SETTLEMENT AGREEMENT BETWEEN

THE UNITED STATES OF AMERICA AND

CSP NOVA LLC D/B/A/ COMMONWEALTH HEALTH & REHAB CENTER

U.S. DEPARTMENT OF JUSTICE DJ # 202-79-277

BACKGROUND

1. The parties (“Parties”) to this Settlement Agreement (“Agreement”) are the United States of America (“United States”) and CSP NOVA d/b/a Commonwealth Health & Rehab Center (“CHRC”), a skilled nursing facility located in Fairfax County, Virginia.
2. This matter was initiated by a complaint filed with the United States against CHRC, 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. Specifically, Complainant S.K., Complainant K.A. and Complainant M.K. (the “Complainants”) alleged that CHRC personnel failed to provide sign language interpretive services during S.K.’s 27 day stay at the facility when necessary to ensure effective communication with the Complainants, who are deaf.
3. Complainant S.K. is deaf and uses American Sign Language (“ASL”) as his primary means of communication. S.K. was in a motorcycle accident and resided at CHRC for 27 days, from November 18 through December 15, 2011 for physical rehabilitation. Complainant S.K. was accompanied by two companions throughout his stay at CHRC. Complainant K.A., who is deaf, is S.K.’s Mother and was with S.K. during his 27 day stay at CHRC, where she slept on a couch in his room. As S.K.’s Mother, K.A. has a known relationship or association with an individual with a disability. 42 U.S.C. § 12182(b)(1)(E); 28 C.F.R. § 36.205. S.K.’s sister, M.K., who is deaf, was with S.K. for most of the time he resided at CHRC, and as S.K.’s sister she has a known relationship or association with an individual with a disability. 42 U.S.C. § 12182(b)(1)(E); 28 C.F.R. § 36.205.
4. Complainants allege that on multiple occasions, Complainants requested an ASL interpreter so they could communicate with the CHRC’s clinical staff about S.K.’s medical condition and treatment options, including during a battery of assessments conducted by CHRC’s clinical staff, physical therapy appointments, and discharge planning. Complainants further allege that their requests were denied on each occasion. Complainant S.K. alleges that a physician providing services to S.K. while he was at CHRC placed a pen in S.K.’s broken right hand and asked him to communicate in writing. Further, Complainants K.A. and M.K. allege that CHRC’s staff enlisted them to facilitate communication with S.K. by asking them to translate his ASL signs into written words.

INVESTIGATION AND FINDINGS

5. The United States Attorney for the Eastern District of Virginia (“U.S. Attorney’s Office”) is authorized under 42 U.S.C.§ 12188 and 28 C.F.R. Part 36, Subpart E, to investigate the allegations of the complaint in this matter to determine CHRC’s compliance with title III of the ADA. It has the authority to, where appropriate, negotiate and secure voluntary compliance agreements, and to bring civil actions enforcing title III of the ADA should it fail to secure voluntary compliance.
6. Complainants are deaf and as such are individuals with a “disability” within the meaning of the ADA. 42 U.S. C. § 12102; 28 C.F.R. § 36.104.
7. CSP NOVA LLC is a limited liability company which owns and operates CHRC, which is licensed by the Commonwealth of Virginia. CHRC is a “public accommodation” within the meaning of title III of the ADA, 42 U.S.C. § 12181(7)(F), and its implementing regulation at 28 C.F.R. § 36.104.
8. The ADA prohibits discrimination on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations by a public accommodation. 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a).
9. On the basis of its investigation, the U.S. Attorney’s Office determined that CHRC denied S.K., his Mother (K.A.) and Sister (M.K.) appropriate auxiliary aids and services necessary for effective communication during S.K.’s 27 day stay at CHRC, including during the following: (a) a battery of assessments and examinations that CHRC conducts on new patients, including, a pain assessment, a fall risk evaluation, and social service assessment; (b) an interdisciplinary team care planning meeting; (c) multiple examinations by physicians who were providing services to S.K. while he was at CHRC; (d) 16 physical therapy appointments; (e) 17 occupational therapy appointments; (f) when seeking S.K.’s consent to medical care; (g) when instructing S.K.’s Mother and Sister on how to change his bandages; and (h) discharge planning. The U.S. Attorney’s Office has also determined that a CHRC employee denied the complainants’ request for ASL interpreters because he did not wish to pay for them. CHRC has informed the U.S. Attorney's Office that the employee who denied the request for an ASL interpreter has since been separated from employment with CHRC in light of this investigation. CHRC’s failure to provide ASL interpreters is in violation of 42 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303. CHRC further violated the ADA by relying upon K.A. and M.K. to act as communication facilitators with S.K. during interactions between S.K. and the facility’s clinical staff. Specifically, CHRC enlisted K.A. and M.K. to translate S.K.’s ASL signs into hand written notes during various interactions with physicians, physical therapists, and other clinical staff. This violated the ADA prohibition on associational discrimination. 42 U.S.C. § 12182(b)(1)(E); 28 C.F.R. § 36.205. CHRC fully cooperated in the U.S. Attorney’s Office investigation in this matter.
10. By entering into this Agreement, CHRC does not admit to the truth of the factual allegations contained in this Agreement, nor admit to any violation of law, liability, fault, misconduct, or wrongdoing. 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 “CHRC Personnel” means all employees, both full and part-time, and independent contractors with contracts to work on a substantially full-time basis for the Skilled Nursing Facility or on a part-time basis exclusively for the Skilled Nursing Facility), including, without limitation, nurses, physicians, social workers, 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 video remote interpreting (VRI) service or an on-site appearance, is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators. 28 C.F.R. § 36.104.
14. The term “Patient” shall be broadly construed to include any individual who is seeking or receiving the goods, services, facilities, privileges, advantages, or accommodation of CHRC.
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. “Effective Date of this Settlement Agreement” means the date of the last signature below.

EQUITABLE RELIEF

A. Prohibition of Discrimination

17. Nondiscrimination. CHRC shall provide appropriate auxiliary aids and services, including qualified interpreters, where such aids and services are necessary to ensure effective communication with Patients and Companions who are deaf or hard of hearing. Pursuant to 42 U.S.C. § 12182(a), CHRC 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 skilled nursing facility as required by this Agreement and the ADA.
18. Discrimination by Association. CHRC shall not deny equal services, accommodations, or other opportunities to any individual because of the known relationship of that person with someone who is deaf or hard of hearing. See 42 U.S.C. § 12182(b)(1)(E).
19. Retaliation and Coercion. CHRC 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 this Agreement or the ADA. See 42 U.S.C. § 12203.

B. Effective Communication

20. Appropriate Auxiliary Aids and Services. Pursuant to 42 U.S.C. § 12182(b)(2)(A)(iii), CHRC 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 paragraphs 21 & 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 31 of this Agreement. CHRC will advise Patients and Companions who require auxiliary aids or services that these are available throughout the Patient’s stay.
21. 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 CHRC Staff in consultation with the Patient and/or Companion with a disability. The assessment made by CHRC Staff will take into account all relevant facts and circumstances, including, for example, the individual’s communication skills and knowledge, and the nature and complexity of the communication needs at issue. A Model Communication Assessment Form is attached to this Agreement as Exhibit A, from which CHRC will develop a similar form within thirty (30) days of the Effective Date of this Agreement to be used at CHRC. The CHRC Lead ADA Administrator and Auxiliary ADA Administrators shall ensure that a completed Form is obtained from each individual patient or companion who agrees to complete the Form. CHRC Staff shall provide assistance in completing the Form at the Patient’s or Companion’s request. After being completed, the Form(s) shall be maintained in the patient’s medical record, whether kept in paper or electronic form. If a patient identifies a companion who is not presently at CHRC but is expected at CHRC during the patient’s stay, CHRC Staff shall provide the patient with the contact information of the Lead ADA Administrator who can assist the companion in completing a Deaf or Hard of Hearing Communication Request Form in advance of arriving at CHRC. The Lead ADA Administrator will also provide the contact information of CHRC Staff who can assist the Companion in completing the Form at CHRC (if the Form is not completed in advance). If at any point during a patient’s stay, a companion identifies himself or herself as deaf or hard of hearing, CHRC shall promptly provide him/her with the Form, if it has not done so already.
22. 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 CHRC learns that a deaf or hard-of-hearing Patient will be using its services or on the arrival of the deaf or hard-of-hearing Patient or Companion at CHRC, whichever is earlier. CHRC Personnel will perform an assessment (see paragraph 21) as part of each initial inpatient assessment and document the results in the Patient’s electronic medical chart. In the event that communication is not effective, CHRC Personnel will reassess 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.
23. Medical Chart Label. The patient’s medical chart shall be conspicuously labeled (such as with a sticker, indicator, or label on the cover) to alert CHRC Personnel to the fact that the Patient and/or Companion is deaf or hard of hearing. The chart shall indicate the mode of communication requested by and provided to the Patient and/or Companion.
24. ADA Administrators. CHRC will designate at least one employee as an ADA Administrator or ADA Co-Administrators, and at least one such employee 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 immediate access to, and proper use of, the appropriate auxiliary aids and services, including qualified interpreters. The ADA Administrator or ADA Co-Administrators 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. CHRC will circulate and post broadly within CHRC the name, telephone number, function, and office location of the Administrator(s), including a TTY telephone number, through which the ADA Administrator or Co-Administrator 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. The ADA Administrator or Co-Administrators will be responsible for the complaint resolution mechanism described in paragraph 26 of this Agreement. The ADA Administrator or Co-Administrators will be designated by CHRC 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. CHRC will maintain a log in which requests for qualified interpreters on site or through video remote services will be documented. The log will indicate the time and date the request was made, the name of the Patient or Companion who is deaf or hard-of-hearing, the time and date of the scheduled appointment (if a scheduled appointment was made), the nature of the auxiliary aid or service provided, and the time and date the appropriate auxiliary aid or service was provided. If no auxiliary aid or service was provided, the log shall contain a statement why the auxiliary aid and service was not provided. Such logs will be maintained by the ADA Administrator for the entire duration of the Agreement, and will be incorporated into the semi-annual Compliance Reports as described in paragraph 50 of this Agreement.
26. Complaint Resolution. CHRC will utilize its established grievance resolution mechanism for the investigation of disputes regarding effective communication with Patients and Companions, who are deaf or hard-of-hearing. CHRC will maintain records of all grievances regarding effective communication, whether oral or written, made to CHRC and actions taken with respect thereto. At the time CHRC completes its assessment described in paragraph 21 and advises the Patient and/or Companion of its determination of which appropriate auxiliary aids and services are necessary, CHRC 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 regarding the use of appropriate auxiliary aids and services shall be completed within seven (7) days of receipt of the complaint. Copies of all grievances related to provision of services for deaf or hard-of-hearing Patients and/or Companions and the responses thereto will be maintained by the ADA Administrator for the entire duration of the Agreement, and will be incorporated into the semi-annual Compliance Reports as described in paragraph 50 of this Agreement.
27. Prohibition of Surcharges. All appropriate auxiliary aids and services required by this Agreement will be provided free of charge to the deaf or hard-of-hearing Patient and/or Companion.
28. Record of Need for Auxiliary Aid or Service. CHRC will take appropriate steps to ensure that all CHRC 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 electronic medical record.

C. 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 visitors. When an interpreter is needed, the CHRC 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. Discussing a patient’s symptoms and medical condition, medications, and medical history;
    2. Explaining medical conditions, treatment options, tests, medications, surgery and other procedures;
    3. Providing a diagnosis and recommendation for treatment;
    4. Communicating with a patient during treatment, including physical and occupational therapies, testing procedures, and during physician’s rounds;
    5. Obtaining informed consent for treatment;
    6. Providing instructions for medications, post-treatment activities and follow-up, treatments;
    7. Providing mental health services, including group or individual counseling for patients and family members;
    8. Providing information about blood or organ donations;
    9. Discussing powers of attorney, living wills and/or complex billing and insurance matters; and
    10. During educational presentations, such as nutrition and weight management programs, and CPR and first-aid training.
30. Chosen Method for Obtaining Interpreters. Within thirty (30) days after execution of this Agreement, CHRC will identify one or more interpreter services and will make appropriate arrangements with said services to provide qualified on site interpreters as well as VRI services at the request of CHRC.
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 deaf or hard-of-hearing Patient or Companion less than two (2) hours before the Patient's appearance at CHRC for examination or treatment. For non-scheduled interpreter requests, CHRC Personnel will complete the assessment described in paragraphs 21 above. The interpreter shall be provided no more than (a) two (2) hours from the time CHRC completes the assessment if the service is provided through a contract interpreting service or a staff interpreter who is located off-site or (b) 30 minutes from the time CHRC 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, CHRC Personnel will take the following additional steps:
       1. CHRC 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 known to CHRC and request their services;
       2. Inform the ADA Coordinator of the efforts made to locate an interpreter and solicit assistance in locating an interpreter;
       3. Inform the Patient or Companion (or a family member or friend, if the Patient or Companion is unavailable) 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, such as contacting a qualified interpreter known to that person; 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, CHRC will complete the assessment described in paragraphs 21 above in advance, and, when an interpreter is appropriate, CHRC 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, CHRC will immediately call the interpreter service for another qualified interpreter.
    3. Data Collection on Interpreter Response Time and Effectiveness. CHRC will monitor the performance of each qualified interpreter service it uses to provide communication to deaf or hard-of-hearing Patients or Companions through its established process of monitoring outside vendors. As part of the Auxiliary Aid and Service Log, described in paragraph 25, CHRC shall collect information regarding response times for each request for an interpreter.
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, CHRC 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) A 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; or significant pain; or due to space limitations in the room. Within 90 days of the Effective Date of this Agreement, CHRC shall establish the capability for offering VRI services. CHRC is not responsible for power outages or service interruption due to acts of God or third party problems. 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 CHRC’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.
33. Notice to Patients and Companions, who are Deaf or Hard-of-Hearing. As soon as CHRC Personnel have determined that a qualified interpreter is necessary for effective communication with a deaf or hard-of-hearing Patient or Companion, CHRC will inform the Patient or Companion (or a family member or friend, if the Patient or Companion is not available) of the current status of efforts being taken to secure a qualified interpreter on his or her behalf. CHRC will provide additional updates to the Patient or Companion as necessary until an interpreter is secured. Notification of efforts to secure a qualified interpreter does not lessen CHRC’s obligation to provide qualified interpreters in a timely manner as required by paragraph 31 of this Agreement.
34. Other Means of Communication. CHRC agrees that between the time an interpreter is requested and the interpreter is provided, CHRC Personnel will continue to try to communicate with the deaf or hard-of-hearing Patient or Companion 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 CHRC’s obligation to provide qualified interpreters in a timely manner as required by paragraph 31 of this Agreement.
35. Restricted Use of Certain Persons to Facilitate Communication. In accordance with its policy, CHRC will not rely on an adult friend or family member of the individual with a disability to interpret except in an emergency involving an imminent threat to the safety of an individual or the public where there is no interpreter available; or where the individual with a disability specifically requests that the adult friend or family member interpret, the accompanying adult agrees to provide such assistance, and reliance on that adult for such assistance is appropriate under the circumstances. CHRC will not rely on a minor child or a patient to interpret except in an emergency involving an imminent threat to the safety of an individual or the public where there is no interpreter available.
36. Individuals May Revise Their Communication Requests. If a patient and/or companion indicates to CHRC Personnel that he or she wants an interpreter after failing to request one on the Deaf or Hard of Hearing Communication Request Form, CHRC Personnel shall provide the Patient or Companion with a new Deaf or Hard of Hearing Communication Request Form. CHRC Personnel shall then comply with the requirements of paragraphs 21 and 22 as if the patient or companion had originally requested an interpreter. Both the original Deaf or Hard of Hearing Communication Request Form and the new one shall be kept in the patient’s medical chart.

D. Telephones and Related Equipment

37. Public Telephones. As soon as practicable but no later than ninety (90) days after the Effective Date of this Settlement Agreement, CHRC will provide the following:
    1. TTY’s in public areas. CHRC shall provide either one permanent or one portable TTY per floor of the facility. See 28 CFR § 36.104 (title III) (defining the “2010 Standards” as the requirements set forth in appendices B and D to 36 CFR part 1191 and the requirements contained in subpart D of 28 CFR part 36)(hereinafter “2010 Standards”). 2010 Standards §§ 217.4.1 and 217.4.2. Each such TTY shall comply fully with § 704.4 of the 2010 Standards.
    2. Shelves and outlets. Wherever portable TTY’s are made available as an alternative to installed TTY’s, CHRC will provide shelves and electrical outlets that comply with §§ 217.5 and 704.5 of the 2010 Standards.
    3. Signs indicating the location of TTY’s.

       (1) Wherever public telephones are available but TTY’s are not permanently installed, CHRC will post directional signs complying with the 2010 Standards §§ 216.9.2, 703.5 and 703.7.2.2. Such signs will indicate the location of the nearest portable or permanently installed TTY’s; and

       (2) Where signs provide direction to public pay telephones, CHRC shall also provide directional signs complying with the 2010 Standards §§ 216.9.2, 703.5 and 703.7.2.2 to public TTYs; and

       (3) Wherever TTY’s are permanently installed, CHRC will post signs complying with §§ 216.9.1 and 703.7.2.2of the 2010 Standards to indicate their location.

    4. Storage and availability of equipment. Portable equipment required by this section for use in public areas shall be stored in a place or places that are readily accessible to all CHRC Personnel who have client contact at all times of the day and night. All CHRC Personnel will be notified of the storage location that is closest to their work area(s). The equipment is to be stored at the appropriate supervised location (e.g., nurses' station, admission desk, switchboard, etc.) closest to the public phone for which the equipment is to be made available. Such equipment shall be made available to individuals who are deaf or hard-of-hearing as soon as practicable but no more than thirty (30) minutes from the time of the person’s request; except to the extent that it would compromise good medical care and/or the safety of other patients at CHRC. The ADA Administrator (as discussed in paragraph 24) will be responsible for ensuring that this equipment remains readily accessible.
38. Telephones in Patient Rooms. Within ninety (90) days of the Effective Date of this Settlement Agreement:
    1. Portable access technology – defined. CHRC 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. CHRC will ensure that each volume control telephone and each visual notification device for incoming telephone calls complies fully with § 704.3 of the 2010 Standards.
    2. Portable access technology - general obligation. CHRC 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 of CHRC 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, CHRC 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 within four (4) feet of the telephone connection to facilitate the use of a TTY device. CHRC will provide a heavy-duty extension cord for any patient room that is not so equipped.
    4. Timeliness. Within ninety (90) days of the Effective Date of this Settlement Agreement, CHRC will make the equipment required by this section available within thirty (30) minutes of a Patient’s arrival in a patient room, regardless of the hour of the day or night. CHRC will notify all relevant Personnel of the availability and location of this equipment.
39. Televisions and Caption Decoders. Within ninety (90) days of the Effective Date of this Settlement Agreement, CHRC will develop a policy to ensure that Patients and Companions with hearing impairments have priority use of televisions with closed captioning capabilities. 28 C.F.R. § 36.303(e).
40. Clearly stated directions for use of the closed caption capability shall be included in the Patient Guide or otherwise made available in each patient room or public area containing a television with captioning capability. The directions for operating the closed caption function shall also accompany all closed caption decoders for standard television sets.

D. Notice to Community

41. Policy Statement. Within ninety (90) days of the entry of this Agreement, CHRC shall post and maintain signs of conspicuous size and print at all CHRC admitting stations and wherever a Patient’s Bill of Rights is required by law to be posted. Such signs shall be to the following effect:

    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 CHRC Personnel or the Information Office at _____________(voice/TTY), room ______.

    These signs will include the international symbols for “interpreters” and “TTYs.”

42. Website. CHRC will include on its website the policy statement described above.
43. Patient Handbook. CHRC will include in all future printings of 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 CHRC programs.

    Please ask your nurse or other CHRC Personnel for assistance, or contact the Information Office at ______________ (voice or TTY), room _________________.

CHRC will also include in its Patient Handbook a description of its complaint resolution mechanism.

E. Notice to CHRC Personnel and Physicians

44. CHRC shall publish on its intranet a policy statement regarding the CHRC’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 skilled nursing facility 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 ________________.

CHRC will deploy this policy on the intranet within ninety (90) days of the Effective Date of this Agreement to all CHRC Personnel and both employed and affiliated physicians (physicians with practicing or admitting privileges), and to all new CHRC Personnel and newly employed or affiliated physicians upon their affiliation or employment with CHRC.

F. Training

45. Training of ADA Administrator. CHRC 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. to promptly identify communication needs of Patients and Companions who are deaf or hard-of-hearing and which auxiliary aids are effective in which situations;
    2. to secure qualified interpreter services as quickly as possible when necessary;
    3. to encourage clinical staff members to notify CHRC of deaf and hard-of-hearing Patients and Companions as soon as Patients schedule admissions, tests, rehabilitation, or other health care services at the CHRC;
    4. 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);
    5. how and when to use video remote interpreting services;
    6. making and receiving calls through TTYs and the relay service; and
    7. CHRC’s complaint resolution procedure described in paragraph 26 of this Agreement.
46. Training of CHRC Personnel. Except for affiliated physicians, who are governed by paragraph 49 of this Agreement, CHRC will provide mandatory annual in-service training to all CHRC Personnel.
    1. The training will address the needs of deaf and hard-of-hearing Patients and Companions and will include the following objectives:
       1. promptly identify communication needs of Patients and Companions who are deaf or hard-of-hearing;
       2. to secure qualified interpreter services or video remote interpreting services as quickly as possible when necessary; and
       3. 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 CHRC Personnel who receive incoming telephone calls from the public will receive instructions by CHRC on using TTYs or relay services to make, receive, and transfer telephone calls and will receive training generally on the existence in CHRC 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 ninety (90) days of the Effective Date of this Agreement and will be conducted annually thereafter.
48. Training Attendance Sheets. CHRC will maintain in electronic form for the duration of this Agreement, confirmation of training conducted pursuant to paragraphs 45-47 of this Agreement, which will include the names and respective job titles of the attendees, as well as the date and time of the training session.
49. Training of Affiliated Physicians. CHRC will create and send an email blast advising affiliated physicians of its policy on the communication needs of Patients or Companions who are deaf or hard of hearing and will invite all physicians who are affiliated with CHRC (admitting or other privileges, etc.) to complete computerized training. This email will direct affiliated physicians to CHRC’s web page which will include: (1) CHRC’s Policy Statement for persons working at the skilled nursing facility as described in paragraph 41 and any relevant forms; and (2) a request that physicians’ staff members notify CHRC of deaf and hard-of-hearing Patients and Companions as soon as they schedule admissions, tests, or other health care services at the skilled nursing facility.

G. Reporting, Monitoring, and Violations

50. Compliance Reports. Beginning six months after the Effective Date of this Agreement and every six months thereafter for the entire duration of the Agreement, CHRC 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 information required in Auxiliary Aid and Service Log described in paragraph 25; and
    2. the number of complaints received by CHRC from deaf and hard-of-hearing Patients and Companions regarding auxiliary aids and services and/or effective communication, and the resolution of such complaints including any supporting documents, as described in paragraph 26.

CHRC 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.

51. Complaints. During the term of this Agreement, CHRC 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 CHRC failed to provide auxiliary aids and services to deaf or hard-of-hearing Patients or Companions 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 CHRC 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 CHRC relevant to the allegation. CHRC will reference this provision of the Agreement in the notification to the U.S. Attorney’s Office.

H. Compensatory Relief for Complainants and Release

52. Within ten (10) days after receiving the complainants’ signed releases (a blank release form is at Exhibit B), CHRC will send three checks as follows: (1) in the amount of eighty thousand ($80,000) dollars made out to Complainant S.K.; (2) in the amount of forty thousand ($40,000) dollars made out to Complainant K.A.; and (3) in the amount of forty thousand ($40,000) dollars made out to Complainant M.K. These check are compensation to the Complainants pursuant to 42 U.S.C. § 12188(b)(2)(B), for the effects of the alleged discrimination suffered as described in paragraph 9. The checks shall be mailed to:

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

I. Payment of Civil Penalty to the United States

53. Within fifteen (15) days of the Effective Date of this Agreement, the CHRC will pay to the United States of America the sum of two thousand five hundred ($2,500) dollars pursuant to 42 U.S.C. §12188(b)(2)(C).

J. Enforcement and Miscellaneous

54. Duration of the Agreement. This Agreement will be in effect for three (3) years from the Effective Date.
55. Enforcement. 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 4, except as provided in paragraph 56. 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 CHRC 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.
56. Compliance Review and Enforcement. 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 any requirement thereof has been violated by instituting a civil action in U.S. District Court. If the United States believes that this Agreement or any portion of it has been violated, it will raise its claim(s) in writing with CHRC, and the parties will attempt to resolve the concern(s) in good faith. The United States will allow CHRC thirty days from the date it notifies CHRC 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.
57. Entire Agreement. 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.
58. Binding. 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. Each party has a duty to so inform any such successor in interest.
59. Non-Waiver. Failure by any party 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.
60. The effective date of this Settlement Agreement is the date of the last signature below.
61. 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.

    FOR THE UNITED STATES:

    DANA J. BOENTE
    Acting United States Attorney
    Eastern District of Virginia

    By:/s/ Steven Gordon
    STEVEN GORDON
    Assistant United States Attorney
    United States Attorney’s Office
    Eastern District of Virginia
    Justin W. Williams U.S. Attorney’s Bldg.
    2100 Jamieson Avenue
    Alexandria, Virginia 22314
    Telephone: 703-299-3817
    steve.gordon@usdoj.gov

    DATED: 2/28/14

     

    For CSP NOVA d/b/a Commonwealth Health & Rehab Center

     

    By:/s/ Sandra M. Pate
    Sandra M. Pate
    Facility Administrator
    CSP NOVA d/b/a Commonwealth Health & Rehab Center
    4315 Chain Bridge Road
    Fairfax, VA 22030

    DATED: 2/28/2014