SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES AND
NORWEGIAN AMERICAN HOSPITAL
UNDER THE AMERICANS WITH DISABILITIES ACT
Background and Jurisdiction
1. The Parties to this Settlement Agreement are the United States and Norwegian American Hospital (“Respondent”).
2. Norwegian American Hospital is an acute care hospital located at 1044 North Francisco in Chicago, Illinois, in the Northern District of Illinois.
3. This matter was initiated by a complaint filed with the United States Attorney’s Office for the Northern District of Illinois against Respondent. The complaint was investigated and a compliance review undertaken by the United States Attorney’s Office under the authority granted by Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12188(b)(1)(A)(i).
4. The United States alleges that the Norwegian American Hospital discriminated against the complainant, who is deaf, by failing to provide appropriate auxiliary aids and services necessary for effective communication. Specifically, the United States alleges that the Hospital violated the ADA, 42 U.S.C. §§ 12181-12189, and the U.S. Department of Justice’s implementing regulation, 28 C.F.R. Part 36 when the complainant was not provided with a sign language interpreter, despite his and his deaf companion’s requests, during the time complainant spent in the emergency room of the Hospital on September 16, 2003.
5. The United States further alleges that the Hospital has violated the ADA, 42 U.S.C. §§ 12181-12189, and its implementing regulation, 28 C.F.R. Part 36, by failing to have:a. all required TTYs or TDDs and staff trained to use them;
b. informational and directional signage; and
c. visual alarms in all areas of the Hospital where audible alarms are provided.6. Norwegian American Hospital 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.
7. Section 302(a) of the ADA, 42 U.S.C. § 12182(a), prohibits a public accommodation from discriminating on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations by a place of public accommodation. 28 C.F.R. § 36.201(a).
8. On the basis of its investigation, the United States Attorney’s Office has determined that the complainant was denied appropriate services necessary for effective communication, in violation of 42 U.S.C. § 12182(b)(2)(A)(iii) of the Act.
9. The Parties desire to settle this matter without resorting to litigation and have, therefore, entered into this Settlement Agreement.
Definitions
10. “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, TTYs, large-print materials, acquisition or modification of equipment or devices, universal sound signalers, sonic blink strobe receivers, telephone signalers, and other methods of delivering effective communication that may have come into use or will come into existence in the future.
11. “Hospital” or “Norwegian American” means Norwegian American Hospital at 1044 North Francisco in Chicago, Illinois.
12. “Hospital Personnel” means all employees and independent contractors with contracts to work on a substantially full-time basis for Norwegian American Hospital (or on a part-time basis exclusively for Norwegian American), including, without limitation, nurses, physicians, social workers, technicians, admitting personnel, billing staff, security staff, therapists, and all volunteers who have or are likely to have direct contact with deaf or hard-of-hearing “patients” or “companions,” as defined in this Settlement Agreement.
13.“Qualified sign language interpreter,” “oral interpreter,” or “interpreter” means a person who meets the requirements of the ADA and its implementing regulations, and 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 to a deaf or hard-of-hearing “patient” or a “companion,” as defined in this Settlement Agreement. Someone who has only a rudimentary familiarity with sign language or finger spelling is not a “qualified sign language interpreter” under this Settlement 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 finer spelled communication into spoken words is not a qualified sign language interpreter. 28 C.F.R. § 36.303.1
14. “TTYs” or “TDDs” means devices that are used with a telephone to communicate with persons who are deaf or hard- of- hearing by typing and reading communications. See 28 C.F.R. § 36.104.
15. “Patient” shall be broadly construed to include any individual who is seeking or receiving health care services, including mental health services, from Norwegian American, whether as an in-patient or an out-patient.
16. “Companion” means a person who is deaf or hard- of- hearing and is one of the following: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; or
b. a person legally authorized to make health care decisions on behalf of the patient; or
c. such other person with whom the Hospital personnel would ordinarily and regularly communicate with concerning the patient’s medical condition.17. “Effective Date of this Settlement Agreement” means the date this Settlement Agreement is signed by both parties.
18. “Parties” means United States of America and Norwegian American Hospital.
19. “Aggrieved Party” means Ray Abueg. Ray Abueg is deaf and thus a person with a disability 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.
Prohibition of Discrimination20. Nondiscrimination. Norwegian American will provide appropriate auxiliary aids and services, including qualified sign language interpreters, where such aids and services are necessary, to ensure effective communication with deaf and hard-of-hearing patients and companions. Norwegian American will also provide deaf and hard-of-hearing patients and companions with the full and equal enjoyment of the services, privileges, facilities, advantages, and accommodations of the Hospital as required by this Settlement Agreement and the Americans with Disabilities Act.
21. Nondiscrimination by Association. Norwegian American will not deny equal services, accommodations, or other opportunities to any individual because of the known relationship of the person with someone who is deaf or hard- of- hearing.
22. Retaliation and Coercion. Norwegian American will not retaliate against or coerce in any way any person who is trying to exercise his or her rights under this Settlement Agreement or the Americans with Disabilities Act.
Effective Communication23. Appropriate Auxiliary Aids and Services. Norwegian American will provide to deaf or hard-of-hearing patients and companions any appropriate auxiliary aids and services that may be necessary for effective communication after making the assessment described in paragraphs 23-27. of this Settlement Agreement. Appropriate auxiliary aids and services will be provided as soon as practicable, except that the provision of sign language and oral interpreters must be within the time frame described in paragraph 37 of this Settlement Agreement.
24. 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 Hospital personnel who are otherwise primarily responsible for coordinating and/or providing patient care services, in consultation with the person with a disability, where possible. A Model Communication Assessment Form is attached to this Settlement Agreement as Exhibit A, and Norwegian American will develop a form similar to Exhibit A within thirty (30) days of the effective date of this Settlement Agreement. The assessment made by Hospital personnel 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;
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.25. 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 an appointment is scheduled for the deaf or hard-of-hearing patient or on the arrival of the deaf or hard-of-hearing patient or companion at the Hospital, whichever is earlier. Hospital personnel will perform and document, in the deaf or hard-of-hearing patient’s medical chart, a communication assessment as part of each initial in-patient assessment. In the event that communication is not effective, Hospital personnel will reassess which appropriate auxiliary aids and services are necessary, in consultation with the person with a disability, where possible.
26. Ongoing Relationships. If a deaf or hard-of-hearing patient or a companion has an ongoing relationship with the Hospital, with respect to each of these subsequent visits, Norwegian American will continue to provide the appropriate auxiliary aids or services to the deaf or hard-of-hearing patient or his or her companion without requiring a request for the appropriate auxiliary aids or services by the patient or companion for each visit. Hospital personnel will keep appropriate records that reflect the ongoing provision of auxiliary aids and services to deaf or hard-of-hearing patients and companions, such as notations in the patients’ medical charts.
27. Medical Concerns. Nothing in this Settlement 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 the patient’s medical condition.
28. Determination Not to Provide Appropriate Auxiliary Aid or Service. If, after conducting an assessment, Norwegian American determines that the circumstances do not warrant provision of an appropriate auxiliary aid or service, Hospital personnel will so advise the person requesting the auxiliary aid or service and will document the date and time of the denial, the name and title of the Hospital personnel who made the determination, and the basis for the determination. A copy of this documentation will be provided to the deaf or hard-of-hearing patient (and companion, if applicable); will be maintained with the Auxiliary Aid & Service Log described in paragraph 30 of this Settlement Agreement; and will be placed in the patient’s medical chart.
29. Administrators. Norwegian American will designate at least one but in no event more than four employees at the Hospital, who will be designated Administrator or Co-Administrators, and at least one of whom 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 and qualified sign language and oral interpreters. The Administrator or 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. Norwegian American will circulate and post broadly within the Hospital the name, telephone number, function, and office location of the Administrator, including a TTY telephone number, through which the Administrator or Co-Administrator on duty can be contacted twenty-four (24) hours a day seven days a week by deaf or hard-of-hearing patients and companions in order to obtain assistance. The Administrator or Co-Administrators will be responsible for the complaint resolution mechanism described in paragraph 31 of this Settlement Agreement.
30. Auxiliary Aid and Service Log. Norwegian American will maintain a log of each request for an appropriate auxiliary aid and service, the time and date the request is made, the name of the deaf or hard-of-hearing patient (and companion, if applicable), the time and date of the scheduled appointment (if a scheduled appointment was made), the nature of the auxiliary aid or service provided, the time and date the appropriate auxiliary aid and service was provided, or a statement that the appropriate auxiliary aid and service was not provided. Such logs will be maintained by the Administrator for the entire duration of the Settlement Agreement, and will be incorporated into the quarterly Compliance Reports as described in paragraph 66 of this Settlement Agreement.
31. Complaint Resolution. Norwegian American will maintain an effective complaint mechanism for the resolution of disputes regarding effective communication with deaf and hard-of-hearing patients and companions. Norwegian American will maintain records of all complaints regarding effective communication, whether oral or written, made to Norwegian American and actions taken with respect thereto. Norwegian American will notify deaf and hard-of-hearing persons of Norwegian American’s complaint resolution mechanism, to whom complaints should be made, and of the right to receive a written response to the complaint if requested. Copies of all complaints or notes reflecting oral complaints and the responses thereto will be maintained by the Administrator for the entire duration of the Settlement Agreement. Upon request, Norwegian American will provide the deaf or hard-of-hearing patient and/or companion notice of a right to a written response to the complaint within thirty-six (36) hours of the request.
32. Prohibition of Surcharges. All appropriate auxiliary aids and services required by this Settlement Agreement will be provided free of charge to the deaf or hard-of-hearing patient and/or companion.
33. Individual Notice in Absence of Request. If a deaf or hard-of-hearing patient and/or companion does not request appropriate auxiliary aids or services but Hospital personnel have reason to believe, after conducting the assessment described in paragraphs 24-28 of this Settlement Agreement, that such person would benefit from appropriate auxiliary aids or services for effective communication, Norwegian American will specifically inform the deaf or hard-of-hearing patient and/or companion that appropriate auxiliary aids and services are available free of charge.
34. Communication with Patients and Companions. Norwegian American will take appropriate steps to ensure that all Hospital personnel having contact with a deaf or hard-of-hearing patient or a companion are made aware of such person’s disability so that effective communication with such person will be achieved. In addition, Norwegian American will take appropriate steps to ensure that all Hospital personnel having contact with a deaf or hard-of-hearing patient or companion are aware of: (a) Norwegian American’s policies and procedures implementing this Settlement Agreement and the ADA; (b) Norwegian American’s policies and procedures governing requests for appropriate auxiliary aids and services by deaf and hard-of-hearing patients and companions; and (c) the role of the Administrators described in paragraph 29 of this Settlement Agreement.
Sign Language and Oral Interpreters35. Circumstances Under Which Interpreters Will Be Provided. The Hospital 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. The determination of when such interpreters shall be provided to Patients or Companions shall be made as set forth in paragraphs 24-28 (Assessment) above. The following are examples of circumstances when it may be necessary to provide interpreters:
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. determination and explanation of patient’s diagnosis or prognosis, and current condition;
d. explanation of procedures, tests, treatment, treatment options or surgery;
e. religious services and spiritual counseling;
f. explanation of living wills or powers of attorney (or their availability);
g. diagnosis or prognosis of ailments or injuries;
h. explanation of procedures, tests, treatment, treatment options, or surgery;
i. 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);
j. determination of any condition or allergy of patient that may affect choice of medication;
k. explanation regarding follow-up treatments, therapies, test results or recovery;
l. blood donations or apheresis (removal of blood components);
m. discharge planning and discharge instructions;
n. provision of mental health evaluations, group or individual therapy, counseling and other therapeutic activities, including but not limited to grief counseling and crisis intervention;
o. explanation of complex billing or insurance issues that may arise;
p. educational presentations, such as classes concerning birthing, nutrition, CPR, and weight management;
q. religious services and spiritual counseling; and
r. any other circumstance in which a qualified sign language interpreter is necessary to ensure a patient’s rights provided by law.
The foregoing list of circumstances is neither exhaustive nor mandatory, and shall not imply that there are not other circumstances when it may be appropriate to provide interpreters for effective communication nor that an interpreter must always be provided in these circumstances.36. Chosen Method for Obtaining Interpreters. Within thirty (30) days upon entry of this Settlement Agreement, the Hospital will enter into an agreement with one or more sign language interpreter services to establish and operate a program to provide qualified sign language and oral interpreters at the request of the Hospital.
37. Provision of Sign Language Interpreters Throughout a Hospitalization. Once a deaf or hard-of-hearing patient has been hospitalized and the assessment described in paragraphs 24-28 of this Settlement Agreement has determined that a qualified sign language interpreter is necessary to achieve effective communication during the hospitalization of the patient, Norwegian American will develop a policy and implement procedures to make sign language interpreters available to cover important post-surgery sessions, doctor rounds, and other physician-patient meetings, without the patient or companion having to renew the request for a sign language interpreter. Norwegian American will provide notice to all deaf and hard-of-hearing patients and companions of this policy.
38. Provision of Interpreters in a Timely Manner.a. Non-scheduled Interpreter Requests; Time Standards. Norwegian American will meet the following time standards for providing qualified sign language interpreters to deaf or hard-of-hearing patients and/or companions. Norwegian American will maintain a response time of one (1) hour in eighty percent (80%) of non-scheduled interpreter requests within any six (6) month period, measured from the time beginning ten (10) minutes after it is determined that an interpreter is necessary for effective communication with a deaf or hard-of-hearing patient or companion. “Non-scheduled interpreter requests” means a request for an interpreter which is made during the appearance at the Hospital by a deaf or hard-of-hearing patient or companion for examination or treatment that was not scheduled prior to the time such patient or companion came to the Hospital. Hospital personnel will make requests for interpreters within ten (10) minutes of the time a request is first made for an interpreter by a deaf or hard-of-hearing patient or companion.
b. Scheduled Incidents. For “scheduled incidents,” Norwegian American will make a qualified sign language interpreter available at the time of the scheduled appointment. “Scheduled incidents” are situations in which there are two (2) or more hours between the time when a deaf or hard-of-hearing patient or companion makes a request for an interpreter and when the services of the interpreter are required. If an interpreter fails to arrive for the scheduled incident, the Hospital will immediately call the interpreter service for another qualified sign language interpreter upon notice that the interpreter failed to arrive.
c. Data Collection on Interpreter Response Time and Effectiveness: Feedback Forms Norwegian American will monitor the performance of each qualified sign language interpreter it uses to provide communication to deaf or hard-of-hearing patients or companions. As part of the Auxiliary Aid and Service Log, described in Section paragraph 30 of this Settlement Agreement, the Hospital shall collect information regarding response times for each request for an interpreter. Norwegian American shall also prepare a form requesting feedback concerning the timeliness and effectiveness of interpreter services. Such feedback form shall be provided to each deaf or hard-of-hearing patient or companion who requested an interpreter. Norwegian American shall use the feedback forms for monitoring and evaluating the performance of each interpreter it provides to patients and companions. The Administrator shall maintain the completed feedback forms for the Term of this Settlement Agreement.39. Modification of Performance Standards. In the event that the response time standards described in paragraph 38 of this Settlement Agreement cannot be maintained despite Norwegian American’s good faith efforts, the Hospital is entitled to request the consent of the United States to such modifications of the response time standards as may be reasonable under the circumstances. The United States will consider any such request reasonably and in good faith, and any such modification to which the parties agree will be deemed an amendment to this Settlement Agreement.
40. Compliance with Applicable Laws. The consent of the United States in this Settlement Agreement does not affect Norwegian American’s independent responsibilities under any applicable federal, state, or local laws or regulations.
41. Staff Interpreters. Norwegian American may, but has no obligation to, satisfy its sign language interpreter obligations under this Settlement Agreement by hiring qualified staff and/or contract interpreters. Staff interpreters must meet the definition of “qualified sign language interpreter,” as detailed in this Settlement Agreement. Deaf or hard-of-hearing patients and companions who are provided with staff interpreters must have the same level of coverage, for both duration and frequency, as the Hospital is otherwise obligated to provide under this Settlement Agreement. Norwegian American may assign other duties to staff interpreters, but the staff interpreters’ performance of those other duties will not excuse the Hospital’s requirements under this Settlement Agreement.
42. Notice to Deaf or Hard-of-Hearing Patients and Companions. As soon as Hospital personnel have determined that a qualified sign language interpreter is necessary for effective communication with a deaf or hard-of-hearing patient or companion, Norwegian American will inform such a person (or a family member or friend, if such person is not available) of the current status of efforts being taken to secure a qualified interpreter on his or her behalf. The Hospital will provide additional updates to the patient or companion as necessary until an interpreter is secured. Notification of efforts to secure a qualified sign language interpreter does not lessen Norwegian American’s obligation to provide qualified interpreters in a timely manner as required by paragraph 38 of this Settlement Agreement.
43. Other Means of Communication. Norwegian American agrees that between the time an interpreter is requested and the time an interpreter arrives at the Hospital to interpret, Hospital 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 Norwegian American’s obligation to provide qualified sign language interpreters in a timely manner as required by paragraph 38 of this Settlement Agreement.
44. 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, Norwegian American may never require or coerce a family member, case manager, advocate, or friend of a deaf or hard-of-hearing patient or companion to interpret or facilitate communications between Hospital personnel and such patient or companion. In any case, such person may be used to interpret or facilitate communication only if the deaf or hard-of-hearing patient or companion does not object; if such person wishes to provide such assistance; if such use is necessary or appropriate under the circumstances, giving appropriate consideration to any privacy issues that may arise, and if documentation of patient’s waiver of a qualified sign language interpreter is made in the patient’s chart or records. This provision in no way lessens Norwegian American’s obligation to provide appropriate auxiliary aids and services as required under this Settlement Agreement.
Technology45. Public Telephones. As soon as practicable but no later than sixty (60) days after the entry of this Agreement, Norwegian American will provide the following:
a. TTY's Required in Specific Locations. The Hospital will provide a TTY at each public telephone location in or adjacent to an emergency department, recovery room, or waiting room. Standards §§ 4.1, 4.31.9. To satisfy this provision, the Hospital can permanently install the required TTY's next to the public telephone location or use portable TTYs in nearby locations free of charge to the user. If portable TTYs are made available, directional signage shall be provided to the nearest TTY. Such directional signage shall include the international TDD symbol. Standards 4.30.7(3). There shall be one portable TTY for the emergency department, one for the recovery room, and one for the waiting room.
b. Signs at Phone Banks Indicating the Location of TTY's. Wherever a bank of two or more public telephones are available but TTY's are not permanently installed, the Hospital will post signs indicating the location of the nearest text telephone. Such directional signage shall include the international TDD symbol. Standards 4.30.7(3).
c. Volume Control and Telephones. The Hospital will ensure that no less than twenty-five (25) percent of all of its public telephones are equipped with volume control, plus at least one public telephone at each of the following locations: in or adjacent to the emergency department, recovery room, or waiting room; at each telephone bank of two or more telephones; and on every floor. Standards, 4.1.3(17)(a-b). Each volume control telephone shall comply with 4.31.5(2) of the Standards. The Hospital will ensure that volume control phones are dispersed among all public telephones throughout the Hospital. Standards, 4.1.3(17)(b). They shall be identified by a sign containing a depiction of a telephone handset with radiating sound waves. 4.30.7(2).
f. Hearing Aid Compatible Telephones. The Hospital will ensure that at least one hearing aid compatible telephone is provided at each telephone bank of two more telephones and that there is at least one hearing aid compatible telephone on each floor where there is one public pay phone. Standards, 4.1.3(17)(a). At least one hearing aid compatible telephone shall be located at each of the following locations: in or adjacent to the emergency department, recovery room, or waiting room.
g. Storage and Availability of Equipment. Portable equipment for use in public areas shall be stored in places that are readily accessible to all Hospital personnel who have client contact at all times of the day and night. All Hospital 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, etc.) closest to the public phone for which the equipment is to be made available. Such equipment shall be made available to patients or companions who are deaf or hard- of- hearing as soon as practicable but no more than ten (10) minutes from the time of the person’s request.46. Telephones in Patient Rooms. Within sixty (60) days of the entry of this Settlement Agreement:
a. Portable Access Technology - Defined. The Hospital will make available portable access technology. Such technology, as referred to in this section, shall include TTY's, volume control telephones, and telephones that are hearing aid compatible.
b. Portable Access Technology - General Obligation. The Hospital will make portable access technology available to patients and companions who are deaf or hard-of- hearing and who are admitted to (or are accompanying patients who are admitted to) rooms equipped with a telephone. In units where patients normally have phones in their rooms, the portable tty will be left in the room for the duration of the patient’s stay so the patient can receive as well as make calls. In units where patients normally do not have telephones in their rooms, if hearing patients are given access to common area telephones other than the public phones identified in this Settlement Agreement, the Hospital will maintain in each such unit appropriate portable access technology that can be used by patients and companions who are deaf or hard- of- hearing so that such persons have equal access to make outgoing calls and receive incoming calls as do hearing persons.
c. Electrical Outlets. Each patient room with a telephone shall have an electrical outlet within four feet of the telephone connection to facilitate the use of a TTY device, or the Hospital will provide when needed a heavy-duty extension cord for patient rooms that are not so equipped.
d. Timeliness. The Hospital 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. The Hospital will notify all relevant Hospital personnel of the availability and location of this equipment.47. Visual Alarms.
a. Areas of Common Use. Within nine (9) months of the entry of this Settlement Agreement, the Hospital will add visual alarms to the main lobby and cafeteria, and all public restrooms in the Hospital.
b. Patient Rooms. Within ninety (90) days of the entry of this Settlement Agreement, the Hospital will make portable visual alarms available for patient rooms when a patient or companion who is deaf or hard- of- hearing is residing in or is anticipated to spend significant periods of time in such a room. This requirement only applies to those patient rooms in which hearing patients are reasonably able to hear an audible alarm, whether the audible alarm speaker is located in the room itself, in the hallway, or in another relatively close location.
c. Exceptions.(1) Standard Health Care Alarm Design Practices. Placement of visual alarms may be modified to suit any standard health care alarm design practices employed by the Hospital. The Hospital shall not be required to provide visual alarms in areas where Patients would not normally be expected to evacuate themselves in the event of an emergency, such as a neo-natal intensive care unit.
(2) Health Considerations. The Hospital shall not be required to provide portable visual alarms in a patient room if a person who may suffer from seizures that may be triggered by a visual alarm is reasonably expected to spend significant amounts of time in the room.48. Captioning and Decoders.
a. Televisions with Captioning and Closed Caption Decoders. The Hospital currently has and shall maintain in all patient rooms with televisions, televisions with the built-in capability to display captions. Within ninety (90) days of the entry of this Settlement Agreement, Norwegian American will have closed captioning operating in all public areas where there are televisions with closed captioning; televisions in public areas without built-in closed captioning capability will be replaced with televisions that have such capability.
b. Duty to Provide Programs in a Manner That is Accessible to Persons With Hearing Impairments.(1) It is expressly agreed that the Hospital has no obligation to provide captions on any program broadcast over the public airways or commercial cable television services, where such captions are not already integrated into the program.
(2) Beginning no later than thirty (30) days from the signing of this Settlement Agreement, any time the Hospital solicits a third party, parent company, or affiliated health care provider to produce or provide video programs that may be broadcast within the Hospital to patients or companions who are deaf or hard- of- hearing, the Hospital will ensure that the program is captioned, unless, under the circumstances, doing so would impose an undue burden. 28 C.F.R. § 36.303. Commercial videos available to the general public shall not be subject to this requirement.
(3) Beginning no later that sixty (60) days from the entry of this Settlement Agreement, any time the Hospital produces internally a pre-recorded program for broadcast within the Hospital, the Hospital will ensure that the program is made accessible to patients and companions who are deaf or hard- of- hearing, whether by captioning such program or by providing a transcript or sign language interpreter whenever it is viewed by a patient or companion who is deaf or hard- of- hearing. If the program is not captioned, the method of access delivery must be tailored to the needs of the patient or companion who is deaf or hard-of- hearing. For instance, if the person does not know sign language, the Hospital may provide effective communication through a transcript. In most circumstances, captioning will be regarded as providing effective communication with all persons who are deaf or hard-of-hearing, regardless of the communication skills and history of such persons (though repeated screenings may be necessary, if the person who is deaf or hard- of- hearing cannot read English at the rate required to keep pace with the audible portion of the program). If, however, the contents of a program are sufficiently important to require precise communication of its contents, the Hospital will take additional measures to ensure effective communication.
(4) Beginning no later than ninety (90) days from the signing of this Settlement Agreement, any time the Hospital produces its own live broadcast, the Hospital will make most such programs as accessible to patients and companions who are deaf or hard- of- hearing as they are to others. Captioning is one way, but not the only way, to make such programs accessible to patients and companions who are deaf or hard- of- hearing. The Hospital can also choose to provide sign language interpreters (if the person who is deaf or hard- of- hearing uses sign language) or written scripts prepared in advance of the live broadcast. In order to determine which programs should be captioned, the Hospital may prioritize and consider such factors as the importance and length of the program, as well as any significant difficulty or expense in captioning the program or displaying the captions, given the location of its filming or viewing.49. Client Education. The Hospital shall ensure that each patient and companion who is deaf or hard- of- hearing who is provided with portable access technology is appropriately directed as to the proper use of such equipment.
50. Acquisition of Additional Equipment. In addition to the equipment required above, the Hospital shall purchase and/or rent such additional equipment as is reasonably needed to replace defective units. The Hospital shall also monitor developments in technology and shall upgrade such equipment when and if it deems it reasonable and appropriate to do so.
Notice to Community51. Policy Statement. Within ninety (90) days of the entry of this Settlement Agreement, the Hospital shall post and 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 shall be to the following effect:
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.”
52. Advertisements. Within sixty (60) days of the signing of this Settlement Agreement, the Hospital will take appropriate steps to publicize in the community the Hospital's commitment to provide all of its services to patients and companions who are deaf or hard- of- hearing. Such publicity shall be deemed satisfied by the purchase of reasonable advertising space at least twice in newspapers of general circulation serving the same community as is served by the Hospital, which advertisements include a statement that all appropriate auxiliary aids and services, including qualified sign language interpreters and TTY's, will be provided free of charge upon request, and include appropriate instructions regarding access to the Information Office at the Hospital. Annually thereafter, the Hospital shall take reasonable steps to publicize the Hospital's commitment to provide all of its services to patients and companions who are deaf or hard- of- hearing.
53. Website. The Hospital will include on its website the policy statement described above in this paragraph 51.
54. Patient Handbook. The Hospital 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, TTY's, notetakers, computer-assisted real time transcription services, 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 Hospital programs.
Please ask your nurse or other Hospital personnel for assistance, or contact the Information Office at _________________ (voice or TTY), room ___________________.The Hospital will also include in its Handbook a description of its complaint resolution mechanism.
55. Format of Notices. Within sixty (60) days of the effective date of this Agreement, the Hospital will make the following information available in American Sign Language (ASL) using videotape, DVD, or CD-ROM format:a. the Patient’s Bill of Rights
b. health care directives;
c. information regarding the Hospital’s policies and procedures governing free sign language interpreter services, including the contents of the Hospital’s feedback form concerning the effectiveness and timeliness of interpreters that the Hospital provides, and
d. complaint resolution procedures.
Notice to Hospital Personnel and Physicians56. The Hospital shall publish, in an appropriate form, a written policy statement regarding the Hospital's policy for effective communication with persons who are deaf or hard- of -hearing for use by persons working at the Hospital. 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, relative, or a 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, TTY’s, note takers, written materials, telephone handset amplifiers, assistive listening devices and systems, telephones compatible with hearing aids, televisions with captioning or closed caption decoders, and open and closed captioning of most hospital programs, will be provided free of charge. 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 Program Administrator at ____ and reachable at ______. This offer and advice must likewise be made in response to any overt request for appropriate auxiliary aids or services.
The Hospital will distribute this document within thirty (30) days of the entry of this Settlement Agreement to all Hospital personnel and both employed and affiliated physicians (physicians with practicing or admitting privileges), and to all new Hospital personnel and newly employed or affiliated physicians upon their affiliation or employment with the Hospital. In addition, this statement will also be distributed to all Hospital personnel and employed and affiliated physicians on an annual basis.
Training57. Training of Administrators. Norwegian American will provide special mandatory training for the Administrator(s) within sixty (60) days of (him or her)(them) being designated as provided in paragraph 29 of this Settlement Agreement. Such training will be sufficient in duration and content to train the Administrator in:
a. the health care needs of the deaf and hard- of- hearing;
b. the various degrees of hearing impairment, language, and cultural diversity in the deaf community;
c. identification of communication needs of persons who are deaf;
d. the unique needs and problems encountered by late-deafened individuals;
e. the psychological implications of deafness and its relationship to interaction with hearing health care professionals;
f. recommended and required charting procedures governing requests for auxiliary aids and services;
g. types of auxiliary aids and services available in the community and Hospital;
h. the proper use and role of qualified sign language interpreters;
i. making and receiving calls through TTYs and the relay service;
j. the Hospital’s complaint resolution procedure described in paragraph 31 of this Settlement Agreement; and
k. any other applicable requirements of this Settlement Agreement.58. Training of Emergency Department Personnel. Except for affiliated physicians, who are governed by paragraph 65 of this Settlement Agreement, Norwegian American will provide special mandatory in-service2 training to Hospital personnel who have patient responsibility and who work or volunteer in the emergency department. The training will address the special needs of deaf and hard-of-hearing patients and companions and will include the following objectives:
a. to promptly identify communication needs and preferences of persons who are deaf or hard- of- hearing;
b. to secure qualified interpreter services as quickly as possible when necessary; and
c. 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).
Such training must be provided within 90 days of the effective date of this Settlement Agreement and will be conducted annually thereafter.59. Training of Employee Physicians. Norwegian American will provide specialized mandatory in-service training to physicians who are employed by the Hospital. This training will include the following objectives:
a. to promptly identify communication needs and preferences of patients and companions who are deaf or hard- of- hearing;
b. to secure qualified interpreter services as quickly as possible when necessary; and
c. to ensure that their staff members notify Norwegian American of deaf and hard-of-hearing patients and companions as soon as patients schedule admissions, tests, surgeries, or other health care services at the Hospital.
Such training must be provided within 120 days of the signing of this Settlement Agreement and will be conducted annually thereafter.60. Training of Psychiatric Personnel and Social Workers. Norwegian American will provide specialized mandatory in-service training to Hospital personnel with patient responsibility who work in the Department of Psychiatry (or its equivalent) or are members of the Social Work Department (or its equivalent). This training will include the following objectives:
a. to promptly identify communication needs and preferences of deaf or hard-of- hearing Patients and Companions;
b. to secure qualified interpreter services as quickly as possible when necessary;
c. information concerning the existence in the Hospital of an Administrator, as detailed in paragraph 28 of this Settlement Agreement
c. to facilitate appropriate interaction between deaf or hard-of-hearing patients and other patients, when appropriate (e.g., group therapy sessions and other times when interaction with persons other than Hospital personnel is encouraged).
Such training must be provided within 120 days of the effective date of this Settlement Agreement and will be conducted annually thereafter.61. Training of Telephone Operators. All Hospital personnel who receive incoming telephone calls from the public will receive special instructions by Norwegian American on using TTYs or relay services to make, receive and transfer telephone calls and will receive training generally on the existence in the Hospital of an Administrator, as detailed in paragraph 29 of this Settlement Agreement, and the complaint resolution process, as described in paragraph 31 of this Settlement Agreement. Such training must be provided within 60 days of the signing of this Settlement Agreement and will be conducted annually thereafter.
62. Training of Other Key Personnel. Except for affiliated physicians, who are governed by paragraph 64 of this Settlement Agreement, Norwegian American will also provide special ADA training to the following Hospital personnel not otherwise trained as provided above: all clinical directors and nursing supervisors; personnel who staff the admissions desk (or its equivalent for in-patient registration), a central registry desk (or its equivalent for out-patient registration), and/or a general information desk; all triage nurses and other triage professionals; and heads of each department in which communication with patients and companions occurs. Hospital personnel responsible for billing and insurance issues who routinely interact with Patients and Companions will receive special training on the availability of auxiliary aids and services and the existence in the Hospital of an Administrator, as described in paragraph 29 of this Settlement Agreement. Such training must be provided within 120 days of the effective date of this Settlement Agreement and will be conducted annually thereafter.
63. Training of New Employees. Norwegian American will provide the training specified above to new Hospital personnel within thirty (30) days after the commencement of their services for Norwegian American. Such training must be comparable to training provided to specific departments as necessary. A screening of a video of the original training will suffice to meet this obligation.
64. Training Attendance Sheets. Norwegian American will maintain attendance sheets of all training conducted pursuant to paragraphs 57-63 of this Settlement Agreement, which will include the names and respective job titles of the attendees, as well as the date, time, and location of the training session.65. Training of Affiliated Physicians.
a. Training Sessions. Norwegian American will annually conduct one or more training sessions on the communication needs of persons who are deaf or hard-of- hearing and will invite all physicians who are affiliated in any way with Norwegian American (admitting or surgical privileges, etc.) to attend. Norwegian American will provide training videotapes that contain substantially similar information to any affiliated physician upon request.
b. Written materials. Within one hundred and twenty (120) days of the effective date of this Settlement Agreement, Norwegian American will distribute a set of materials to all affiliated physicians. These materials will contain at least the following: (1) Norwegian American’s policy statement for persons working at the hospital as described in paragraph 56 and any relevant forms; and (2) a request that physicians’ staff members notify Norwegian American of those deaf and hard-of-hearing Patients and Companions as soon as they schedule admissions, tests, surgeries, or other health care services at a Hospital.
Reporting, Monitoring and Violations66. Compliance Reports. Beginning three months after the effective date of this Settlement Agreement and every six months thereafter for the entire duration of the Settlement Agreement, Norwegian American will provide a written report (“Compliance Report”) to the U.S. Attorney’s Office regarding the status of its compliance with this Settlement Agreement. The Compliance Report will include data relevant to the Settlement Agreement, including but not limited to:
a. the number of requests for qualified sign language interpreters received by Norwegian American by deaf and hard-of-hearing patients and companions;
b. the number of times a qualified sign language interpreter was provided by Norwegian American;
c. the number of times Norwegian American denied a request for a qualified sign language interpreter and the reason for the denial;
d. the number of times a request for a qualified sign language interpreter was accepted by Norwegian American but the interpreter failed to appear and the reasons for the failure;
e. the date and the time a qualified sign language interpreter was requested by a deaf or hard-of-hearing patient or companion and the date and time the interpreter actually began interpreting for such patient or companion;
f. an explanation of the reasons for the delay in obtaining a qualified sign language interpreter in those cases where the response time, as defined by paragraph 38 of this Settlement Agreement, is more than one (1) hour for any request; and
g. the number of complaints received by Norwegian American at the Hospital by 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.Norwegian American will maintain appropriate records to document the information contained in the Compliance Reports and will make them available, upon request, to the U.S. Attorney’s Office. The Compliance Reports shall be quarterly during the term of this Settlement Agreement.
67. Complaints. During the Term of this Settlement Agreement, Norwegian American will notify the U.S. Attorney’s Office if any person commences a lawsuit, complaint, charge, or grievance alleging that Norwegian American 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 Norwegian American 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 Norwegian American relevant to the allegation. Norwegian American will reference this provision of the Settlement Agreement in the notification to the U.S. Attorney’s Office.
Compensatory Relief for Complainant and Release68. Within ten (10) days of the entry of this Settlement Agreement, the Hospital will send by certified mail, return receipt requested, a check in the amount of ten thousand ($10,000) dollars made out to Roy Abueg. This check is compensation for the effects of the alleged discrimination suffered as described in paragraph 4. The check shall be mailed to: Office of the United States Attorney, 219 South Dearborn Street, Chicago, Illinois 60614, Attn: Joan Laser.
69. Within five (5) days of the effective date of this Agreement, the United States will deliver to counsel for the Hospital, a release signed by Roy Abueg. The release will be substantially in the form of Exhibit B.
Miscellaneous70. Term of the Settlement Agreement. This Settlement Agreement whall be in effect for three (3) years from the date hereof, after which time the Agreement shall end; provided, however, the Agreement shall terminate in two years from the effectuve date if both of the following conditions are met: (1) Norwegian is in compliance as of the second anniversary of the effective date of this Agreement, with all provisions and obligations set forth in the Agreement; and (2) in the event that there has been an allegation of a violation of any of the aforesaid paragraphs, there has been an investigation and response by Norwegian that the United States considers to be effective, timely and adequate.
71. Changing Circumstances. During the term in which this Settlement Agreement 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 sign language or oral interpreters or developments in technology to assist or improve communications with persons who are deaf or hard-of-hearing. If the Hospital determines that such changes create opportunities for communicating with patients and companions who are deaf or hard-of- hearing more efficiently or effectively than is required under this Agreement, or create difficulties not presently contemplated in the provision of appropriate auxiliary aids and services, it may propose changes to this Agreement by presenting written proposals to the United States Attorney’s Office. Such changes will then be made to the Agreement if the United States, upon review, grants its approval, which approval will not be unreasonably withheld.
72. Binding. This Settlement 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.
73. Non-Waiver. Failure by any party to seek enforcement of this Settlement 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.
For the United States of America:
Date: 4-18-05
PATRICK J. FITZGERALD
United States Attorney
By: _________________________________
JOAN LASER
Assistant United States Attorney
219 S. Dearborn Street - 5th Floor
Chicago, Illinois 60604
(312) 353-1857
For Norwegian American Hospital:
Date: 4-18-05
_______________________________
THOMAS F. GING
Hinshaw & Culbertson
222 N. LaSalle Street - Suite 300
Chicago, Illinois 60601
(312) 704-3706
1Citations to statutes and regulations for certain provisions of this Settlement Agreement are given to indicate the legal source of such provisions. They are not intended to and will not be used to limit, expand, modify, or interpret such provisions. (Back)
2“In-service” for purposes of this Settlement Agreement includes, without limitation, such means of training or familiarization of Hospital personnel as are customarily utilized by Norwegian American including, without limitation, written policies and procedures, videotapes, training materials, training sessions, seminars, conferences, and the like. (Back)
Exhibit A
Model Communication Assessment Form
We ask this information so we can communicate effectively with patients and/or companions who are deaf or hard of hearing effectively. All communication aids and services are provided FREE OF CHARGE. If you need further assistance, please ask your nurse or other hospital personnel.
Date: ______________________________
Name of Patient or Companion: ______________________________
Nature of Disability:
____ Deaf
____ Hard of Hearing
____ Speech Impairment
____ Other: ____________________________________________
Relationship to Patient:
____ Self
____ Family Member
____ Friend
____ Other: ____________________________________________
Does the person with a disability want a professional sign language or oral interpreter?
____ Yes. Choose one (free of charge):
____ American Sign Language (ASL)
____ Signed English
____ Oral interpreter
____ Other. Explain: ____________________________________________
____ No.
Which of the following would be helpful for the person with a disability (free of charge)?
____ TTY/TDD (text telephone)
____ Assistive listening device (sound amplifier)
____ CART: Computer-assisted Real Time Transcription
____ Qualified note-takers
____ Writing back and forth
____ Other. Explain: ____________________________________________
If the person with a disability, or the patient who the person with a disability is with, is ADMITTED to the hospital, which of the following should be provided in the patient room?
____ Telephone handset amplifier
____ Telephone compatible with hearing aid
____ Closed caption decoders for television set
____ TTY/TDD
____ Flasher for incoming calls
____ Paper and pen for writing notes
____ Other. Explain: ____________________________________________
Any questions?
Please call ____________________ (voice), ____________________ (TTY), or visit us during normal business hours. We are located in room __________.
(Return to Agreement)
EXHIBIT B
RELEASE
I, Roy Abueg, execute this Release for the benefit of Norwegian American Hospital (the “Hospital”).
WHEREAS, I originally claimed that the Hospital discriminated against me which resulted in a complaint (the "Complaint”) filed with the United States Attorneys Office for the Northern District of Illinois (the "United States"), because of the Hospital's alleged failure to provide appropriate auxiliary aids and services necessary for effective communication;
WHEREAS, the United States engaged in settlement negotiations on behalf of itself and me;
WHEREAS, the United States and the Hospital have agreed to a settlement in this matter (the "Settlement"),
WHEREAS, the settlement reached in the Release is contingent on my execution of this Release:
NOW THEREFORE, in consideration of the mutual promises and covenants contained herein and in the Release and in consideration of the payment to me of the sum of ten thousand ($10,000.00) dollars as set forth in the Settlement Agreement, I agree as follows:
1. I hereby release and forever discharge the Hospital, its subsidiaries, successors, assigns, shareholders, directors, officers, agents, heirs, and current and former employees from any and all causes, suits, reckonings, whether in law or equity, known or unknown, and claims for attorneys’ fees, costs, interest and claims for any other damages, whether that be compensatory, exemplary, punitive or any other form, and any other claim whatsoever, which I now have or have ever had, relating to or arising (or could have arisen) from my charge of discrimination or the allegations of this Settlement Agreement attached hereto.
2. I agree and promise that I will not file suit in any judicial or administrative forum against the Hospital concerning any allegations made in my charge or in the Settlement Agreement attached hereto.
3. I understand and agree that I am settling and releasing my claims against the Hospital. I understand the legal significance of this Release and have had the opportunity to consult with legal counsel concerning the terms and conditions of this Release.
4. This Release is a two-page document. By signing below, I agree to all the terms contained in this Release. I further acknowledge that I have entered into this Release voluntarily and of my own free will.
_____________________________
Roy Abueg
Date: __________, 2005
(Return to Agreement)
December 29, 2005