Headings.  The paragraph headings in this Settlement Agreement are for convenience only and shall not affect in any way the language of the provision to which they refer.

13.5     Settlement Agreement Binding on Parties and Successors in Interest.   This Settlement Agreement shall be binding on the Department and on Burke Health and Rehabilitation Center and its agents, employees, shareholders, partners, and associates. In the event Burke Health and Rehabilitation Center seeks to transfer or assign all or part of their interest in any entity covered by this Settlement Agreement, and the successor or assignee intends to carry on the same or similar use of the entity, as a condition of sale, Burke Health and Rehabilitation Center shall obtain the written accession of the successor or assignee to any obligations under this Settlement Agreement for the remaining term of this Settlement Agreement.

13. 6    Signatories Bind Parties.  The person signing this Settlement Agreement for the Rehabilitation Centers represents that he is authorized to bind Burke Health and Rehabilitation Center to this Settlement Agreement.