UNITED STATES DISTRICT COURT
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The United States, Norman Posner and Queens Independent Living Center, Inc. (collectively referred to as “plaintiffs”) initiated these separate actions pursuant to Title III of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12181-12189, and the Department of Justice’s implementing regulation, 28 C.F.R. Part 36, alleging, inter alia, that defendants violated title III of the ADA by discriminating on the basis of disability against persons who are deaf and those related to or associated with them. The complaints allege, inter alia, that defendant Parkway Hospital (“Parkway” or the “Hospital”), its President and Chief Operating Officer (collectively referred to as “defendants”), did not provide a qualified sign language interpreter for Sarah Posner or her deaf husband during Mrs. Posner’s extended hospitalization at the Hospital and that defendants imposed communication responsibilities on the Posners’ grown children, who were expected to act as conduits for information between the family, the Hospital, and the staff. Such failure to do so prevented Mr. Posner from obtaining complete information concerning his wife's medical diagnosis, treatment and prognosis and prevented Mr. Posner from giving informed consent prior to various medical procedures for his wife.
The United States, in its complaint, alleges, inter alia, that the defendants discriminated against Mr. and Mrs. Posner, their son, Gerald Posner, and his wife, Marlene, on the basis of disability, by refusing to secure qualified interpreting services for effective communication. The United States also alleges that Defendants discriminated against Gerald Posner, Marlene Posner, and Dr. Rita Posner who is another adult child of Norman and Sarah Posner, due to their relationship or association with Norman and Sarah, who were persons with a disability. Specifically, the United States alleges that in failing to communicate directly with Sarah, Norman, Gerald, and Marlene Posner, and in imposing communication responsibilities on Gerald Posner, Marlene Posner, and Dr. Posner, the defendants singled them out or treated them in a discriminatory manner based upon disability.
Plaintiffs allege that Parkway’s failure to provide qualified sign language interpreters and/or other appropriate aids and services necessary for effective communication constitutes discrimination on the basis of disability within the meaning of Section 302 of the ADA, 42 U.S.C. § 12182. The complaint in CV-02-5225 also alleges, inter alia, violations of the New York State Human Rights Law, N.Y. Exec. Law § 290, et seq. and the New York City Human Rights Law, New York City, N.Y. Admin. Code § 8-101, et seq.
Plaintiffs and defendants agree that this Court has jurisdiction over the parties and subject matter of these actions. The parties agree that the controversy should be resolved without further proceedings and without an evidentiary hearing. Therefore, the parties have consented to entry of this Consent Decree, as indicated by the signatures appearing below.
It is therefore ORDERED, ADJUDGED AND DECREED:
JURISDICTION AND VENUE
This Court has jurisdiction over this action pursuant to 42 U.S.C. § 12188(b)(1)(B) and 28 U.S.C. §§ 1331 and 1345. Venue is proper in this District pursuant to 28 U.S.C. § 1391 in that all claims alleged herein arose within this District. Declaratory relief is appropriate pursuant to 28 U.S.C. §§ 2201 and 2202.
DEFINITIONS
1. The term "appropriate auxiliary aids and services" includes 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.
2. The term "Hospital Personnel" means: all employees and independent contractors with contracts to work on a substantially full-time basis for Parkway (or on a part-time basis exclusively for Parkway), 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 direct contact with “Patients” or “Companions,” as defined herein.
3. 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 Decree. 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. 28 C.F.R. § 35.104; 28 C.F.R. §36.303.1
4. The term "TTY's" or "TDD'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.
5. The term “undue burden” means: significant difficulty or expense. In determining whether an action would result in an undue burden, factors to be considered include:
a. The nature and cost of the action needed;
b. The overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site;
c. The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;
d. If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type and location of its facilities; and
e. If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure and functions of the workforce of the parent corporation or entity. 28 C.F.R. § 36.104; 28 C.F.R. § 35.164.
6. The term “Patient” means: a person who is deaf or hard of hearing and is seeking and/or receiving medical services at Parkway.
7. 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.
8. The term “date of this Decree” means: the date this Decree is entered by the Court.
INJUNCTIVE RELIEF
I. GENERAL OBLIGATIONS
A. Design and Implementation of Plan to Provide Appropriate Auxiliary Aids and Services.
1. Within thirty (30) days of the date of this Decree, the Hospital will design and implement a plan (“Plan”) that will implement effectively the provisions of this Decree, including without limitation:
a. developing, coordinating and overseeing the development of specific procedures to implement fully this Decree;
b. scheduling, announcing and promoting all training required by this Decree;
c. drafting, maintaining and providing all reports required by this Decree; and
d. modifying medical and intake forms as necessary to ensure that once a Patient or Companion enters the Hospital, the Hospital makes the communication assessment required in this Decree. At a minimum, the Hospital must develop and use a form similar to the Model Communication Assessment Form provided as Exhibit 1 to this Agreement.2. The Plan will include, among other things:
a. The designation of an individual or office at the Hospital that will maintain full information about access to and the operation of the Plan (“Information Office”). The Information Office will maintain a combination voice/TTY telephone line or a dedicated TTY telephone line, will publicize its purpose and telephone number broadly within the Hospital 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 individuals (“Covering Nurse 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 Plan (as described below). Such Covering Nurse 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. The Hospital will circulate and post broadly within the Hospital the names, telephone numbers, functions and office locations of such Covering Nurse Supervisors, including a TTY telephone number that may be called by Patients and Companions in order to obtain the assistance of such Covering Nurse Supervisors.B. Provision of Appropriate Auxiliary Aids and Services.
1. Immediate Aids and Services. Immediately upon the entry of this Decree, the Defendants will provide to Patients and Companions any appropriate auxiliary aids and services that may be necessary for effective communication after making the assessment described below, including, but not limited to, access to interpreters through audio-video interpreting services.
2. 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 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.3. 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 or on the arrival of the Patient or Companion at the Hospital, whichever is earlier. Hospital Personnel will perform and document in the Patient’s medical chart a communication assessment as part of each initial inpatient assessment. The Hospital 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.
4. Ongoing Relationships. If a Patient or a Companion has an ongoing relationship with the Hospital, with respect to each of these subsequent visits, the Hospital will continue to provide the appropriate auxiliary aids or services to the Patient or 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 Patients and Companions, such as notations in Patients' medical charts.
5. Medical Concerns. Nothing in this Decree 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.
6. Determination Not to Provide Auxiliary Aid or Service. If, after conducting an assessment, the Hospital determines that the circumstances do not warrant provision of an auxiliary aid or service, Hospital Personnel shall so advise the person requesting the auxiliary aid or service and shall 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 shall be provided to the patient (and Companion, if applicable), maintained with the log described in Section I (A)(7), and placed in the patient’s medical chart.
7. Maintenance of Log. The Hospital 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 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 I (A)(6) will be maintained by the Administrator(s).C. Complaint Resolution. The Hospital Administration will maintain an effective complaint resolution mechanism regarding use of the Plan by Patients and Companions and will maintain records of all complaints, whether oral or written, made to the Hospital and actions taken with respect thereto. The Hospital will notify deaf and hard of hearing persons of the Hospital’s complaint resolution mechanism, to whom complaints should be made, and 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 Administration. Upon request, the Hospital will provide the Patient and Companion a written response to the complaint within 72 hours of said request.
D. Prohibition of Surcharges. All appropriate auxiliary aids and services required by this Decree will be provided free of charge to the Patient or Companion who is deaf or hard of hearing.
E. 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, the Hospital will specifically inform the person that appropriate auxiliary aids and services are available free of charge.
F. Communication with Inpatients and Companions. The Hospital will take appropriate steps to ensure that all Hospital Personnel having 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, the Hospital will take appropriate steps to ensure that all Hospital Personnel having contact with a Patient or Companion who is deaf or hard of hearing are aware of the Hospital's Plan and the Administrator(s).
II. SIGN LANGUAGE AND ORAL INTERPRETERS
A. Circumstances Under Which Interpreters Will Be Provided. The Hospital 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 when such interpreters will be provided to Patients or Companions will be made as set forth in Section I.B.2. (Assessment) above. Examples of circumstances when it may be necessary to provide interpreters include, but are not limited to, the following:
1. determination of a Patient's medical history or description of ailment or injury;
2. provision of Patients' rights, informed consent or permission for treatment;
4. diagnosis or prognosis of ailments or injuries;
5. explanation of procedures, tests, treatment, treatment options or surgery;
6. 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);
7. explanation regarding follow-up treatments, therapies, test results or recovery;
8. blood donations or apheresis (removal of blood components);
9. discharge planning and discharge instructions;
10. provision of mental health evaluations, group and individual therapy, counseling and other therapeutic activities, including grief counseling and crisis intervention;
11. explanation of complex billing or insurance issues that may arise;
12. educational presentations, such as classes concerning birthing, nutrition, CPR and weight management.
13. religious services and spiritual counseling;
14. explanation of living wills or powers of attorney (or their availability); and
15. any other circumstance in which a qualified sign 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.B. Chosen Method for Obtaining Interpreters. Immediately upon entry of this Decree, the Hospital will enter one or more contracts with an interpreter service provider(s) (“the IS Provider”) to establish and operate a Plan to provide qualified sign language and oral interpreters at the request of the Hospital. The Hospital will provide on-site interpreter services in those situations where the use of audio-video interpreting services is otherwise not feasible or will not result in the provision of effective communication. In lieu of contracting with an IS Provider, the Hospital may hire one or more qualified sign language interpreters to be available 24 hours per day.
C. Interactive Conference System Technology. Audio-video interpreting services can provide immediate, effective access to interpreting services seven days per week, 24 hours a day in a variety of situations including emergencies and unplanned incidents. At the same time, the Hospital, however, recognizes that in light of evolving interactive conference system technology, the Hospital will consult with a Patient or Companion to ensure effective communication. When choosing the interactive conferencing system, the Hospital 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.
D. Provision of Interpreters in a Timely Manner.1. Non-scheduled incidents. For “non-scheduled incidents,” the Hospital will make an interpreter available within (a) thirty (30) minutes when it makes an interpreter available through either (i) audio-video interpreting services or (ii) an on-site staff interpreter, and (b) seventy-five (75) minutes when it makes an on-site interpreter available through either (i) a contract interpreting service, or (ii) 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.
2. Scheduled incidents. For “scheduled incidents,” the Hospital 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.E. 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 the Hospital, the IS Provider 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 the Hospital 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).
F. Modification of Performance Standards. In the event that the response time performance standards set forth in clause II.C. above cannot be maintained despite the Hospital’s good faith efforts, the Hospital is entitled to request the consent of the Plaintiffs to such modifications of such performance standards as may be reasonable under the circumstances. The Plaintiffs will consider any such request reasonably and in good faith, and any such modification that is agreed to will be presented to the Court for approval and deemed an amendment to this Decree.
G. Compliance with Applicable Laws. Plaintiffs' consent does not affect the Hospital's independent responsibilities under any applicable federal, state or local laws or regulations.
H. Staff Interpreters. The Hospital may, but has no obligation to, satisfy its obligations under this Decree 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 the Hospital is otherwise obligated to provide under this Decree. The Hospital 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 Decree.
I. 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, the Hospital 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. 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 the Hospital’s obligation to provide qualified interpreters in a timely manner as required by this Decree.
J. Other Means of Communication. The Defendants agree that between the time 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, including using sign language pictographs. This provision in no way lessens the Hospital’s obligation to provide qualified interpreters in a timely manner as required by this Decree.
K. 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, the Defendants may never require, coerce or rely upon 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. In any case, such person may be used to interpret or facilitate communication only if the Patient or Companion who is deaf or hard of hearing does not object, if such person wishes to provide such assistance and if such use is necessary or appropriate under the circumstances, giving appropriate consideration to any privacy issues that may arise. This provision in no way lessens the Hospital’s obligation to provide appropriate auxiliary aids and services as required under this Decree.
III. NOTICE TO COMMUNITY
A. Policy Statement. Within thirty (30) days of the entry of this Decree, the Defendants will 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 will 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.”
B. Patient Handbook. The Defendants 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, 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 of most Hospital programs.
Please ask your nurse or other Hospital personnel for assistance, or contact the Information Office at (voice or TTY), room .Defendants will also include in the handbook a description of the Hospital’s complaint resolution mechanism.
C. Website. In the event that defendants develop a website, they will include in it a statement to the effect of the statement set forth in Section III (B).
IV. NOTICE TO HOSPITAL PERSONNEL AND PHYSICIANS
The Defendants will 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. The policy statement should 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, 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 [responsible] Administrator, located at , and available at telephone extension . This offer and advice must likewise be made in response to any overt request for appropriate auxiliary aids or services.
The Defendants will distribute this document within thirty (30) days of the entry of this Decree 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 the Hospital, and to all Hospital Personnel on an annual basis.
V. TRAINING OF HOSPITAL PERSONNEL
A. Emergency Department Personnel. The Defendants will provide special mandatory in-service2 training to Hospital Personnel with patient responsibility who work or volunteer in the Emergency Department that addresses the special needs of deaf and hard of hearing Patients and Companions utilizing that department. This training will include the following objectives: to promptly identify communication needs and preferences of persons who are deaf or hard of hearing; to secure qualified interpreter services as quickly as possible when necessary, including training regarding how to operate any audio-video interpreting service equipment; and 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 prior to the date on which the Hospital is scheduled to implement the IS Plan and annually thereafter.
B. Psychiatric Personnel and Social Workers. The Hospital will provide specialized mandatory in-service training to Hospital Personnel with patient responsibility who work in the Department of Psychiatry (or its equivalent, if any) or are members of the Social Work Department (or its equivalent). This training will include the following objectives: to promptly identify communication needs and preferences of Patients and Companions who are deaf or hard of hearing; to secure qualified interpreter services as quickly as possible when necessary, including training regarding how to operate any audio-video interpreting service equipment; and to facilitate appropriate interaction between Patients who are deaf or hard of hearing 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 prior to the date on which the Hospital is scheduled to implement the IS Plan and annually thereafter.
C. Other Key Personnel. Special training will be given to the following Hospital Personnel not otherwise trained as provided above: all clinical directors and nursing supervisors; all senior-level administrators; personnel who staff the Admission desk (or its equivalent for in-patient registration), the Central Registry desk (or its equivalent for out-patient registration), the General Information desk; all triage nurses and other triage professionals; and heads of each department in which communication with Patients occurs. Personnel responsible for billing and insurance issues who routinely interact with Patients and Companions shall receive training on the availability of auxiliary aids and services and the existence in the Hospital of an Information Office and Administrator(s). Such training must be provided prior to the date on which the Hospital is scheduled to implement the IS Plan and annually thereafter.
D. Operators. All Hospital Personnel who receive incoming telephone calls from the public will receive special instructions on using TTY’s and the New York Relay or similar services to make and receive telephone calls and will receive training generally on the existence in the Hospital of an Information Office and Administrator(s) and complaint resolution processes.
D. Affiliated Physicians.1. Training Sessions. The Hospital 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 the Hospital (admitting or surgical privileges, etc.) to attend. The Hospital will provide training videotapes that contain substantially similar information to any affiliated physician upon request.
2. Written materials. Within thirty (30) days of the entry of this Decree, the Hospital will distribute a set of materials to all affiliated physicians. These materials will contain at least the following: the Hospital's Policy Statement and any relevant forms; a description of the Hospital’s Plan and a request that physicians' staff members notify the Hospital about Patients and Companions as soon as they schedule admissions, tests, surgeries or other health care services at the Hospital.E. Others. The Hospital will develop and implement an internal program that will provide appropriate training to all Hospital Personnel not trained under the preceding sections. This training will take place at such times as may be necessary to permit the Hospital to meet all of its obligations under this Decree.
F. General Provisions. The Hospital will provide the training specified above to new Hospital Personnel (including without limitation Emergency Department, Psychiatric and Social Work personnel) within thirty (30) days after the commencement of their services for the Hospital. 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. The Hospital shall maintain attendance sheets of all training conducted pursuant to Section V of this Decree, which shall include the names and respective job titles of the attendees, as well as the date, time and location of the training session.
VI. MISCELLANEOUS INJUNCTIVE RELIEF
A. Discrimination by Association. The Defendants 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.
B. Retaliation and Coercion. The Defendants will not retaliate against or coerce in any way any person who is trying to exercise his or her rights under this Decree or the ADA.
REPORTING, MONITORING AND VIOLATIONS
I. REPORTS
A. Compliance Reports. Three (3), nine (9), fifteen (15) and twenty-one (21) months following the entry of this Decree, and annually thereafter, the Hospital must provide a written report (“Report”) to the Department of Justice and New York Lawyers for the Public Interest, Inc. regarding its efforts to comply with this Decree. Each Report must state the identity of individuals admitted to the Hospital or their Companion(s) who are deaf or hard of hearing and the auxiliary aid(s) or service(s) provided to the individual(s). In the event that the Hospital does not provide auxiliary aid(s) or service(s) to a Patient or Companion who is deaf or hard of hearing, the Report must state (1) the procedure followed by the Hospital in determining whether to provide auxiliary aids and services to the Patient or Companion and (2) the Hospital’s reasons for not providing auxiliary aids and services to the Patient or Companion. The Hospital will make the most recent three Reports available for public inspection in the Information Office. The Hospital must maintain appropriate records, including, but not limited to, those described in this Decree, to document the information contained in the Report.
B. Complaints. During the term of this Consent Decree, the Defendants will notify the undersigned counsel for plaintiffs if any individual brings any lawsuit, complaint, charge, or grievance alleging that the Hospital failed to provide auxiliary aids and services to Patients or Companions. Such notification must be provided in writing via certified mail within fifteen (15) days of when the Hospital has received notice of the allegation and will include, at a minimum, the nature of the allegation, the name of the individual bringing the allegation and any documentation possessed by the Hospital relevant to the allegation.
II. VIOLATION OF DECREE.
A. If the Defendants violate this Decree or any subpart of this Decree, plaintiffs will have such remedies as are allowed by law, provided that the first such violation by the Hospital will be deemed a subsequent violation of the ADA for the purpose of calculating civil penalties, if any.
B. Notwithstanding the provisions of Section II (A) above, in the event that plaintiffs believe that the Defendants have violated any provision of this Decree, plaintiffs will give notice (including reasonable particulars) of such violation to the Hospital's chief executive officer, and the Hospital must then respond to such notice and/or cure such non-compliance as soon as practicable but no later than 30 days thereafter. Any event of non-compliance that prevents or restricts a Patient from receiving urgent health care services must be cured without delay. The Parties will negotiate in good faith in an attempt to resolve any dispute relating thereto before seeking relief under Section 1 above.
COMPENSATORY DAMAGES AND CIVIL PENALTIES
I. COMPENSATORY DAMAGES
A. In settlement of plaintiffs’ claims for compensatory damages alleged against defendants, plaintiffs shall recover from defendants, and defendants shall pay the sum of $125,000 (one hundred and twenty-five thousand dollars), for which defendants shall be individually and severally liable. Of this, Norman Posner shall recover $100,000 (one hundred thousand dollars) in compensatory damages on behalf of himself and the estate of Sarah Posner; Gerald Posner shall recover $8,333 (eight thousand three hundred thirty-three dollars) in compensatory damages; Marlene Posner shall recover $8,333 (eight thousand three hundred thirty-three dollars) in compensatory damages; and Rita Posner shall recover $8,334 (eight thousand three hundred thirty-four dollars) in compensatory damages.
B. This Section shall not affect plaintiffs’ ability to seek payment of attorneys’ fees as provided by law.
II. PROCEDURES FOR PAYMENT
Defendants shall satisfy the Decree by mailing eight certified checks in the amount of $15,625 (fifteen thousand six hundred twenty-five dollars) made payable to the United States Treasury to the United States’ Attorney’s Office, attention Brenda Hinkson, Financial Litigation Unit, 1 Pierrepont Plaza, 16th Floor, Brooklyn, NY 11201, according to the following schedule: within ten (10) days of notification of the entry of this Decree or within (10) days of receipt of the releases described in Section III, below, whichever is later, Defendants shall mail the first certified check. Thereafter, Defendants shall mail an additional certified check every thirty (30) days until eight checks have been mailed. Within 30 (thirty) days of receipt of the checks described above, provided the releases required in Section III have been executed and provided to the United States, the United States shall mail to Norman Posner, Gerald Posner, Marlene Posner, and Rita Posner checks in the amount set forth in section I.A. in the following manner: the first six checks for $15,625 (fifteen thousand six hundred twenty-five dollars) shall be made payable to, and mailed to, Norman Posner; a seventh check for $6,250 (six thousand two hundred fifty dollars) shall be made payable to, and mailed to, Norman Posner. After $100,000 (one hundred thousand dollars) has been paid to Norman Posner, the United States shall distribute, from the seventh check received, $8,334 (eight thousand three hundred thirty-four dollars) to Dr. Rita Posner and $1,041 (one thousand forty-one dollars) to Gerald Posner. Following payment to Rita Posner in the amount of $8,334 (eight thousand three hundred thirty-four dollars), the United States shall distribute, from the eighth check received, $7,292 (seven thousand two hundred ninety-two dollars) to Gerald Posner and $8,333 (eight thousand three hundred thirty-three dollars) to Marlene Posner.
III. RELEASES
Norman Posner, Gerald Posner, Marlene Posner, Dr. Rita Posner, the estate of Sarah Posner, and Queens Independent Living Center, Inc. must complete a Release Form attached as Exhibit 2.
MISCELLANEOUS
A. Term of the Decree. The United States District Court for the Eastern District of New York will retain jurisdiction over this action for the purpose of ensuring compliance and enforcing the provisions of this Decree for three (3) years from the date hereof, after which time its provisions will be terminated unless the Court determines, based on findings of non-compliance of the Defendants, that it is necessary to extend any of its requirements, in which case those requirements, after hearing, may be extended subject to the requirements of equity.
B. Changing Circumstances. During the three (3) years in which this Decree will be in effect, there may be a change in circumstances such as, for example and without limitation, an increased or decreased availability of qualified 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 or Companions more efficiently or effectively than is required under this Decree, or create difficulties not presently contemplated in the provision of appropriate auxiliary aids and services, it may propose changes to this Decree by presenting written notice to the Department of Justice and New York Lawyers for the Public Interest, Inc. Such changes will then only be presented to the Court for incorporation in this Decree if the Department of Justice and New York Lawyers for the Public Interest, Inc., upon review, grant their approval, which approval will not be unreasonably withheld. All Parties will negotiate in good faith prior to proposing any changes to the Court.
C. Binding. This Decree is final and binding on the Parties, including all principals,agents, executors, administrators, representatives, employees, successors in interest, beneficiaries, assigns, heirs and legal representatives thereof. Each Party has a duty to so inform any such successor in interest and to timely notify all parties of all such successors in writing. In the event Defendant seeks to transfer or assign all or part of its interests in any facility covered by this Consent Decree, and the successors or assign intends on carrying on the same or similar use of the facility, as a condition of sale Defendant shall obtain the written accession of the successor or assign to any obligations remaining under this Consent Decree for the remaining term of this Consent Decree.
D. Non-Waiver. Failure by the United States or New York Lawyers for the Public Interest, Inc. to seek enforcement of this Decree pursuant to its terms with respect to any instance or provision will not be construed as a waiver to such enforcement with regard to other instances or provisions.
E. Severability. In the event that the Court determines that any provision of this Decree is unenforceable, such provision will be severed from this Decree and all other provisions will remain valid and enforceable, provided, however, that if the severance of any such provision materially alters the rights or obligations of the Parties hereunder, they will, through reasonable, good faith negotiations, agree upon such other amendments hereto as may be necessary to restore the Parties as closely as possible to the relative rights and obligations initially intended by them hereunder.
F. The Complaint shall be dismissed with prejudice, except that any plaintiff may petition the Court, at any time during the duration of this Consent Decree, to reopen the case for the purpose of enforcing the Consent Decree, and the Court shall retain jurisdiction to enforce this Consent Decree.
For the United States:
ROSLYNN R. MAUSKOPF
United States Attorney
Eastern District of New York
/s/ Pamela K. Chen
PAMELA K. CHEN
Chief, Civil Rights Litigation
1 Pierrepont Plaza, 16th Floor
Brooklyn, N.Y. 11201
(718) 254-6155
R. ALEXANDER ACOSTA
Assistant Attorney General
JOHN L. WODATCH
Chief
/s/ Robert J. Mather
RENEE M. WOHLENHAUS
Deputy Chief
ROBERT J. MATHER
Senior Trial Attorney
United States Department of Justice
950 Pennsylvania Avenue, NW
Civil Rights Division-Disability Rights Section
New York Ave. Building, Room 4023
Washington, D.C. 20035
(202) 307-2236
For Norman Posner and Queens Independent Living Center, Inc.:
NEW YORK LAWYERS FOR THE PUBLIC INTEREST, INC.
By: /s/ Michael D. Silverman
Michael D. Silverman(MS-1116)
Marianne Engelman Lado (ML-6749)
151 West 30th Street
11th Floor
New York, New York 10001-4007
and
WHITE & CASE, LLP
Karen M. Asner (KA-5950)
K. Allison White (KW-1544)
1155 Avenue of the Americans
New York, New York 10036-2787
For Defendants:
By: /s/ Alan Zeitlin
Alan Zeitlin, M.D.
President & Chief Executive Officer
Parkway Hospital, Inc.
70-35 113th Street
Forest Hills, New York 11375
It is so ORDERED, this 29th day of April, 2004.
/s/ Sandra J. Feuerstein
UNITED STATES DISTRICT JUDGE
