UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JANET DeVINNEY,
Plaintiff,
and
UNITED STATES OF AMERICA,
Plaintiff-Intervenor,
Civil No. 97-276-P-C
v.
MAINE MEDICAL CENTER,
Defendant.
re:
providing auxiliary aids and services, including qualified sign language interpreters, where such aids and services are necessary for effective communication with persons who are deaf or hard of hearing or who have other communication-related disabilities
INTRODUCTION
This action arose initially out of complaints filed by plaintiff Janet DeVinney and the United States of America alleging the failure of Maine Medical Center to provide auxiliary aids and services, including qualified sign language interpreters, where such aids and services were necessary for effective communication with persons who are deaf or hard of hearing or who have other communication-related disabilities, as required by Title III of the Americans With Disabilities Act, 42 U.S.C. §§ 12181-89 (hereinafter AADA@), Title III regulations, 28 C.F.R. pt. 36, Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 ("Section 504"), Section 504 regulations, 45 C.F.R. pt. 84, and the Maine Human Rights Act, 5 M.R.S.A. ' 4592.
The intent of this Consent Decree is twofold: (1) to provide deaf and hard of hearing persons with an equal opportunity to receive and benefit from the hospital's goods, services and accommodations, and (2) to facilitate accurate, effective, timely and dignified communication between hospital personnel and persons who are deaf or hard of hearing. Effective communication is critical in virtually all medical contexts. Receiving accurate information from the patient or family members is usually basic to diagnoses. Successful treatment often depends on whether the patient and involved family members understand diagnoses and prognoses and have accurate information about procedures and medications.
Maine Medical Center is committed to full compliance with federal and state law barring discrimination on the basis of disability. Maine Medical Center recognizes its legal obligations to ensure effective communication with persons who are deaf or hard of hearing. The medical center is committed to pro-actively assessing communication needs as well as providing quality care for all of its patients, whether or not they are persons who are deaf or hard of hearing. Sign language interpreters and other auxiliary aids and services are necessary to provide equal access to hospital services for deaf and hard of hearing individuals.
Ms. DeVinney and the United States each have an interest both in the particulars of this case and in working to ensure effective communication between deaf and hard of hearing individuals and Maine Medical Center employees. Maine Medical Center also shares both an interest in the particulars of this case and a commitment to effective communication with deaf and hard of hearing people. The parties continue to disagree whether Maine Medical Center has complied with federal and state laws requiring the provision of auxiliary aids and services to Ms. DeVinney and other persons who are deaf or hard of hearing. However, all parties have decided to put their disagreements behind them and to focus instead on their shared interest in working together in pursuit of the goal of ensuring that hospital personnel are able to communicate effectively with persons who are deaf or hard of hearing.
In pursuit of this shared goal, all three parties have committed to a series of arrangements and procedures that Maine Medical Center already has in place, or is presently planning to put in place, pursuant to this Consent Decree. Maine Medical Center therefore fully embraces these arrangements and procedures, which are spelled out in detail below, as part of its ongoing commitment to the needs of persons with disabilities, and reiterates its intention to comply with all provisions of this Decree and Order. Accordingly, the parties have determined that there is no further need to litigate this action to a conclusion, and have jointly agreed to the final disposition of this action in its entirety, by consent to the following terms, each and all of which are hereby ORDERED and DECREED, as follows:
1. Jurisdiction and Venue
This Court has jurisdiction over the above-captioned action pursuant to 42 U.S.C. '' 12133 and 12188(b)(1)(B), and 28 U.S.C. '' 1331 and 1345. Venue is proper in the District of Maine pursuant to 28 U.S.C. ' 1391 in that all claims alleged herein arose within this District. The Court may grant declaratory and all other relief necessary to enforce this Decree pursuant to 28 U.S.C. '' 2201 and 2202.
2. Parties
(a) Plaintiff Janet DeVinney is an individual who is deaf and thus is a person with a disability within the meaning of the Americans with Disabilities Act, 42 U.S.C. ' 12111(8) and Section 504, 29 U.S.C. § 706(8). Plaintiff is also a qualified person with a disability within the meaning of Section 504. Plaintiff's primary method of communication is sign language. As a result of Ms. DeVinney's disability, she uses and relies on sign language interpreters and/or other auxiliary aids and services for effective communication with people who do not use sign language.
(b) Plaintiff-Intervenor, the United States of America, by and through the United States Department of Justice, represents the public interest and has authority to enforce Title III of the Americans with Disabilities Act, 42 U.S.C. '' 12132, 12188(a) and (b).
(c) Defendant Maine Medical Center, the largest hospital in Maine, is a non-profit, privately owned and managed general acute care hospital that operates and is licensed under the laws of the State of Maine and engages in the delivery of health care services to the public in the Greater Portland area, including emergency medical care, scheduled treatment, short-term hospitalization, and health education courses. Maine Medical Center is a public accommodation within the meaning of Title III of the Americans with Disabilities Act, 42 U.S.C. '' 12181- 89; 28 C.F.R. ' 36.104 and a program or activity receiving financial assistance within the meaning of Section 504 and 45 C.F.R. pt. 84.
3. Definitions
All terms and phrases used in this Consent Decree shall be interpreted consistently with the definitions and use of such terms and phrases in the ADA, the Title III regulations and the Maine Human Rights Act. The parties further agree to the following definitions:
(a) The term "MMC" means the hospital located at 22 Bramhall Street in Portland, known as Maine Medical Center, and, unless the specific context of this Decree indicates otherwise, includes all other campuses, physician offices and other facilities that are either in the hospital, or that are operated by Maine Medical Center (whether in the hospital or not) as well as those which Maine Medical Center begins operating during the term of this Consent Decree, and specifically includes McGeachey Hall and MMC's facilities at its Brighton, Falmouth and Scarborough campuses.
(b) The term "admitting station" refers to MMC's Admitting Office, Central Registry, Emergency Department, Family Practice Unit Facility, Outpatient Psychiatric Facility and any other point of initial entry into MMC's care system.
(c) The term "patient" refers to persons who have received, sought or are seeking medical services or medical care from MMC.
(d) The phrases "persons who are deaf" and "deaf persons" refers to persons who are deaf, late deafened or hard of hearing.
(e) The term "hospital personnel" includes all of MMC's approximately 5,000 employees and volunteers involved in the delivery of health care services (including, without limitation, nurses, physicians, social workers, technicians, admitting personnel, and therapists), with the exception of physicians (numbering approximately 50) who are based in physician practice offices that operate outside of MMC and its administrative/supervisory structure.
(f) The term "appropriate auxiliary aids and services" are those auxiliary aids and services that are necessary to ensure (i) effective communication between deaf persons and hospital personnel, and (ii) that persons who are deaf or hard of hearing have the opportunity to participate in and benefit from the hospital's goods, services, facilities, advantages and accommodations that is equal to the opportunities available to hearing persons. Depending on the facts and circumstances of each particular situation, appropriate auxiliary aids and services may include, without limitation, qualified interpreters, telecommunication devices for the deaf (TDDs), assistive listening devices (ALDs), captioned televisions, trained note-takers, computer assisted real time transcription (CART), telephone "flashers" to indicate incoming calls (where appropriate, such as in patient rooms) and other similar aids and services as defined by 36 C.F.R. ' 36.303(b)(1). Appropriate auxiliary aids do not include new or experimental technology that is not generally available and is not widely used in the United States.
(g) The term "telecommunication device for the deaf" (TDD) -- also known as TTY -- is a device designed to provide visual communication over the telephone lines consisting of a standard computer key board and an acoustic coupler.
(h) The term "assistive listening device" (ALD) means an amplification system designed to help people hear better in a variety of difficult listening situations. The basic function of an ALD is to improve the "signal to noise ratio" for the listener. ALDs can be used to improve enjoyment of televisions, amplification systems, and conversations.
(i) The term "computer assisted real time transcription" (CART) is a system in which a stenographer or court reporter using a stenograph machine transfers the words of a speaker by means of a computer to printed words on a screen in real time.
(j) The term "qualified sign language interpreter" or "interpreter" means an interpreter who is able to interpret competently, accurately, and impartially both receptively and expressively, using any specialized terminology necessary for effective communication in a medical setting. Someone who has only a rudimentary familiarity of sign language or finger spelling is not a "qualified interpreter" under this Decree or the ADA. Likewise, someone who is fluent in sign language but who does not possess the ability to process spoken communication into the proper signs or to observe someone else signing and change their signed or finger spelled communication into spoken words is not a qualified sign language interpreter. For the purposes of this Decree, a "qualified sign language interpreter" shall be an interpreter referred by Pine Tree Society Deaf Services or Certified Interpreting Associates, an interpreter who has certification from either the National Association of the Deaf or the National Registry of Interpreters for the Deaf, an interpreter who has a sign language license from the State of Maine (if available), or any other interpreter approved by the Office of the United States Attorney.
4. Effective Communication and Equal Access
MMC shall provide appropriate auxiliary aids and services, including sign language interpreters, where such aids and services are necessary to ensure effective communication with persons who are deaf and shall provide persons who are deaf with the full and equal enjoyment of the services, privileges, facilities, advantages and accommodations of MMC as required by this Decree, the ADA and Section 504. In furtherance of this commitment, MMC agrees to implement and follow the arrangements and procedures set forth in the provisions which follow within thirty (30) days of entry of this Decree except where a particular provision sets forth a different deadline.
5. Initial Intake of Deaf Patients
(a) Proactive Assessment
MMC begins assessing the individual needs of a patient either at the time an appointment or admission is scheduled, upon arrival at the hospital Emergency Department, upon admission, or upon receipt of notification that a deaf person is being transported to the hospital. As part of this initial assessment, MMC will determine whether the patient is a person who is deaf. When such a determination is made, and as soon as the patient=s condition reasonably allows, the Admitting Office, Central Registry, Emergency Department or other MMC admitting station will present the person who is deaf with a copy of a "Services for Deaf and Hard of Hearing Persons at Maine Medical Center" in the form of Exhibit A to this Decree. Admitting station personnel will help the deaf person complete the Notice when reasonably necessary. After the above-referenced Notice is returned to the admitting station, MMC personnel shall consult with the person who is deaf to ensure the deaf person's preferred method(s) of communication as well as the equipment necessary to ensure effective communication are expressed on the Notice. MMC personnel will then promptly inform the Telecommunications Office of any equipment needs requested by the deaf person and follow the procedures set forth in paragraph 6 of this Decree. In order to alert hospital personnel to a deaf person's communication and equipment needs, the completed Notice, or all relevant information contained in the completed Notice, will then be included with the deaf person=s medical chart for the remainder of his or her stay at MMC, and the chart itself will be conspicuously labeled (such as with a sticker, a tab, or the Notice itself used as a cover) to alert hospital personnel to the fact that the patient is a deaf person. MMC will retain the Notice, and any Refusal signed, and take such record gathering and retention steps as are reasonably necessary to ensure that MMC can supply the information called for by paragraph 19 of this Decree.
(b) Posting of Signs
Within ninety (90) days of the entry of this Decree MMC will post and maintain signs of conspicuous size and print at all hospital admitting stations and at the general public entrance stating, "Maine Medical Center provides sign language interpreting services, telecommunication devices (TTYs), and other aids and services to persons who are deaf or hard of hearing. These services are provided by MMC free of charge. Please ask for assistance., or such other comparable language as meets the approval of the Office of the United States Attorney. These signs will include the international signs for "interpreter," "TDD," "deaf" and "assistive listening device." MMC will also offer to post on the door of the room of each deaf patient a sign of appropriately conspicuous size and print that states: "Deaf Patient." The signs referenced in this paragraph will comply with the applicable provisions of ADA Accessibility Guideline 4.30.
(c) Patient Handbook
The statement to be posted under paragraph 5(b) of this Decree will also be replicated in all regularly scheduled printings of MMC's Handbook during the life of this Decree.
6. Interpreting Services
(a) Prompt Call for Interpreters
Making a timely call for an interpreter is of high priority and of great importance. Immediately upon completing the assessment and Notice requirements of paragraph 5(a) of this Decree and determining that a person scheduled to be a patient is a person who is deaf who has checked "Yes" on Question 1 on the paragraph 5(a) Notice and not completed the Refusal form referenced below in subpart (b) of this paragraph of this Decree, hospital personnel involved with the patient will promptly schedule (if the patient is not then at or soon to be at the hospital) or otherwise promptly call for an interpreter to be provided by the resources identified in subpart (b) of this paragraph of the Decree. The term "promptly call" as used in the prior sentence shall be deemed to mean call within fifteen (15) minutes. MMC shall provide a qualified sign language interpreter and/or other appropriate auxiliary aids and services in all circumstances where necessary for effective communication as required by the ADA and Section 504, including, but not limited to the following circumstances: (i) determination of a patient's medical history or description of ailment or injury; (ii) provision of patient rights, informed consent or permission for treatment; (iii) explanation of living wills or powers of attorney (or their availability); (iv) diagnosis or prognosis of an ailment or injury; (v) explanation of procedures, tests, treatment, treatment options or surgery; (vi) explanation of medications prescribed including dosage as well as how and when the medication is to be taken and any possible side effects; (vii) explanation regarding follow-up treatment, therapy, test results or recovery; (viii) discharge instructions; (ix) provision of psychiatric evaluation, group and individual therapy, counseling and other therapeutic activities, including grief counseling and crisis intervention; (x) explanation of any billing or insurance issues that may arise; (xi) classes concerning birthing, nutrition, CPR, weight management, etc.; (xii) informational presentations for patients or the public; (xiii) regularly scheduled religious services provided at MMC; and (xiv) blood donation or apheresis. The health care professional in charge of coordinating the care for a patient who is deaf shall continue to assess in consultation with the patient (and, where appropriate, the patient's close family members) the need for interpreters and other auxiliary aids and services through the deaf patient's hospitalization.
(b) Prearranging Guaranteed Access to Qualified Interpreters
In order for MMC to provide in accordance with this Decree a qualified sign language interpreter to any deaf person who does not complete a "Refusal of Maine Medical Center Interpreter Services" Form in the form of Exhibit B to this Decree, MMC will:
i. Enter into a written contract with Pine Tree Society Deaf Services and/or Certified Interpreting Associates, which contract(s) must include the terms set forth in Exhibit C to this Order and Decree, including without limitation the provision of guaranteed qualified sign language interpreting services during each weekday from 8:00 A.M. to 4:30 P.M. or 8:30 A.M. to 5:00 P.M. (business hours). During the above weekday time periods, the contract interpreter shall be made available as soon as possible and no later than one hour after the receipt of a request from MMC for an interpreter or at a pre-arranged time in the case of requests for coverage of pre-scheduled arrivals at MMC.
ii. Replace or renew such written contract(s) with agreements providing MMC with equal or greater interpreting services during the period of time this Decree remains in effect unless MMC otherwise secures such coverage by hiring qualified interpreters on staff, or by other means approved by counsel for the United States and plaintiff, which approval will not be unreasonably withheld.
iii. Create, maintain and possess at the office of the person designated as the ADA Communications Services Coordinator, Admitting Office, Central Registry, Telecommunications Office, Emergency Department and all other admitting stations of MMC an up-to-date list of office and 24-hour pager telephone numbers for each contract sign language interpreting agency as well as the telephone numbers of all such other qualified sign language interpreters residing within sixty (60) miles of the hospital who are approved for inclusion on the list by the Office of the U.S. Attorney for the District of Maine. This list will also include the full name, telephone number, and address of the Director of the Mental Health Unit for Deaf Persons at Westborough State Hospital in Massachusetts, the only psychiatric unit in New England established exclusively for deaf patients, as a specialized facility appropriate for the transfer of patients who cannot be treated appropriately at MMC. A referral, attempted referral, or recommendation for referral of a deaf person to Westborough State Hospital shall not discharge MMC of any obligations under this Order while the person remains at MMC.
iv. Any failure of Pine Tree Society Deaf Services, Certified Interpreting Associates, any other contract interpreting service or any other interpreter shall not relieve MMC of the responsibilities specified in this Decree.
(c) Restricted Use of Other Interpreters
i. Except in the limited circumstances described below in subparts (ii) and (iii) of this subsection of this Decree, MMC shall never request a family member, companion, case manager, advocate or friend of a person who is deaf to interpret communications between hospital personnel and that person. If a person who is deaf rejects MMC's offer of a free qualified interpreter and instead requests that a family member, companion, advocate, case manager, friend or other person be used to facilitate communication, MMC must:
secure a signed "Refusal of Maine Medical Center Interpreter Services" form (set forth in Exhibit B to this Decree) from the person who is deaf (or note in the patient's chart that the patient has both refused a hospital-supplied interpreter and refused to sign the Refusal form);
ascertain that the family member, companion, advocate, case manager or friend is willing to facilitate communication; and
explore with the patient other more effective means of communication (including repeating the offer of a qualified interpreter) when it appears to hospital personnel or is stated by the person who is deaf or the person facilitating communication that there is a lack of effective communication between the person who is deaf and hospital personnel.
ii. If a qualified interpreter retained by MMC to interpret communications between MMC personnel and a deaf person turns out to be a family member, companion, case manager, advocate or friend of the deaf person, MMC may nonetheless hire and compensate that interpreter so long as the deaf person agrees and the interpreter indicates that interpreting in that setting would be ethical and professional.
iii. In an emergency situation in which the patient has not refused interpreter services and where the patient's medical condition might be compromised by waiting for an interpreter to arrive before beginning the assessment and treatment, MMC shall immediately contact a qualified interpreter, and use flash cards, pictograph forms, written notes, charts, diagrams and its best efforts to provide the most effective communication possible until such time as the qualified interpreter arrives at MMC.
7. CART
MMC has included CART on the Notice form attached as Exhibit A to this Decree as an alternative or adjunct to other listed aids and services, and will enter into arrangements with local court reporting services employing CART technology in order to add CART to the aids and services MMC makes available to persons who are deaf, especially those who can read and speak more effectively than they can sign. Actual use of CART in particular settings (especially small rooms or rooms with other electronic equipment) will depend on MMC's reasonable determination as to safety, effectiveness, and confidentiality concerns in those settings.
8. Telecommunications Service
MMC shall maintain a Telecommunications Service within the hospital to coordinate, supervise, and record the provision of TDDs, telephone flashers, closed caption decoders for standard televisions, amplified handsets, assistive listening devices (ALDs) as well as other appropriate auxiliary aids and services to persons who are deaf. The equipment shall be stored in a place that is accessible at all times. MMC shall maintain a list of the use of such equipment as specified in paragraph 19(b) of this Decree. MMC shall enable and authorize in writing personnel who provide the Telecommunications Service to make emergency purchases or rentals, for immediate use, of any equipment necessary for effective communication with persons who are deaf if it is determined sufficient technical equipment is not available at MMC. The Telecommunications Service personnel shall maintain recently-published catalogues as well as an up-to-date list of places where such equipment can be most readily purchased or rented by MMC.
9. Telephones
In all circumstances where MMC makes the use of a telephone available for patients or others, MMC shall promptly offer TDDs or telephones with amplified sound and which are hearing aid compatible, as appropriate, for persons who are deaf. If a person at MMC who is deaf is not familiar with the use of this equipment, hospital personnel will promptly show the person how to use the equipment. All regularly scheduled printings of MMC's Patient Handbook during the life of this Decree shall fully describe the above-referenced availability of TDDs, telephones with amplified sound, visual flashers, and ALDs.
(a) Public Pay Telephones
MMC will maintain functioning and permanently-installed public TDD pay telephones at the following locations: Emergency Department waiting room, the main corridor adjacent to the Admitting Department, Richards Wing 9 (cardiology), Special Care Unit, McGeachey Hall, the Brighton, Falmouth and Scarborough campuses, and otherwise at all sites in accordance with ADA Standard § 4.1.3(17)(C). Signs of conspicuous size and print, containing the international TDD symbol (as depicted in ' 4.30 of the ADA Standards, 28 C.F.R. pt. 36, App. A) and giving notice to persons who are deaf and hard of hearing shall be posted at key points for each pay telephone, directing people to the location of a public TDD pay telephone. All public pay phones will have volume control and be hearing aid compatible.
(b) Incoming TDD Lines and Calls
MMC will maintain separate and fully functioning incoming TDD telephone numbers for the Admitting Office, Emergency Department, McGeachey Hall, Vocational Services, Out-Patient Clinic, and the Poison Control Center. MMC will arrange to have these numbers published in general and TDD telephone directories and elsewhere by MMC, lead directly to functioning TDDs, and be maintained and answered at such times as regular incoming calls to such facilities are answered. Hospital staff who answer TDD calls will be trained in the specific use of TDDs. In the case of the Emergency Department TDD telephone number, the TDD shall at all times of the day and night be maintained and answered by hospital personnel who are trained in the specific use of the TDD.
(c) Patient Rooms With Telephones
For any deaf patient who would have a telephone in his or her room were he or she hearing and for any deaf person described in paragraph 15 of this Decree who is with a patient in a patient room, MMC will promptly provide the person who is deaf with a choice of a telephone with amplified sound which is hearing aid compatible or a TDD with a printer and a visual flasher to signal incoming calls. MMC will install either the telephone with amplified sound which is hearing aid compatible or the TDD with a visual flasher within sixty (60) minutes of the patient's arrival in the room, or selection between the two, whichever is later. In order to make this choice practical and effective, MMC will maintain a log of amplified telephone and TDD usage and maintain a number of functioning TDD units with visual flashers and printers sufficient to meet the demand as reflected by the log. MMC also agrees to purchase additional TDDs with printers and visual flashers as is reasonably needed to keep up with improved technology, or as needed to replace defective units.
(d) Patient Rooms Without Telephones
In units of the hospital where patients normally do not have telephones in their rooms, if patients are given access to common area telephones other than the public pay phones identified in this Decree, MMC will maintain in each such unit either a permanent or a portable TDD with a printer that can be used by persons who are deaf so that such patients have equal access to make outgoing calls and receive incoming calls as do hearing patients.
10. Captioned Televisions
In all patient rooms containing televisions, televisions with caption capability (or caption decoders for standard televisions sets) shall be provided for persons who are deaf while they are using such rooms. All hospital-produced television advertising and programming and videos (including educational materials) produced after the date of this Decree shall be made available with captioning. If a person who is deaf does not know how to activate the captioning, hospital personnel will promptly show the person how to activate the captioning. Clearly stated and easily understood directions for use of the caption capability shall be in the Patient Handbook or otherwise available in each room containing a television with captioning capability. The directions for operating the caption function shall accompany all caption decoders for standard television sets.
11. Fire Alarms
MMC does not presently have or use fire alarms in patient rooms. If, during the period of time covered by this Decree, it should adopt a system of placing or using fire alarms in patient rooms, visual fire alarms shall be provided for patients who are deaf. If any fire alarm emits any electronic or mechanical sound for the purpose of warning or alarming hearing patients in any area(s) of the hospital, MMC shall install visual alarms for patients who are deaf in the same area(s) of the hospital. As to all common areas of MMC, placement of visual fire alarms may otherwise be modified to suit any standard health care alarm design practices employed by MMC.
12. Assistive Listening Devices
Assistive Listening Devices (ALDs) shall be an auxiliary aid listed as available on the Admission Notice of Services for Persons who are Deaf or Hard-of-Hearing at Maine Medical Center. Any deaf patient or person described in paragraph 15 of this Decree who indicates on the Notice or otherwise that an ALD will allow him or her to communicate effectively will promptly be furnished at no cost to the deaf patient or person with an ALD (which is hearing aid compatible if appropriate) for the duration of his or her MMC stay. Personnel shall be available at all times who are trained to deliver and provide instruction for use of the ALDs. MMC will have and maintain within sixty (60) days of the entry of this Decree two ALDs, with written instructions, and purchase and maintain one additional ALD, with written instructions, during each of the next three years. Appropriate hospital personnel will also be authorized to purchase or rent, for immediate use, additional ALDs if more are required for effective communication with any person who is deaf.
13. Forms and Pictographs
MMC will develop or obtain within sixty (60) days pictograph forms and flash cards to assist in providing effective communication between hospital personnel and persons who are deaf. The forms and cards shall be used by the Emergency Department and elsewhere at MMC and shall cover routine matters that do not involve complex information or legal or important medical decisions. Except in emergencies while awaiting other more effective means of communicating, the flash cards and forms shall be used merely as a means to facilitate, rather than as a substitute for, other more effective means of interaction with hospital personnel.
14. Written Hospital Policy
MMC shall publish in the form of a single, integrated document a written policy entitled MMC's "Policy For Effective Communication With Persons Who Are Deaf Or Hard Of Hearing," a copy of which is attached as Exhibit D to this Decree. MMC will distribute this policy within sixty (60) days to all hospital personnel and affiliated physicians who are involved in patient care, patient services or communications with patients. The Policy shall thereafter be distributed to all new hospital personnel on or before their affiliation or employment with MMC. Specifically, this MMC policy shall include the following directive to all of its employees: "If you recognize or have any reason to believe that a patient, a person accompanying a patient who will be involved in communications from and to care providers, or any other person using Maine Medical Center services, is deaf or hard of hearing, you MUST offer to call a qualified sign language interpreter for that person and you MUST advise the person that the sign language interpreter and/or other appropriate auxiliary aids and services will be provided at Maine Medical Center's expense." Within sixty (60) days MMC will include this policy in all appropriate manuals and promptly make it available to any patient or member of the public upon written request. The policy and any change or revision thereto shall be submitted for prior approval to the Office of the United States Attorney and counsel for Plaintiff, which approval will not be unreasonably withheld.
15. Non-Patient Deaf Persons Who Use MMC Services
Whenever a patient, whether deaf or not, may be accompanied by a deaf family member, relative, companion, friend or any other person who is deaf and reasonably expected to desire and be authorized to communicate with hospital personnel about the patient, participate in any treatment decision, play a role in communicating the patient=s needs, condition, history or symptoms to hospital personnel, or help the patient act on the information, advice or instructions provided by hospital personnel, MMC will offer at no charge to the person who is deaf those auxiliary aids and services, including qualified sign language interpreters, that would be offered to a patient who is deaf pursuant to the procedures and requirements specified in this Decree, and shall so note in the patient=s chart. MMC shall not deny equal services, accommodations, or other opportunities to any individual because of the known hearing impairment of a patient with whom the individual is known to have a relationship or association.
If a deaf person participates in any educational or support activities provided or sponsored (or co-sponsored) by MMC, such as a lecture or support group, MMC will also offer that person such auxiliary aid and services, including sign language interpreters, as are necessary to ensure effective communication whenever MMC has adequate notice of such a need in advance of the activity.
16. Training
MMC will provide the following training to hospital personnel:
(a) Mandatory In-service Training
In addition to distributing its Policy as required by paragraph 14 of this Decree, and in addition to its normal training provided to hospital personnel, MMC will contract with the Pine Tree Society Deaf Services (or another vendor approved by counsel for plaintiff and the United States, which approval will not be unreasonably withheld), for at least five (5) in-service training sessions during calendar year 1998. At least one of these in-service training sessions will be mandatory for each of the following:
i. The ADA Communications Services Coordinator and all clinical directors and nursing supervisors;
ii. All hospital personnel who staff the Emergency Registration desk, the Admission desk (for in-patient registration), the Central Registry desk (for out-patient registration), and the General Information desk;
iii. All triage and Emergency Department nurses;
iv. All heads of the MMC departments in which communication with patients occurs. A list of the names (and departments) of the current patient care department heads is attached as Exhibit E.
All hospital personnel who fall into any of the above four categories will attend at least one of the five above-referenced in-service training sessions during 1998.
Each of these in-service training sessions, as supplemented by MMC if necessary, shall include in its curriculum the following: (i) the various degrees of hearing impairment; (ii) language and cultural diversity in the deaf community; (iii) dispelling myths and misconceptions about persons who are deaf; (iv) identification of communication needs of persons who are deaf; (v) the unique needs and problems encountered by late-deafened individuals; (vi) psychological implications of deafness and its relationship to interaction with hearing health care professionals; (vii) recommended and required charting procedures; (viii) types of auxiliary aids and services available at MMC; (ix) the proper use and role of qualified sign language interpreters; (x) procedures and methods for accessing MMC's system for providing sign language interpreters and the location of communication equipment (TDDs, telephone flashers, ALDs, closed caption decoders, etc.) as well as how to set up and use the equipment; (xi) requirements of this Consent Decree (including an explanation of the use and meaning of each of the forms attached as Exhibits to this Decree); and (xii) outside-the-hospital resources concerning the needs of persons who are deaf.
(b) Mandatory Emergency Department In-Service Training
On or before September 30, 1998, MMC will provide formal, mandatory in-service training through outside speakers to all members of the Emergency Department (i) to promptly identify communication needs and preferences of persons who are deaf; (ii) to secure interpreter services as quickly as possible; and (iii) to use flash cards and pictographs (to enhance, not replace, other means of providing the most effective communication available under the circumstances). Within the same timeframe MMC will also identify and provide appropriate training for a staff member, with appropriate back up, for each duty shift to be responsible for coordinating communication services in the Emergency Department. Such staff will assist other Emergency Department personnel as is necessary in identifying persons who are deaf, assessing their communication needs and insuring those communication needs are met as promptly as possible, but no later than the time requirements set forth in this Decree.
(c) Hospital-wide Additional Training
i. Deaf Awareness Week
During National Deaf Awareness Week in September of 1998, MMC will:
Release the video described in paragraph 16(c)(ii) of this Decree.
Conduct a series of no fewer than two (2) Grand Rounds presented by outside physicians and other outside speakers on the communications and psychological needs of persons who are deaf or hard of hearing.
Maximize awareness and sensitivity by mailing notices and posting posters at numerous appropriate MMC locations in MMC and by advertising in the Portland Press Herald and other means of communication.
ii. Maine Medical Center video
Prior to September 1, 1998, MMC will produce on its own or through an outside vendor an educational video of approximately thirty (30) minutes or longer regarding deafness, the communication and equipment needs of persons who are deaf, and hospital policy as set forth in this Decree. Prior to release of the video, a transcript and story board of the video will be submitted by MMC for consultation and approval to counsel for the United States and plaintiff concerning the script, format, and presentation means employed in this video. MMC's library will maintain and possess at least fourteen (14) copies of the video available for hospital employees and others to borrow for home viewing. Viewing of the video within sixty (60) days of its release will be mandatory for all nurses, all staff physicians and therapists in the Department of Psychiatry and all members of the Social Work Department who have contact with patients. Completion of this mandatory training will become a component of annual reviews or evaluations of these employees beginning with evaluations of annual performance after November 30, 1998.
iii. MMC will in addition by September of 1998 prepare and distribute a set of materials to all physicians with MMC privileges (whether or not they are MMC employees). The materials will contain MMC's policy and forms, a copy of MMC's interpreter list, and a request that doctor offices alert MMC admitting personnel to disability-related needs of their patients when scheduling admissions, tests, or other health care services.
iv. The same or comparable training will be provided upon orientation to new MMC employees falling into the foregoing categories (a)(i)-(iv), (b) and (c)(ii) who do not complete the initial round of training applicable to them as specified above.
17. Surveys
(a) Initial Patient Survey
Beginning on the date on which this Decree is entered, MMC will compile an ongoing list of patients who are deaf who are known or believed to have used MMC's services. MMC will supplement this list with such information as it has from the records kept by its Telecommunications Service and its documentation with the providers of interpreting services reflecting the provision of aids or services to persons who are deaf other than patients. During the third quarter of 1998, MMC will mail a questionnaire to all persons appearing on this list as of July 31, 1998. The questionnaire will be prepared in clearly-stated and easily understood language and be mailed in an envelope containing a return envelope and postage. MMC will obtain the approval of counsel for all parties regarding the wording and form of the questionnaire, which approval will not be unreasonably withheld. The survey will appropriately solicit the deaf person's level of satisfaction or dissatisfaction with the communication services provided, and whether the person believes that he or she has received equal services and an equal opportunity to participate in, and/or to benefit from, the hospital's services, whether the person has any suggestions for improving services in the future, and other questions determined by MMC to be valuable in ascertaining the effectiveness of the interpreting and other auxiliary aids for persons who are deaf at MMC. MMC may follow-up on the initial mailing with additional mailings to non-responding persons. If less than twenty percent (20%) of the surveys are returned within forty (40) days of their initial mailing, MMC will then use telephone and in-person interviews (using TTYs and interpreters as necessary) with a sufficiently large number of non-responding persons to bring the total response rate up to at least twenty percent (20%), or until eighty percent (80%) of all listed deaf persons have been surveyed or declined to do so notwithstanding direct, in-person follow-up.
(b) Patient Survey Reports
If the survey results indicate that any deaf person was not satisfied in any manner with the communications services provided, MMC will interview the contract interpreter, if any, and the relevant hospital personnel who treated the person, report the survey results and the results of these interviews to counsel for all parties, seek the deaf person's consent to disclose his or her name to counsel for the United States, and will in any event make available to counsel for all parties a copy of the patient=s medical records (redacted for patient identifying information in the absence of legal authority or consent), all for the purpose of ascertaining whether, in fact, the terms of this Decree and the requirements of the ADA and Section 504 were followed with respect to that person who is deaf.
(c) Subsequent Patient Surveys
If the survey results or any other evidence as is available demonstrates that MMC has failed to offer or provide to any person who is deaf the auxiliary aids and services required by this Decree, MMC will continue to conduct the survey procedures specified in subparagraph 17(a) quarterly until there is for a continuous period of six (6) months an absence of survey results and other evidence demonstrating such a failure.
MMC shall in any event conduct at least one additional survey during the third quarter of calendar years 1999, 2000, and 2001 under the same terms set forth in paragraphs 17(a) and 17(b).
MMC will collect and analyze the survey results in a written report to be furnished to counsel for all parties on or before ninety (90) days after the end of the quarter in which the survey is done.
(d) Interpreter Surveys
MMC will also provide to counsel for the parties all reports received from Pine Tree Society Deaf Services, Certified Interpreting Associates and any other interpreter service as provided for in the contract terms set forth in Exhibit C to this Decree.
18. ADA Communications Services Coordinator
Within thirty (30) days of the entry of this Decree, MMC will designate an employee or officer to serve as its "ADA Communications Services Coordinator" (CSC). The CSC will:
(a) Be the overall coordinator of MMC=s policy and responsible for developing or overseeing the development of specific procedures to implement the hospital policy specified in paragraph 14, including designing a system to ensure full implementation of this policy;
(b) Be responsible for making arrangements for scheduling, announcing, and promoting all training required by this Decree;
(c) Be responsible for coordinating the community outreach required by this Decree;
(d) Be responsible for providing all reports required by this Decree.
19. Administration and Recordkeeping
(a) Coding
In addition to the surveys and reports specified elsewhere in this Decree, MMC will within sixty (60) days of the entry of this Decree establish and implement a hospital-wide system for coding and readily identifying by computer all persons who are classified as deaf pursuant to paragraph 3 of this Decree. MMC's coding system will assure the ready availability of data for the purpose of determining the extent to which persons who are deaf are being provided with equal opportunities to enjoy MMC's services in all departments.
(b) Deaf Person List
MMC will also prepare for each calendar year during which this Decree is in effect a list showing for each deaf person:
i. Time and date of each initial intake or arrival;
ii. Information received on each intake Notice Form;
iii. Dates and times of interpreters on site for each person who is deaf;
iv. Dates and times other auxiliary aids and services were provided (not including closed captioning); and,
v. Identify successful deaf person-interpreter matches.
20. Community Outreach by MMC
Beginning September 1, 1998, MMC shall engage in targeted outreach efforts, including sending through the course of each school year hospital representative(s) to meet with students at the Baxter School for the Deaf and explain the hospital policy set forth in paragraph 14. Within sixty (60) days of the entry of this Decree and Order, MMC will publicize the availability of auxiliary aids and services to deaf patients and deaf visitors of patients by means of a flier or correspondence mailed to social service agencies and organizations in Maine agreed upon by the parties as appropriate recipients of such information. During or before Deaf Awareness Week (1998), MMC will in addition send a similar mailing to:
(a) Patients whose names are listed on the unredacted originals of documents marked in discovery as 0276M-0304M and for whom MMC can identify addresses from its records;
(b) All patients for whom MMC has supplied interpreting services since the last date shown on 0276M-0304M and for whom MMC can identify addresses from its records; and
(c) Persons from the Greater Portland area who are listed in the Maine TTY Directory.
21. Monetary Payments
(a) Civil payment to the United States of America
MMC shall pay and reimburse the United States as authorized by 42 U.S.C. § 12188(b)(2)(C)(i) for its expenses incurred in this action in the amount of Ten Thousand Dollars ($10,000.00). This payment is less than the $50,000.00 civil penalty ordinarily authorized in an ADA enforcement action because of the efforts made to date by MMC, and because of the extent to which MMC has worked with the United States to confirm MMC=s commitment to the foregoing provisions of this Decree and the accommodation of the needs of persons who are deaf.
(b) Payment to Ms. DeVinney
MMC and Ms. DeVinney have resolved her individual claims pursuant to this Decree and a separate agreement. The parties agree that the amount of attorneys' fees and costs to be paid to the Plaintiff is not resolved at this time, and is subject to continued negotiation. If MMC and the Plaintiff are unable to reach agreement as to attorneys' fees and costs within thirty (30) days of the entry of this Decree, then they will submit this issue to the United States District Court for the District of Maine within forty-five (45) days of the entry of this Decree. Failure of the parties to reach an agreement as to attorneys' fees and costs does not invalidate any of the other provisions of this Decree.
22. Monitoring and Enforcement
(a) Initial Compliance Report
Within ninety (90) days of the entry of this Decree, and every 90 days thereafter for a period of one year from the entry of this Decree MMC shall submit a written report to the Office of the United States Attorney and to Plaintiff=s counsel concerning the implementation of this Decree. The report shall describe by date and substance the steps taken to comply with the Decree, and a summary of any problems encountered during attempts to implement the Decree. The report shall also provide the identity of the CSC, the precise locations in which signs have been posted regarding the availability of interpreters and TTYs, and the progress made in implementing the administration, recordkeeping, training, survey and community outreach requirements of paragraphs 16, 17, 19 and 20 of this Decree. These reports shall include the number, percentage and department of hospital personnel who have attended in-service training sessions and patient-contact personnel who have viewed the MMC video during each relevant reporting period, and review whether further steps are necessary to meet the communication and equipment needs of persons who are deaf at MMC.
(b) Subsequent Reports
Thereafter, MMC will provide a copy of the deaf person list (with patient names redacted) referenced in paragraph 19(b) of this Decree to counsel for the United States at the same time that it furnishes the written report of survey results pursuant to paragraph 17.
(c) Right of Compliance Review
During the term of this Decree, the United States may, at anytime, inspect MMC's premises and review MMC's compliance with the Decree. As a part of such review, the United States may, with reasonable notice and in a reasonable manner that protects patient confidentiality rights and avoids interfering with patient care services, require MMC to permit the United States to interview witnesses relating to implementation of this Decree to determine if MMC is complying with the provisions of this Decree. MMC will retain during the life of this Decree all records reasonably necessary to document the implementation of this Decree. MMC will also produce for the purpose of photocopying such records related to implementation of this Decree as are requested by the United States unless such production would unduly burden or seriously disrupt the hospital's normal business operations. Asserted considerations of privacy or confidentiality may not operate to bar the United States from access to sources of information or to facilities where such access is authorized by law.
(d) Enforcement Penalties
If MMC fails to comply with this Decree, it will be liable to the United States of America for a civil penalty. Any violation of the ADA after the date hereof shall be considered a subsequent violation. In the absence of agreement between MMC and the United States, the amount of any civil penalty will be determined by the Court taking into consideration the nature and extent of non-compliance, the extent of MMC's good faith in trying to comply, the existence of any efforts by MMC to exceed the requirements of this Decree, any failure by MMC to cure its non- compliance, whether the non-compliance recurs in the face of requests by the United States that it cease, the public interest, deterrence and the effect of any non-compliance on any deaf person. Notwithstanding the foregoing, in the event that non-compliance results in a failure to offer or to provide a qualified interpreter to any deaf person or persons in accordance with the procedures set forth in this Decree, MMC will pay a penalty of at least Three Thousand Dollars ($3,000.00) for each person who did not receive an interpreter as a result of such failure or failures.
23. Dispute Resolution
The parties shall negotiate in good faith to resolve any dispute relating to the interpretation or implementation of this Decree before bringing the matter to the Court's attention. In the event of any unresolved disagreement between the United States (or the Office of the United States Attorney) and the Plaintiff (or Plaintiff's counsel) with respect to provisions of this Decree providing for approval by both the United States (or the Office of the United States Attorney) and the Plaintiff (or Plaintiff's counsel), the position of the United States shall control unless Plaintiff demonstrates that the position of the United States is either unreasonable or that it would allow violation of the ADA or Section 504.
24. Release and Dismissal
This Decree does not purport to remedy, and shall not be construed to address, any other issues of ADA or Section 504 compliance or any other federal law other than those provisions or regulations of the ADA or Section 504 that relate to the provision of equal access to persons who are deaf. This Decree does not in any way relieve MMC of its continuing responsibility to comply in the future with all aspects of the ADA, the Rehabilitation Act of 1973, as amended (Section 504) and the Maine Human Rights Act nor does it restrict the rights of private persons not party to this suit from seeking relief or remedy for violations of any law, whether in the past or future. However, the terms of this Decree have been negotiated and agreed upon among the parties with the view that compliance with the Decree would be consistent with the requirements of the ADA and Section 504 as far as they relate to providing equal access to persons who are deaf at MMC. Any and all claims, proceedings, and causes of action for damages, penalties, attorneys= fees, interest, costs, declaratory, injunctive or other relief arising out of the transaction or series of transactions that gave rise to this action and not expressly provided for by this Decree are dismissed with prejudice.
25. Changing Circumstances
During the five years in which this Decree will be in effect, there may be a change in circumstances such as, for example and without limitation, an increased or decreased availability of qualified interpreters or developments in technology to assist or improve communications with persons who are deaf. If MMC determines that such changes create opportunities or needs for meeting the needs of deaf persons more efficiently or effectively than is allowed under this Decree, it may propose changes to this Decree by presenting written notice to counsel for all parties. Such changes will then only be presented to the Court for incorporation in this Decree if the United States, upon review, grants its approval, which approval will not be unreasonably withheld. The United States shall also have the right after presenting written notice to counsel for all parties to propose changes in this Decree to the Court based upon any future failure of MMC to provide equal benefits or services to persons who are deaf. Absent consent of the parties, no proposed changes will be accepted by the Court unless warranted by the evidence and principles of equity. All parties are required pursuant to paragraph 23 to negotiate in good faith prior to proposing any changes to the Court.
26. Binding
This Decree is final and binding on MMC, the United States of America, including the U.S. Department of Justice, and the Plaintiff Janet DeVinney, including all principals, agents, executors, administrators, representatives, successors in interest, beneficiaries, assigns, heirs and legal representatives of the above-captioned parties. This Decree, however, does not preclude in any way complaint investigations, compliance reviews, or administrative action including any action under Section 504 by the United States Department of Health and Human Services (DHHS) with respect to any matter presented in a timely manner to DHHS as of or after the date of this Decree or outside the scope of the Complaint in Intervention of the United States in this action.
27. Non-waiver
Failure by any party to seek enforcement of this Decree 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.
28. Retained Jurisdiction and Standing
The United States District Court for the District of Maine shall retain jurisdiction over this action for the purpose of ensuring compliance and enforcing the provisions of this Decree for five (5) years from the date hereof, after which time its provisions shall be terminated unless the Court determines that, based on findings of non-compliance, it is necessary to extend any of its requirements, in which case those requirements, after hearing, may be extended subject to the requirements of equity. The parties to this action and no one else shall have standing to seek enforcement of this Decree.
29. Completeness
This Consent Decree embodies in full the terms of the agreement and understanding between the parties related to the subject matter of this action or this Decree. The Decree contains a public agreement and a copy of the Decree, or any information concerning its contents, may be made available to any person.
SO ORDERED.
Dated: May 18, 1998
/s/ Gene Carter
Hon. Gene Carter
United States District Court
The undersigned AGREE and CONSENT to the form, content, and entry of the foregoing Consent Decree:
For United States of America: By:_________________________________
Jay P. McCloskey
United States Attorney
District of Maine
_________________________________
James M. Moore
Assistant United States Attorney
United States Attorney's Office
P.O. Box 2460
Bangor, ME 04402
207-945-0373 (voice)
207-945-0307 (TTY)
Plaintiff: _________________________________
Janet DeVinney
South Portland, ME 04106
For Plaintiff Janet DeVinney: _________________________________
Deirdre M. Smith
Drummond Woodsum & MacMahon
245 Commercial Street
P.O. Box 9781
Portland, ME 04104-5081
207-772-1941 (voice)
207-828-8260 (TTY)
__________________________________
Marc Charmatz
National Association of the Deaf
Law Center
814 Thayer Avenue
Silver Spring, MD 20910-4500
301-587-7732 (voice or TTY)
For Defendant
Maine Medical Center: ___________________________________
William J. Kayatta, Jr.
Pierce Atwood
One Monument Square
Portland, ME 04101
207-791-1100
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