A.     The parties to this Settlement Agreement (“Agreement”) are the United States of America and McLeod Regional Medical Center (“MRMC”), located in Florence, South Carolina.

B.      This matter was initiated by a complaint filed with the United States Department of Justice (the “United States”) against McLeod Regional Medical Center, D.J. No. 202-67-87, alleging violations of title III of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12181-12189, and its implementing regulation, 28 C.F.R. Part 36.

C.    The Department of Justice is authorized to investigate alleged violations of title III of the ADA, and to bring a civil action in federal court if the Department is unable to secure voluntary compliance in any case that involves a pattern or practice of discrimination or that raises issues of general public importance, 42 U.S.C. § 12188(b).

D.     McLeod Regional Medical Center is a place of public accommodation covered by title III of the ADA.  42 U.S.C. § 12181(7)(F).

E.     The ADA prohibits public accommodations, including hospitals, from discriminating against an individual on the basis of disability in the full and equal enjoyment of its goods and services.  42 U.S.C. § 12182(a).  Ensuring that hospitals do not discriminate against persons who are deaf or hard of hearing is an issue of general public importance.

F.     The complaint alleged that one person who was deaf and uses sign language for communication was treated at MRMC on June 24, 2003, for an attempted suicide and she was unable to communicate effectively with the doctors at MRMC without an interpreter.  She also alleged that she was denied an interpreter when she presented at the Emergency Department in April of 2002, for an on-the-job injury.  The complaint alleged that another person who was deaf and used sign language for communication was admitted to MRMC several times between 2002 and 2004, and at times MRMC used his friend as an interpreter.  MRMC denied all of these allegations.

G.     MRMC has cooperated in the government's investigation and has maintained it is committed to full compliance with the ADA.  To demonstrate that commitment, and not because it believes that it has an obligation under the law or believes it has violated the ADA, MRMC has agreed to implement polices and procedures, set forth below, that are designed to afford deaf and hard of hearing persons a benefit equal to that provided to others, and to ensure that appropriate auxiliary aids and services will be provided where necessary to afford effective communication between MRMC and persons who are deaf or hard of hearing.  This settlement agreement (“Agreement”) shall not be construed as an admission of liability by MRMC, all such liability being specifically denied by MRMC.

H.    In consideration of the terms of this Settlement Agreement, and in particular the provisions in Sections III-IV, the Attorney General of the United States agrees to refrain from undertaking further action in this case, except as provided in Section IV(C).

I.     In order to secure compliance by voluntary means and avoid the costs of litigation, the parties agree to resolve this matter as set forth below.

II.  DEFINITIONS

A.     The term “appropriate auxiliary aids and services” means: qualified sign language or oral interpreters, note takers, computer-assisted real time transcription services, written materials, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, TTY’s, large print materials, acquisition or modification of equipment or devices, and other methods of delivering effective communication that may have come into use or will come into existence in the future.

B.     The term “Companion” means: a person who is deaf or hard of hearing and is either (a) a person whom the patient indicates should 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; (b) a person legally authorized to make health care decisions on behalf of a patient; or (c) such other person with whom the hospital personnel would ordinarily and regularly communicate with concerning the patient’s medical condition, including, but not limited to, the patient’s next of kin or health care surrogate.

C.    The term “complaint” means a low-level concern about the provision of auxiliary aids and services that is easily resolved to the Patient’s or Companion’s satisfaction and that does not trigger the grievance process.

D.    The term “grievance” means a complaint about the provision of auxiliary aids and services that is not resolved to the Patient’s or Companion’s satisfaction.

E.     The term “Hospital Personnel” means: all employees and independent contractors with contracts to work on a full-time basis for MRMC (or on a part-time basis exclusively for MRMC), including, without limitation, nurses, physicians, social workers, technicians, admitting personnel, billing staff, security staff and therapists and all volunteers, who have or are likely to have significant contact with “Patients” or “Companions,” as defined herein.

F.    The term “qualified sign language interpreter,” “oral 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 Hospital setting to a “Patient” or a “Companion” who is deaf or hard of hearing.  Someone who has only a rudimentary familiarity with sign language or finger spelling is not a “qualified sign language interpreter” under this Agreement.  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 signing and change their signed or finger spelled communication into spoken words is not a qualified sign language interpreter.

G.     The term “Patient” means: a person who is deaf or hard of hearing and is seeking and/or receiving medical services at MRMC.

H.     The term “TTY’s” means: devices that are used with a telephone to communicate with persons who are deaf or hard of hearing by typing and reading communications.

III.  TERMS OF AGREEMENT

A.     Implementation of Program

1. Within ninety (90) days of the effective date of this Agreement, MRMC will adopt a program (Program) that will effectively implement the provisions of this Agreement, including developing, coordinating and overseeing the development of specific procedures to fully implement this Agreement.
2. The Program will include, among other things:

(a)    The designation of an individual who will maintain full information about access to and the operations of the Program (“Responsible Official”).  The Responsible Official will maintain a combination voice/TTY telephone line or a dedicated TTY telephone line, will publicize its purpose and telephone number broadly within MRMC and to the public, will respond to telephone inquiries during normal business hours and will maintain a recording system for inquiries received after normal business hours.

(b)    The designation of one or more Administrative Nursing Supervisors who will be available twenty-four (24) hours a day, seven (7) days a week, to answer questions and provide assistance and authorization for immediate access to and proper use of the appropriate auxiliary aids and services, and qualified sign language and oral interpreters available under the Program (as described below).  Such Nursing Supervisors 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.  MRMC will circulate and post broadly within MRMC the names, telephone numbers, functions and office locations of such Nursing Supervisors, including a TTY telephone number that may be called by Patients and Companions in order to obtain the assistance of such Nursing Supervisors.

B.     Provision of Appropriate Auxiliary Aids and Services.   As of the effective date of this Agreement, MRMC will provide to Patients and Companions appropriate auxiliary aids and services that may be necessary for effective communication after making the assessment described below.

C.     Communication Assessment.  MRMC will consult with individual Patients who are deaf or hard of hearing and Companions whenever possible to determine what type of auxiliary aid or interpretive service is necessary to ensure effective communication.  While consultation is strongly encouraged, the ultimate decision as to what measure to take to ensure effective communication rests in the hands of MRMC, provided that the method chosen results in effective communication.

1. General Assessment Criteria.  The determination of which appropriate auxiliary aids and services are necessary, and the timing, duration and frequency with which they will be provided, will be made by the nurse or Nursing Supervisor, in consultation with the Patient or Companion where possible.  The assessment will take into account all relevant facts and circumstances, including without limitation the following:

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

(b)    The individual’s communication skills and knowledge;

(c)    The Patient’s health status or changes thereto;

(d)    The Patient’s and/or Companion’s request for or statement of need for an interpreter, including the Patient’s or Companion’s request for the provision of interpreting services through audio-video interpreting services or through an on-site interpreter;

(e)   The reasonably foreseeable health care activities of the Patient (e.g., group therapy sessions, medical tests or procedures, rehabilitation services, meetings with health care professionals or social workers, or discussions concerning billing, insurance, self-care, prognoses, diagnoses, history and discharge); and

(f)    The availability at the required times, day or night, of appropriate auxiliary aids and services.

2. Time for Assessment.  Prior to hospitalization, Patients or their Companions may request auxiliary aids and services to facilitate communications relevant to a patient’s health condition by notifying the Nursing Supervisor or relaying their request through scheduling.com.  Deaf and hard of hearing patients seeking admission, emergency care, or diagnostic services are identified at the point of registration and are assessed by the nurse to determine communication skills and the requirement for auxiliary aids and services.  Hospital personnel will document a Patient’s or their Companion’s communication skills in the Patient’s medical records.  If the Nurse or Nursing Supervisor concludes that requested services are not warranted, documentation will be made as provided in III.F, below.  If that determination is made by the Nurse, the Nursing Supervisor should be notified.  Nurses, Doctors and other providers are to document the presence and use of interpreters or other auxiliary aids or services in the Patient’s medical record.  MRMC shall reassess which appropriate auxiliary aids and services are necessary, in consultation with the Patient or Companion where possible, in the event that communication is not effective.

D.    Ongoing Relationships.  MRMC uses scheduling software that allows either the patient's doctor or the hospital to enter a permanent flag that a particular patient is deaf or hard of hearing.  Whenever that particular plaintiff is scheduled for a subsequent visit to the MRMC, a red flag appears on the patient's computerized record alerting the hospital staff to check for the details relating to that flag.  MRMC trains its registration staff to check all red flags when scheduling patients or checking patients in for a scheduled visit.  If the flag indicates that the patient needs a signing interpreter, MRMC will automatically arrange for an interpreter.  Once such a flag is entered into the patient's computerized record, neither the patient nor the patient's doctor needs to make a specific request for an interpreter on subsequent visits to MRMC, if scheduled through scheduling.com.  (Currently 54 of 58 potential departments utilize scheduling.com).

E.     Medical Equipment. Nothing in this Agreement will require that an electronic device or equipment constituting an appropriate auxiliary aid be used when or where its use may interfere with medical or monitoring equipment or may otherwise constitute a threat to a Patient’s medical condition

F.     Determination Not to Provide Auxiliary Aid or Service.  If, after conducting a communication assessment, MRMC determines that the circumstances do not warrant provision of an auxiliary aid or service that has been requested, Hospital Personnel shall so advise the person requesting the auxiliary aid or service and shall document in the Patient’s medical record the date and time of denial, the name and title of the Hospital Personnel who made the determination, and the basis for the determination.

G.     Maintenance of Log.  MRMC will maintain a log of each request for an auxiliary aid and service, the time and date the request is made, the Patient’s (and Companion’s, where applicable) name, the time and date of the scheduled appointment (if a scheduled appointment was made), the time and date the auxiliary aid and service was provided, or a statement that the auxiliary aid and service was not provided.  Such logs, and the documentation described in Section III.F, will be maintained by MRMC Administration.

H.     Complaint/Grievance Resolution.  MRMC Administration will maintain a written complaint/grievance resolution mechanism regarding the provision of auxiliary aids and services to Patients and Companions and will maintain records of all grievances, whether oral or written, made to MRMC and actions taken with respect thereto.  MRMC will post at appropriate places its Bill of Rights, which notifies deaf or heard of hearing persons of MRMC’s complaint/grievance resolution mechanism and to whom complaints should be made.  MRMC will maintain a written record of all grievances filed by Patients or Companions and the responses thereto.  Upon request, MRMC will provide the Patient and Companion a written response to the complaint within a reasonable time, not to exceed five business days.

I.     Prohibition of Surcharges.  All appropriate auxiliary aids and services required by this Agreement will be provided free of charge to the Patient or Companion.

J.     Individual Notice in Absence of Request.  If a Patient or a Companion who is deaf or hard of hearing does not request appropriate auxiliary aids or services but Hospital Personnel have reason to believe that such person would benefit from appropriate auxiliary aids or services for effective communication, MRMC will specifically inform the person that appropriate auxiliary aids and services are available free of charge.

K.     Communication with Inpatients and Companions.  MRMC will take appropriate steps to ensure that all Hospital Personnel having significant contact with a Patient or Companion who is deaf or hard of hearing are made aware of such person’s disability so that effective communication with such person will be achieved.  In addition, MRMC will take appropriate steps to ensure that all Hospital Personnel having significant contact with a Patient or Companion who is deaf or hard of hearing are aware of MRMC’s Program and Administrator(s).

L.    Sign Language and Oral Interpreters

MRMC will 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. 

The determination of the circumstances in which such interpreters will be provided to Patients or Companions will be made as set forth in Section III.B.2 (Assessment) above.  Examples of circumstances when it may be necessary to provide interpreters include, but are not limited to, the following:

(a)  Determination of a Patient’s medical history or description of ailment or injury;

(b)  Provision of Patients’ rights, informed consent, or permission for treatment;

(c)  Diagnosis or prognosis of ailments or injuries;

(d)  Explanation of procedures, tests, treatment, treatment options or surgery;

(e)  Explanation of medications prescribed (such as dosage, instructions for how and when the medication is to be taken and side effects or food or drug interactions);

(f)  Explanation regarding follow-up treatments, therapies, test results or recovery;

(g)  Blood donations or apheresis (removal of blood components);

(h)  Discharge planning and discharge instructions;

(i)  Provision of mental health evaluations, group and individual therapy, counseling and other therapeutic activities, including grief counseling and crisis intervention;

(j)  Explanation of complex billing or insurance issues that may arise;

(k)  Educational presentations, such as classes concerning birth, nutrition, CPR and weight management;

(l)  Explanation of living wills or powers of attorney (or their availability); and

(m)  Any other circumstance in which a qualified sign language interpreter is necessary to ensure a Patient’s rights provided by law.

The foregoing list does not imply that an interpreter must always be provided in these circumstances.  Nor does it suggest that there are not other circumstances when it may be appropriate to provide interpreters for effective communication.

3.     Chosen Method for Obtaining Interpreters.  MRMC has entered one or more arrangements with an interpreter service provider or providers (“the IS Provider”) to establish and operate a plan (“IS Plan”) to provide qualified sign language and oral interpreters at the request of MRMC.  In lieu of contracting with an IS Provider, MRMC may hire one or more qualified sign language interpreters to be available 24 hours per day.

4.     Interactive Conference System Technology.  Audio-video interpreting services can provide immediate, effective access to interpreting services seven (7) days per week, twenty-four (24) hours per day, in a variety of situations including emergencies and unplanned incidents.  If MRMC utilizes an interactive conferencing system, MRMC agrees to take appropriate steps whenever necessary to make the system effective, such as dedicating high-speed phone lines in appropriate locations for quick connection and clear picture, protecting patient confidentiality, and training staff in how to use it.

5.     Provision of Requested Interpreters in a Timely Manner. 

(a)  Provision of interpreters pursuant to a request in non-scheduled incidents.  For “non-scheduled incidents,” MRMC will make an interpreter available within: (a) thirty (30) minutes when it makes an interpreter available through either audio-video interpreting services or an on-site staff interpreter, and (b) two (2) hours when it makes an on-site interpreter available through either a contracting interpreting service or its staff interpreter who is located off-site at the time the non-scheduled incident arises.  “Non-scheduled incidents” are situations in which there are less than two (2) hours (or less than four (4) hours if a request is made between the hours of 8 p.m. and 8 a.m. or on a weekend or holiday) between the time when a Patient or a Companion makes a request for an interpreter and the time when the services of an interpreter are required.

(b)  Provision of interpreters pursuant to a request in scheduled incidents.  For “scheduled incidents,” MRMC will make an interpreter available at the time of the scheduled appointment.  “Scheduled incidents” are situations in which there are two (2) or more hours (or four (4) or more hours if a request is made between the hours of 8 p.m. and 8 a.m. or a weekend or holiday) between the time when a Patient or a Companion makes a request for an interpreter and when the services of the interpreter are required.

6.    Force Majeure Events.  The foregoing response times are subject to “force majeure” events – i.e., any response time that is delayed because of a force majeure event is excluded from the determination whether the prescribed response criteria have been met.  Force majeure events are events outside the reasonable control of MRMC, the Responsible Official or the interpreter called to respond, such as weather problems and other Acts of God, unanticipated illness or injury of the interpreter while en route to MRMC and unanticipated transportation problems (including, without limitation, mechanical failure of the interpreter’s automobile, automobile accidents and roadway obstructions other than routine traffic or congestion).

7.     Modification of Performance Standards.  In the event that the response time performance standards set forth in Section III.L.5, above, cannot be maintained despite MRMC’s good faith efforts, MRMC is entitled to request modifications of such performance standards as may be reasonable under the circumstances.  The Department will consider any such request reasonably and in good faith, and any such modification that is agreed to will be deemed an amendment to this Agreement.

8.     Compliance with Applicable Laws.  The United States consent to modification or amendment of this Agreement does not affect MRMC’s independent responsibilities under any applicable federal, state or local laws or regulations.

9.     Staff Interpreters.  MRMC may, but has no obligation to, satisfy its obligations under this Agreement by hiring qualified staff and/or contract interpreters.  Staff interpreters must meet the definition of “qualified interpreters.” Patients and Companions who are provided with staff interpreters must have the same level of coverage (for both duration and frequency) as MRMC is otherwise obligated to provide under this Agreement.  MRMC may assign other duties to staff interpreters, but the staff interpreters’ performance of those other duties will not excuse MRMC’s requirements under this Agreement.

10.     Notice to Patients and Companions Who Are Deaf or Hard of Hearing.  As soon as Hospital Personnel have determined that an interpreter is necessary for effective communication with a Patient or a Companion, MRMC will inform such person (or a family member or friend, if such person is unavailable) of the current status of efforts being taken to secure a qualified interpreter on his or her behalf.  Additional updates are to be provided thereafter as necessary until an interpreter is secured.  Notification of efforts to secure a qualified interpreter does not lessen MRMC’s obligation to provide qualified interpreters in a timely manner as required by this Agreement.

11.     Other Means of Communication.  Between the time that an interpreter is requested and when an interpreter is made available, Hospital Personnel will continue to try to communicate with the 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.  This provision in no way lessens MRMC’s obligation to provide qualified interpreters in a timely manner as required by this Agreement.

12.     Restricted Use of Certain Persons to Facilitate Communication.  Due to confidentiality, potential emotional involvement, and other factors that may adversely affect the ability to facilitate communication, MRMC may never require or coerce a family member, Companion, case manager, advocate, or friend of a Patient or Companion to interpret or facilitate communications between hospital personnel and such Patient or Companion.  Such person may be used to interpret or facilitate communication, however, if the Patient or Companion who is deaf or hard of hearing specifically requests it, if such person wishes to provide such assistance and if such use is appropriate under the circumstances, giving appropriate consideration to any privacy issues that may arise.  This provision in no way lessens MRMC’s obligation to provide appropriate auxiliary aids and services as required under this Agreement where needed for effective communication. 

M.     Notice to Community.

1. Policy Statement.  MRMC has posted and will maintain signs of conspicuous size and print at all Hospital admitting stations, the emergency department, and wherever a Patient’s Bill of Rights is required by law to be posted.  Such signs will provide, in essential part:

Sign language and oral interpreters, TTY’s, 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 Hospital Personnel or the Information Office at ____________ (voice/TTY), room ________. These signs will include the international symbols for “interpreters” and “TTY’s.”

2. Patient Handbook.  MRMC will include in all future printing 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, TTY’s, note takers, written materials, telephone handset amplifiers, assistive listening devices and systems, telephones compatible with hearing aids, closed caption decoders, and open and closed captioning.

Please ask your nurse or other hospital personnel for assistance, or contact the Information Office at ____________ (voice or TTY), room ____.

MRMC will also include in the handbook a description of MRMC’s complaint resolution mechanism.

3. Website.  MRMC will include in its website a statement to the effect of the statement set forth in Section III.D.2, above.

N.     Notice to Hospital Personnel and Physicians.  MRMC has adopted the attached Patient Care Policy concerning Communication with Deaf and Hard of Hearing Patients.  (Attached ad Exhibit A)

MRMC will distribute this document within ninety (90) days of the effective date of this Agreement to all hospital personnel and affiliated physicians (physicians with practicing or admitting privileges), to all new hospital personnel and newly affiliated physicians upon their affiliation or employment with MRMC, and to all hospital personnel on an annual basis.

O.    Training of Hospital Personnel. 

1. Personnel to Be Trained: MRMC will provide training to its employees who have significant contact with Patients, families of Patients, and Companions.  Training as provided by this Agreement will be provided to Therapists, Nurses, Nursing Assistants, Technologists, Social Workers, Chaplains, Emergency Department Staff Physicians; Department Directors, Nursing Supervisors, Senior Level Administrative Staff, Registration Clerks, Scheduling.com staff, Patient Representatives, Billing and Financial representatives, Case Managers, and Telephone Switchboard Operators.
2. Schedule of Training:

(a)    New Employees: Newly hired individuals are required to attend General Hospital Orientation typically scheduled on Day One of Employment.  Training for Accommodating the Deaf and Hard of Hearing has been included in the curriculum of General Hospital Orientation.  Documentation of New Hire General Orientation will be recorded in the individual’s Human Resources file. 

(b)    Initial Training for Current Employees: Current employees attend, at a minimum, a one-day Annual Training Day, inclusive of various significant training subjects.  Annual Training is due during the employee’s hire date anniversary month.  Training for Accommodation of the Deaf and Hard of Hearing will be included in Annual Training.  Documentation of the Initial Training for current employees is recorded in the Individual’s Human Resources file.  During the year January 1, 2006 – December 31, 2006 specific and separate record monitoring will occur to allow monitoring of initial training for these employees.  Initial training for current employees has already begun.

(c)    On Going Training: All employees are required to attend Annual Training each year.  Each year hereafter will include training as documented in the Human Resources file.  Senior Administration and Department Directors currently receive routine reports of attendance at Annual Training in order to monitor compliance with the Annual Training Requirement.

3. Training Content:

(a)  The attendee will be instructed concerning his/her responsibilities in accommodating deaf or hard of hearing individuals.

(b)  The attendee will be instructed on how effectively to identify communications requirements and preferences of individuals who are deaf or hard of hearing in their work setting. 

(c)  The attendee will be instructed on how to access the hospital policy, “Communication with the Deaf and Hard of Hearing Patient’s C-60.”

(d)  The attendee will be instructed on the procedure for accessing the Nursing Supervisor to obtain assistance for individuals who are deaf and hard of hearing.

(e)  The attendee will be instructed regarding the auxiliary aids and services at MRMC and their appropriate use. 

(f)   The attendee will be instructed on how to recognize those when qualified interpreters, TTY or other auxiliary aids or services are required in order to protect the patient’s privacy, confidentiality or right to informed unbiased information or those circumstances when appropriate personnel should be contacted to perform a communication assessment form to determine whether, TTY or other auxiliary aids and services are necessary to ensure effective communication with the patient and companion. 

4.     Affiliated Physicians.  

(a)     Training Sessions.  MRMC will annually conduct one or more training sessions on the communication and psychological needs of persons who are deaf or hard of hearing, and will invite all physicians who are affiliated in any way with MRMC (admitting or surgical privileges, etc.) to attend.  MRMC will provide training videotapes that contain substantially similar information to any affiliated physician upon request.

(b)    Written materials.  Within ninety (90) days of the effective date of this Agreement, MRMC will distribute the Patient Care Policy: Communication with Deaf and Hard of Hearing Patients to all affiliated physicians.  MRMC will request that physician’s staff members notify MRMC about Patients and Companions who are deaf or hard of hearing as soon as they schedule admissions, tests, surgeries or other health care services at MRMC.

The Department will give the Hospital twenty-one (21) days from the date it notifies the Hospital of any breach of this Agreement to cure that breach, prior to instituting any court action. 

Failure by the Department to enforce any provision or deadline of this Agreement shall not be construed as a waiver of its right to enforce other provisions or deadlines of this Agreement.