SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA AND
PROMEDICA HEALTH SYSTEM
UNDER THE AMERICANS WITH DISABILITIES ACT

BACKGROUND

1. The parties to this Settlement Agreement are the United States of America and ProMedica Health System (hereinafter “ProMedica”).
2. ProMedica is a not-for-profit organization that operates hospitals and provides related inpatient and outpatient medical services through those hospitals in the Northwest Ohio and Southeastern Michigan area.  ProMedica owns and operates Flower Hospital, Bay Park Hospital, and Memorial Hospital, which are the subjects of the complaints described herein.  Additionally, ProMedica owned and operated St. Luke’s Hospital from 2010 until the summer of 2016, which was also the subject of a complaint during that period.  This agreement applies to all ProMedica hospitals, including all inpatient and outpatient care facilities of those hospitals, as set forth in Exhibit A.
3. ProMedica also owns Toledo Hospital, which was the subject of a complaint that was resolved by a separate settlement agreement in 2015.  Pursuant to the 2015 settlement agreement, Toledo Hospital completed the training described here in Section F. Therefore, Section F of this agreement will not be applicable to Toledo Hospital, but all other sections will apply.
4. This matter was initiated by seven (7) separate complaints filed with the United States against the ProMedica hospitals identified in paragraph 2 alleging violations of title III of the Americans with Disabilities Act of 1990, as amended (“ADA”), 42 U.S.C. §§ 12181-12189, and its implementing regulation, 28 C.F.R. Part 36.  Specifically, complaints variously alleged failure to provide auxiliary aids and services and effective communication during treatment, 42 U.S.C § 12182(b)(2)(A)(iii); 28 CFR § 36.303, failure to provide effective communication to a companion who is deaf, 28 CFR § 36.303(c)(1), and requiring an adult accompanying an individual to interpret, 28 CFR § 36.303(c)(2), (3).  
5. The parties have agreed that it is in the parties’ best interests, and the United States believes that it is in the public interest, to resolve this dispute.  The parties have therefore voluntarily entered into this Agreement, agreeing as follows:

TITLE III COVERAGE AND FINDINGS

6. The United States Attorney for the Northern District of Ohio (“U.S. Attorney’s Office”) is authorized under 42 U.S.C.§ 12188 and 28 C.F.R. Part 36, Subpart E, to investigate the allegations of the complaints in this matter to determine ProMedica’s compliance with title III of the ADA.  The U.S. Attorney’s Office has the authority to, where appropriate, negotiate and secure the full range of relief available under Title III of the ADA, including equitable/injunctive relief, requiring the provision of auxiliary aids and services, and seeking monetary damages and a civil penalty.
7. Complainants D.C., W.R., N.S., H.S., S.S., A.L., F.S., and J.P. are individuals with a disability within the meaning of the ADA.  They are deaf, and use American Sign Language as their primary means of communication.  42 U.S.C. § 12102; 28 C.F.R. § 36.104.  
8. ProMedica is a private, non-profit corporation, and is incorporated by the State of Ohio.  ProMedica owns hospitals that are “public accommodations” 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, because it is a private entity that operates places of public accommodation.
9. Under title III of the ADA, no person who owns, leases (or leases to), or operates a place of public accommodation may discriminate against an individual on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.  42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a).  Discrimination includes failing to take such steps as necessary to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently than any other individual because of the absence of auxiliary aids and services.  42 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303. 
10. Ensuring that medical care providers do not discriminate on the basis of disability is an issue of general public importance.  The United States is authorized to investigate alleged violations of title III of the ADA and to bring a civil action in federal court in any case that involves a pattern or practice of discrimination or that raises issues of general public importance.  42 U.S.C. § 12188(b).
11. As a result of its investigation, the United States found that:
1. Complainant D.C.:  D.C. was a patient at Flower Hospital on February 6, 2009, when her colon ruptured and she was admitted through the emergency room.  Flower Hospital expected her daughter to interpret for her or her partner and companion, who is also deaf.  D.C. was hospitalized until February 22, 2009.  

Despite requests for an on-site interpreter, Flower Hospital did not provide an interpreter until three days after admission.  During this time hospital staff relied on D.C.’s family to interpret.

In 2008, D.C. was Power of Attorney for her mother, who was hospitalized due to a serious illness.  Despite being listed as Power of Attorney for her mother, Flower Hospital failed to provide an interpreter for D.C. 

2. Complainant W.R.: W.R. was admitted to Flower Hospital for high blood pressure on June 9, 2014.  Flower Hospital attempted to use Video Remote Interpreting (VRI) to communicate with W.R.

W.R. expressed that VRI was not providing effective communication and requested an onsite interpreter.  Instead of providing an on-site interpreter, staff requested that his daughter interpret for them.

3. Complainants N.S., H.S., and R.S.:  N.S. was admitted to Flower Hospital multiple times during 2014 and 2015.  N.S. and H.S. are husband and wife, both are deaf, and communicate through ASL.  Their adult son, R.S., is fluent in ASL. 

N.S. informed staff that VRI was not providing effective communication because she could not see the screen and she was in severe pain.  Staff recorded this as a refusal to use VRI and began using notes to communicate with N.S. and H.S.  Staff did not provide any interpreter for H.S.

Despite numerous requests for an on-site interpreter made by themselves and their son, R.S., Flower Hospital would only provide an on-site interpreter for short periods which required R.S. to leave work and come and interpret for his mother, often delaying care.  

4. Complainant S.S.:  S.S. was a companion to her daughter who was scheduled to give birth in July 2017 at Bay Park Hospital.  She went to Bay Park Hospital to request an interpreter for the delivery and was told that since she was not the patient she was not entitled to an interpreter.  Not only was S.S. deaf, but the father’s parents were also deaf.  

After several days of advocating for herself and her right to an interpreter, Bay Park Hospital staff provided three interpreters (one for S.S. and the other two deaf companions) for the delivery of their grandchild.

5. Complainant A.L.:  A.L. was a patient at Memorial Hospital in June 2017 and was referred to physical therapy in July.  While a patient, Memorial Hospital utilized VRI to communicate with A.L.  

When A.L. was first referred for physical therapy, staff attempted to use VRI to communicate with A.L. during therapy.  A.L. informed staff that VRI would not be effective due to his body position and the treatments he was receiving.

Staff did not believe VRI would be ineffective, and at one visit, utilized VRI and an onsite interpreter to “evaluate” whether VRI was providing effective communication during therapy.  A.L. could not understand instructions during this visit because he did not know which interpreter to focus on and communication was confusing.


Finally, the VRI interpreter explained to hospital staff that to be effective the interpreter must see the patient from the waist up and the patient must be able to use his hands.  Additionally, the VRI could not be positioned low enough and far away enough to work properly.  After this, Memorial Hospital provided an on-site interpreter for A.L.’s visits.

6. Complainant F.S.:  F.S. suffered a stroke in Maumee, Ohio and was transported to St. Luke’s Hospital E.R. in February 2016.  F.S.’s deaf companion informed the EMS transporting F.S. that he would need an interpreter.  When the companion arrived, hours later, no interpreter of any kind was being provided to F.S.

F.S.’s companion complained to hospital staff, who brought the VRI.  The VRI did not provide effective communication for F.S., who was dizzy and had blurred vision.  Staff documented this as a refusal to use the VRI and instead of providing an on-site interpreter used note writing to communicate.
F.S. was admitted to the hospital and stayed for four (4) days; an interpreter was finally provided on the third day, but only for an hour and a half, and not during discharge summary and instructions.

7. Complainant J.P.:  J.P. was admitted in February 2016, through the St. Luke’s Hospital ER for chest pain.  During her admission, staff used VRI to communicate with her, but the picture kept freezing up and pixilating.   Therefore, J.P. requested an on-site interpreter. 

J.P. remained in the hospital for two days and during this time St. Luke’s Hospital failed to provide any on-site interpreter, instead, hospital staff wrote notes back and forth throughout her hospital stay for all communication.  At one point staff asked if her mother could interpret and later her brother, however, neither her mother nor brother are qualified in ASL.


12. On the basis of its investigation, the United States has determined that ProMedica denied complainants appropriate Auxiliary Aids and Services necessary for effective communication during the above-referenced treatments, in violation of 42 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303.  Further, the United States determined that ProMedica denied effective communication to a companion who is deaf, in violation of 28 CFR § 36.303(c)(1), and required an adult accompanying an individual to interpret, in violation of 28 CFR § 36.303(c)(2), (3).
13. The Complainants are aggrieved persons pursuant to 42 U.S.C. § 12188(b)(2)(B).
14. In consideration of the terms of this Agreement, the United States agrees to refrain from filing a civil suit in this matter regarding the areas covered under the Equitable Relief section of this Agreement, except as provided in the Enforcement section of the Agreement.
15. In a spirit of cooperation toward ensuring full compliance with Title III of the Americans with Disabilities Act and in consideration of the United States’ agreement to refrain from possible litigation as set out below, ProMedica agrees to take the actions specified in this Agreement at all of its hospitals, including all inpatient and outpatient facilities of those hospitals.  This Agreement is neither an admission of liability by ProMedica nor a concession by the United States that its claims are not well founded.  By entering into this Agreement, ProMedica does not admit the allegations alleged above, or to any violation of law, liability, fault, misconduct, or wrongdoing in connection with those allegations.  The Parties have determined that the complaints filed with the United States can be resolved without litigation and have agreed to the terms of this Agreement.

DEFINITIONS

16. The term “Auxiliary Aids and Services” includes Qualified Interpreters on-site or through video remote interpreting (“VRI”) services; notetakers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (“TTYs”), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing.  28 C.F.R. § 36.303(b)(1).
17. The terms “Staff” and “Personnel” means all employees, both full and part-time, and independent contractors with contracts to work on a substantially full-time basis for a ProMedica hospital (or on a part-time basis exclusively for ProMedica), including all inpatient and outpatient facilities of those hospitals, and including, without limitation, nurses, physicians, social workers, technicians, admitting personnel, billing staff, security staff, therapists, and volunteers, who have or are likely to have direct contact with Patients or Companions as defined herein.  
18. The term “Qualified Interpreter” means an interpreter who, via a video remote interpreting (VRI) service or an on-site appearance, is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary.  Qualified Interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators.  28 C.F.R. § 36.104.
19. The term “Patient” shall be broadly construed to include any individual seeking access to, or participating in, the goods, services, facilities, privileges, advantages, or accommodations of a public accommodation of any ProMedica hospital, whether as an inpatient or an outpatient, as well as individuals seeking to use any other goods or services provided, such as the opportunity to donate blood or attend health education classes.  The broad construction of this term also includes (but is not limited to) individuals seeking to communicate with representatives of ProMedica regarding past, present or future health care services, such as scheduling appointments, obtaining test results, and discussing billing issues.
20. The term “Companion” means a person who is a family member, friend, or associate of a Patient, who, along with such individual, is an appropriate person with whom the public accommodation should communicate.  28 C.F.R. § 36.303(c)(1)(i).

EQUITABLE RELIEF

1. Prohibition of Discrimination
21. Nondiscrimination.  Pursuant to 42 U.S.C. § 12182(a), ProMedica shall provide Patients and Companions who are deaf and hard of hearing with the full and equal enjoyment of the services, privileges, facilities, advantages, and accommodations of ProMedica as required by this Agreement and the ADA.  ProMedica shall provide appropriate Auxiliary Aids and Services, including Qualified Interpreters, where such aids and services are necessary to ensure effective communication with Patients and Companions who are deaf and hard of hearing.
22. Discrimination by Association.  ProMedica shall not deny its services, accommodations, or other opportunities to any individual because of the known relationship of that person with someone who is deaf or hard of hearing.  See 42 U.S.C. § 12182(b)(1)(E).
23. Retaliation and Coercion.  ProMedica shall not retaliate against or coerce in any way any person who made, or is making, a complaint according to the provisions of this Agreement or exercised, or is exercising, his or her rights under this Agreement or the ADA.  See 42 U.S.C. § 12203.
2. Effective Communication
24. Appropriate Auxiliary Aids and Services.  Pursuant to 42 U.S.C. § 12182(b)(2)(A)(iii), ProMedica will provide to Patients and Companions who are deaf or hard of hearing any appropriate Auxiliary Aids and Services that are necessary for effective communication after making the assessment described in paragraphs 25-26 of this Agreement.  Appropriate Auxiliary Aids and Services will be provided as soon as practicable (without compromising Patient care), except that the provision of on-site interpreters must be within the time frame described in paragraph 36 of this Agreement.  ProMedica will advise Patients and Companions who require Auxiliary Aids or Services that these are available throughout the Patient’s time at the hospital as requested by the Patient.
25. General Assessment Criteria.  The determination of appropriate Auxiliary Aids or Services, and the timing, duration, and frequency with which they will be provided, will be made by ProMedica personnel in consultation with the person with a disability whenever possible.  The assessment made by ProMedica personnel will take into account all relevant facts and circumstances, including, for example, the individual’s communication skills and knowledge, and the nature, length, complexity of the communication at issue, and the context in which the communication is taking place.  A Communication Assessment Form is attached to this Agreement as Exhibit B, and will be used by ProMedica upon the effective date of this Agreement.  This form will be subject to approval by counsel for the United States prior to implementation.
26. Time for Assessment.  The determination of which appropriate Auxiliary Aids and Services are necessary must be made to the extent possible at the time an appointment is scheduled for the Patient who is deaf or hard of hearing or on the arrival of the Patient or Companion who is deaf or hard of hearing at the hospital, whichever is earlier.  Then, if determined that Auxiliary Aids and Services are necessary, ProMedica personnel will perform an assessment using the appropriate Auxiliary Aids and Services (see paragraph 24) as part of each initial inpatient assessment when the patient is first seen to fully determine which appropriate Auxiliary Aids and Services are necessary, and the timing, duration, and frequency with which they will be provided.  The results of this assessment will then be documented in the Patient’s electronic medical chart.  In the event that communication is not effective, ProMedica Personnel will reassess which appropriate Auxiliary Aids and Services are necessary, in consultation with the person with a disability, where possible, and provide such aid or service based on the reassessment.
27. ADA Administrators.  ProMedica hereby designates the Administrator on Call at each ProMedica hospital as the ADA Administrator.  The House Supervisor will serve as the ADA Co-Administrator, and at least one such employee will always be on duty and available 24 hours a day, seven days a week, to answer questions and provide appropriate assistance regarding immediate access to, and proper use of, the Auxiliary Aids and Services, including Qualified Interpreters.  The ADA Administrator(s) will know where the Auxiliary Aids are stored and how to operate them.  ProMedica hereby designates the Vice President, Patient Care Services or their designee, as being responsible for their maintenance, repair, replacement, and distribution.  ProMedica will circulate and post broadly within each ProMedica facility the name, telephone number, function, and office location of the ADA Administrator(s), including a TTY telephone number, through which the ADA Administrator(s) on duty can be contacted 24 hours a day seven days a week by Patients and Companions who are deaf and hard of hearing.  The ADA Administrators will be responsible for the complaint resolution mechanism described in paragraph 30 of this Agreement during the periods that they are on duty.  Complaints incapable of immediate resolution will be processed using the established grievance resolution mechanism under paragraph 30.
28. Auxiliary Aid and Service Log.  ProMedica will maintain a log in which requests for Qualified Interpreters on site or through video remote services will be documented.  The log will indicate the time and date the request was made, the name of the Patient or Companion who is deaf or hard of hearing, the time and date of the scheduled appointment (if a scheduled appointment was made), the nature of the auxiliary aid or service provided, and the time and date the auxiliary aid or service was provided.  If no auxiliary aid or service was provided, the log shall contain a statement why the auxiliary aid and service was not provided and the ProMedica staff who made the decision.  Such logs will be maintained at each hospital for the entire duration of the Agreement, and will be incorporated into the Compliance Reports as described in Section G of this Agreement.
29. Successive Patient Visits.  ProMedica shall, to the extent it has not already done so, implement policies and procedures to expedite arrangements for the provision of auxiliary aids and interpretive services when a Patient or Companion requests appropriate auxiliary aids or services for successive visits to ProMedica hospitals. ProMedica personnel shall keep appropriate records that reflect the provision of auxiliary aids and services to Patients and Companions, such as notations in the Patients’ medical charts and electronic medical records.
30. Complaint Resolution.  ProMedica will utilize its established grievance resolution mechanism for the investigation of disputes regarding effective communication with Patients and Companions who are deaf and hard of hearing.  ProMedica will maintain records of all grievances regarding effective communication, whether oral or written, made to ProMedica and actions taken with respect thereto.  At the time ProMedica Personnel complete the assessment described in paragraphs 25-26 and advise Patient and/or Companion of the determination of which appropriate Auxiliary Aids and Services are necessary, ProMedica will notify Patients and/or Companions who are deaf and hard of hearing of its grievance resolution mechanism, to whom complaints should be made, and of the right to receive a written response to the grievance.  This notification will be provided verbally during the assessment and shall appear in writing on the Communication Assessment Form.  A written response to any grievance filed shall be completed within the same time frames under the established grievance process.  Copies of all grievances related to provision of services for Patients and/or Companions who are deaf or hard of hearing and the responses thereto will be maintained by the ADA Administrators for the entire duration of the Agreement.
31. Prohibition of Surcharges.  All appropriate Auxiliary Aids and Services required by this Agreement will be provided free of charge to the Patient and/or Companion who is deaf or hard of hearing.
32. Record of Need for Auxiliary Aid or Service.  ProMedica will take appropriate steps to ensure that all ProMedica Personnel are made aware of a Patient or Companion’s disability and auxiliary aids and services needed by specifying those needs in the patient’s chart (electronic or otherwise) so that effective communication with such person will be achieved.  
3. Qualified Interpreters
33. 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, ProMedica personnel shall never require, request, or coerce a family member, companion, case manager, advocate, or friend of a Patient or Companion who is deaf or hard of hearing to interpret or facilitate communications between ProMedica Personnel and such Patient or Companion except in an emergency involving an imminent threat to the safety or welfare of an individual where there is no interpreter available.  In any case, such person shall 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.  See 28 C.F.R. § 36.303(c).  A Patient or Companion’s waiver of a qualified sign language interpreter under this provision must be made and documented in the Patient’s chart or records.  This provision in no way lessens ProMedica’s obligation to provide appropriate Auxiliary Aids and Services as required under this Settlement Agreement.
34. Circumstances Under Which Interpreters Will Be Provided.  When an interpreter is needed, ProMedica shall provide a qualified sign language interpreter to Patients and Companions who are deaf or hard of hearing and whose primary means of communication is sign language, and qualified oral interpreters to such Patients and Companions who rely primarily on lip reading, as necessary for effective communication.  Examples of circumstances when the communication may be sufficiently lengthy or complex so as to require a Qualified Interpreter include the following:
1. Discussing a Patient’s symptoms and medical condition, medications, and medical history;
2. Explaining medical conditions, treatment options, tests, medications, surgery, and other procedures;
3. Providing a diagnosis and recommendation for treatment;
4. Communicating with a Patient during treatment, testing procedures, and during physician’s rounds;
5. Providing Patients’ rights, obtaining informed consent or permission for treatment;
6. Providing instructions for medications, post-treatment activities, and follow-up treatments;
7. Providing mental health services, including group or individual counseling for Patients and family members;
8. Providing information about blood or organ donations;
9. Discussing powers of attorney, living wills, or complex billing and insurance matters; 
10. During educational presentations, such as birthing or new parent classes, nutrition and weight management programs, and CPR and first-aid training;
11. Determining any condition or allergy of Patient that may affect choice of medication;
12. During blood donations or apheresis (removal of blood components);
13. Filing of administrative complaints or grievances against ProMedica or ProMedica Personnel; and
14. Any other circumstance in which a qualified sign language interpreter is necessary to ensure a Patient’s rights provided by law.
35. Chosen Method for Obtaining Interpreters.  Within 60 days after execution of this Agreement, ProMedica will identify at least four (4) interpreter services and will make appropriate arrangements with said services to provide qualified on site interpreters in a timely manner, as well as VRI services at the request of ProMedica.
36. Provision of Interpreters in a Timely Manner. 
1. Non-scheduled Interpreter Requests.  A “non-scheduled interpreter request” means a request for an interpreter made by a deaf or hard of hearing Patient or Companion less than two hours before the Patient’s appearance at the ProMedica hospital for examination or treatment.  For non-scheduled interpreter requests, ProMedica personnel will complete the assessment described in paragraphs 25-26 above; and
1. A Qualified Interpreter, provided through a Video Remote Interpreting (VRI) service as described in paragraph 37 below, will be provided as soon as possible, but no more than thirty (30) minutes from the time ProMedica completes the assessment described in paragraphs 25-26 above; but
2. In the event that VRI will not provide effective communication and an onsite Qualified Interpreter is required, an on-site Qualified Interpreter will be provided as soon as possible, but no more than two (2) hours from the time it becomes clear that VRI will not provide effective communication.  In the event that, due to extenuating circumstances or the rural location of the hospital, an on-site Qualified Interpreter is not provided within two (2) hours, personnel will document the reasons for the late arrival.  Further, during the time personnel are waiting for the on-site Qualified Interpreter to arrive, an explanation will be provided to the Patient or Companion (via note writing or other means) and VRI may be offered again for communication until the on-site Qualified Interpreter arrives.
3. If no interpreter can be located, ProMedica will take the following steps:
1. Exert reasonable efforts (which shall be deemed to require no fewer than four (4) telephone and/or email and/or text message inquiries to different interpreters or interpreting agencies) to contact any interpreters or interpreting agencies and request their services;
2. Inform the Patient or Companion of the efforts taken to secure an on-site Qualified Interpreter and that efforts have failed, and follow up on reasonable suggestions for alternate sources of Qualified Interpreters such as contacting a qualified interpreter known to the Patient or Companion; and 
3. Document all of the efforts made as described above.
4. Deviations from this response time will be addressed with the interpreting service provider and documented in the patient’s record.
2. Scheduled Interpreter Requests.  A “scheduled interpreter request” is a request for an interpreter made two or more hours before the services of the interpreter are required.  For scheduled interpreter requests, ProMedica personnel will complete the initial communication assessment described in paragraphs 25-26 above in advance of the first visit, and, when an interpreter is appropriate, ProMedica will make a Qualified Interpreter available at the time of the scheduled appointment either through VRI, as described in paragraph 37 below, or an on-site qualified interpreter if VRI will not provide effective communication.  If an on-site interpreter fails to arrive for the scheduled appointment, upon notice that the interpreter failed to arrive, ProMedica will immediately exert reasonable efforts (as described in paragraph 36.a.iii.(a) above) to secure another qualified interpreter and will document such efforts after notifying the Patient and/or Companion of the efforts to secure another qualified interpreter.
3. Data Collection on Interpreter Response Time and Effectiveness.  ProMedica will monitor the performance of each Qualified Interpreter service it uses to provide communication to deaf or hard of hearing Patients or Companions through its established process of monitoring outside vendors.  As part of the Auxiliary Aid and Service Log, described in paragraph 28, ProMedica shall collect information regarding response times for each request for an interpreter.
37. Video Remote Interpreting (“VRI”).  When using VRI services, ProMedica will ensure that it provides: 
1. Real-time, full-motion video and audio over a dedicated high-speed, widebandwidth video connection or wireless connection that delivers high-quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in communication;
2. A sharply delineated image that is large enough to display the interpreter’s face, arms, hands, and fingers, and the participating individual’s face, arms, hands, and fingers, regardless of his or her body position;
3. A clear, audible transmission of voices; and
4. Adequate training to users of the technology and other involved individuals so that they may quickly and efficiently set up and operate the VRI 28 C.F.R. § 36.303(f).  

   VRI shall not be used when it is not effective, for example, due to: (1) a patient’s limited ability to move his or her head, hands or arms; vision or cognitive issues; or significant pain; (2) space limitations in the room; (3) the complexity of the medical issue; or (4) any other time when there are indicators that VRI is not providing effective communication.  Whenever, based on the circumstances, VRI does not provide effective communication with a Patient or Companion who is Deaf or Hard of Hearing, VRI shall not be used as a substitute for an on-site Qualified Interpreter and an on-site Qualified Interpreter shall be provided within the time limits described in paragraph 36.a.ii, above.  Reasonable efforts (as described in paragraph 36.a.iii.(a)) to obtain an on-site Qualified Interpreter shall begin as soon as it becomes evident that VRI cannot provide effective communication. 
   

38. Notice to Patients and Companions Who Are Deaf or Hard of Hearing.  As soon as ProMedica personnel have determined that a Qualified Interpreter is necessary for effective communication with a deaf or hard of hearing Patient or Companion, ProMedica will inform the Patient or Companion (or a family member or friend, if the Patient or Companion is not available) of the current status of efforts being taken to secure a Qualified Interpreter on his or her behalf.  ProMedica will provide additional updates to the Patient or Companion as necessary until an interpreter is secured.  Notification of efforts to secure a Qualified Interpreter does not lessen ProMedica’s obligation to provide Qualified Interpreters in a timely manner as required by paragraph 36.
39. Other Means of Communication.  ProMedica agrees that between the time an interpreter is requested and the interpreter is provided, ProMedica 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.  This provision in no way lessens ProMedica’s obligation to provide Qualified Interpreters in a timely manner as required by paragraph 36.
4. Notice to the Public
40. Policy Statement.  Within 60 days of the entry of this Agreement, ProMedica shall maintain signs of conspicuous size and print at all ProMedica admitting stations, the emergency department, and wherever a Patient’s Bill of Rights is required by law to be posted.  Such signs shall include the ADA Administrator’s contact information (see below and Exhibit C).  Such signs shall be to the following effect:

Sign language and oral interpreters, TTYs, and other auxiliary aids and services are available free of charge to people who are deaf or hard of hearing.  For assistance, please contact any ProMedica Personnel or the Information Office at _____________ (voice/TTY), room ______.

These signs will include the international symbols for “interpreters” and “TTYs.”  An example is found in Exhibit C

41. Website and Closed Circuit Televisions (“ProMedica TV”) in Waiting Areas:  ProMedica will include on its website the policy statement described above, conspicuously linked from the main website, currently at http://www.promedica.org.  Additionally, the ProMedica Closed Circuit TV broadcasts on TV’s provided in ProMedica waiting areas will have closed captioning turned on wherever and whenever it is available and will periodically include the policy statement described above.
42. Patient Handbook.  ProMedica will include in all future printings of its Patient Handbook (or equivalent) and all similar publications a statement to the following effect:

To ensure effective communication with Patients and their Companions who are deaf or hard of hearing, we provide appropriate auxiliary aids and services free of charge, such as: sign language and oral interpreters, video remote interpreting services, TTYs, note takers, written materials, telephone handset amplifiers, assistive listening devices and systems, telephones compatible with hearing aids, televisions with caption capability or closed caption decoders, and open and closed captioning of most ProMedica programs.

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

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

5. Notice to ProMedica Hospital Personnel and Physicians
43. ProMedica shall publish on its intranet a policy statement regarding ProMedica’s policy for effective communication with persons who are deaf or hard of hearing.  This policy statement shall include, but is not limited to, language to the following effect:
    
    If you recognize or have any reason to believe that a Patient or a relative, close friend, or Companion of a Patient is deaf or hard of hearing, you must advise the person that appropriate auxiliary aids and services, such as sign language and oral interpreters, video remote interpreting services, TTYs, note takers, written materials, telephone handset amplifiers, assistive listening devices and systems, telephones compatible with hearing aids, televisions with captioning or closed caption decoders, and open and closed captioning of most ProMedica programs, will be provided free of charge when appropriate.  If you are the responsible health care provider, you must ensure that such aids and services are provided when appropriate.  All other personnel should direct that person to the appropriate ADA Administrator at _____________ and reachable at ________________.
6. Training
44. Training of ADA Administrator.  ProMedica will provide mandatory training for the ADA Administrators within 60 days of designation as provided in paragraph 27 of this Agreement.  Such training should be updated on an annual basis.  Such training will be sufficient in duration and content to train the ADA Administrators in the following areas:
1. To promptly identify communication needs of Patients and Companions who are deaf or hard of hearing and which auxiliary aids are effective in which situations;
2. To secure Qualified Interpreter Services as quickly as possible when necessary; 
3. To encourage medical staff members to notify ProMedica of Patients and Companions who are deaf or hard of hearing as soon as Patients schedule admissions, tests, surgeries, or other health care services at ProMedica;
4. To use, when appropriate, flash cards and pictographs (in conjunction with any other available means of communication that will augment the effectiveness of the communication);
5. How and when to use video remote interpreting services and what steps to take if a patient states VRI is not effective;
6. Making and receiving calls through TTYs and the relay service; and
7. ProMedica’s complaint resolution procedure described in paragraph 30 of this Agreement and the appeals process.
45. Training of ProMedica Personnel.  Except for affiliated physicians, who are governed by paragraph 48 of this Agreement, and for personnel at Toledo Hospital as referenced in paragraph 3 of this Agreement, ProMedica will provide mandatory in-service training to all ProMedica personnel.  
1. The training will address the needs of Patients and Companions who are deaf or hard of hearing and will include the following objectives:
1. To promptly identify communication needs of Patients and Companions who are deaf or hard of hearing, identify the types of auxiliary aids available, and which auxiliary aids are effective; and
2. To secure Qualified Interpreter services as quickly as possible when necessary; and
3. To use, when appropriate and available, and not as a substitute when another more appropriate Auxiliary Aid or Service is warranted, flash cards and pictographs (in conjunction with any other available means of communication that will augment the effectiveness of the communication); 
4. To discourage the improper use of family members or companions as interpreters for the patient;
5. The appropriate circumstances to use video remote interpreting services and what steps to take if a patient states VRI is not providing effective communication; vi. Making and receiving calls through TTYs and the relay service; and
6. ProMedica’s complaint resolution procedure described in paragraph 30 of this Agreement and the appeals process.
2. Such training must begin within 90 days and be completed within 150 days of the effective date of this Agreement.  ProMedica will first target the training to frontline personnel, i.e., those people who are more likely to encounter patients and companions initially and/or consistently, such as people working in reception, admissions, triage, and other similar departments, with such training to be completed within 90 days of the effective date of this agreement.  The training of telephone operators is addressed in paragraph 46.  In the event any ProMedica staff are on leave during such training period, such personnel will be required to take such training within 60 days of his/her return to work.
3. New employees must be trained within 60 days of their hire.  A screening of a video of the original training will suffice to meet this obligation.
46. Training of Telephone Operators.  All ProMedica Personnel who routinely receive incoming telephone calls from the public will receive instructions by ProMedica on using TTYs or relay services to make, receive, and transfer telephone calls and will receive training on the process for requesting interpreter services and the types of services provided, the existence in ProMedica of an ADA Administrator, as detailed in paragraph 27 of this Agreement, and the complaint resolution process, as described in paragraph 30 of this Agreement.  Such training must be provided within 60 days of the effective date of this Agreement and will be conducted annually thereafter.  In the event any ProMedica Personnel are on leave during such training period, such personnel will be required to take such training within 60 days of his/her return to work.
47. Training Attendance Sheets.  ProMedica will maintain in electronic form for the duration of this Agreement, confirmation of training conducted pursuant to paragraphs 44-46, and 48, of this Agreement, which will include the names, respective job titles of the attendees, as well as the date and time of the training.
48. Training of Affiliated Physicians.  ProMedica will create and send an email blast advising affiliated physicians of its policy on the communication needs of Patients or Companions who are deaf or hard-of-hearing and will invite all physicians who are affiliated with ProMedica (admitting or surgical privileges, etc.) to complete computerized training.  This email will direct affiliated physicians to the ProMedica web page which will include: (1) ProMedica’s Policy Statement for persons working at ProMedica as described in paragraph 43 and any relevant forms; and (2) a request that physicians’ staff members notify ProMedica of Patients and Companions who are deaf or hard of hearing as soon as they schedule admissions, tests, surgeries, or other health care services at ProMedica.
7. Reporting
49. Compliance Reports.  Beginning in June 2019, and every  six (6) months thereafter for the entire duration of the Agreement, ProMedica will provide a written report (“Compliance Report”) to the U.S. Attorney’s Office regarding the status of its compliance with this Agreement.  The Compliance Report will include data relevant to the Agreement, including but not limited to:
1. The information required to be maintained in the Auxiliary Aid and Service Log described in paragraph 28; and
2. The number of complaints received by ProMedica from Patients and Companions who are deaf or hard of hearing regarding Auxiliary Aids and Services and/or effective communication, and the resolution of such complaints including any supporting documents; and
3. Records of training conducted and employees in attendance at training.

ProMedica will maintain records to document the information contained in the Compliance Reports and will make them available, upon request, to the U.S. Attorney’s Office.  This Compliance Report shall be applicable only to those entities in which ProMedica has any ownership interest.  Such entities are set forth in Exhibit A, attached hereto and incorporated herein by reference. In the event of a divestiture of any entity to an unrelated third party, ProMedica shall notify the U.S. Attorney’s Office and provide documentation confirming the divestiture and an updated Exhibit A, and the Compliance Report shall no longer include such entity.  In the event of a divestiture to a new entity formed by ProMedica or a ProMedica affiliate or to an existing ProMedica affiliate, then the Compliance Report shall continue to include such entity.  In the event that ProMedica acquires another entity from an unrelated third party, ProMedica shall notify the U.S. Attorney’s Office, provide documentation confirming the acquisition and an updated Exhibit A, and the Compliance Report shall include such entity going forward. In the event of an acquisition of a new facility by ProMedica, the parties agree that ProMedica shall have at least 120 days after the effective date of the acquisition to implement necessary policies, procedures, and appointment of staff to ensure compliance with the terms set forth in this Agreement.  Training of the newly acquired facility staff shall begin within 6 months of the acquisition effective date and shall be completed thereafter in accordance with the time frames set forth in Section F herein above. Any new equipment necessary to ensure compliance with the terms of this Agreement shall be acquired and ready for use as soon as practicable but no later than six months after the acquisition effective date for VRI equipment.

50. Complaints.  During the term of this Agreement, ProMedica will notify the U.S. Attorney’s Office if any person files a lawsuit, complaint, or formal charge with any state or federal agency, alleging that ProMedica failed to provide Auxiliary Aids and Services to Patients or Companions who are deaf or hard of hearing or otherwise failed to provide effective communication with such Patients or Companions.  Such notification must be provided in writing via certified mail within 28 days of the date ProMedica 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 ProMedica relevant to the allegation.  ProMedica will reference this provision of the Agreement in the notification to the U.S. Attorney’s Office.
8. Compensatory Relief for Complainants and Release
51. Within 30 days of the effective date of this Agreement, ProMedica shall make payments to each aggrieved person as outlined below, as authorized by 42 U.S.C. § 12188(b)(2)(B) and 28 C.F.R. § 36.504(a)(2), to compensate them for any harm endured (including, but not limited to emotional distress, pain and suffering, and other consequential injury) as a result of ProMedica’s failure to provide effective communication for deaf patients and companions, and for requiring family members to interpret.  ProMedica will send a check made out to each of the aggrieved persons listed below by certified mail, return receipt requested, or via hand delivery, to Angelita Cruz Bridges, AUSA, United States Attorney’s Office, Four Seagate, 433 North Summit, Suite 308, Toledo, Ohio 43604-2624.

D.C.:  $ 7,700.00
W.R.:  $3,400.00
H.S. on behalf of N. S. (deceased):  $ 15,325.00
H.S.:  $ 7,700.00
R.S.:  $ 3,800.00
A.L.:  $ 5,100.00
F.S.:  $ 8,500.00
J.P.:  $ 5,100.00

52. Within ten (10) days of the effective date of this Agreement, the U.S. Attorney’s Office will obtain and hold for counsel for ProMedica a release signed by each Complainant.  This release is attached as Exhibit D.  Once payment is received, the signed release will be delivered to counsel for ProMedica.
9. Payment of Civil Penalty to the United States
53. ProMedica shall pay to the United States the sum of Twenty Thousand Dollars ($20,000.00) (“Civil Penalty Amount”) pursuant to 42 U.S.C. § 12188(b)(2)(C) and 28 C.F.R. § 36.504(a)(3), no later than 30 days after the effective date of this Agreement by electronic funds transfer pursuant to written instructions to be provided by the United States Attorney’s Office for the Northern District of Ohio.
10. Other Provisions
54. Enforcement.  The United States may review ProMedica’s compliance with this Agreement or title III of the ADA at any time.  If the United States believes that this Settlement Agreement or any portion of it, or Title III of the ADA, has been violated, it will raise its concern(s) in writing with ProMedica, discuss those concerns with ProMedica, and the parties will then attempt to resolve the concern(s) in good faith.  If a resolution is not achieved, the United States will provide ProMedica with written notice of any breach and allow ProMedica thirty (30) days to cure said breach, prior to instituting any court action to enforce the ADA and the terms of the Settlement Agreement.  If the United States believes that title III of the ADA, this Agreement, or any portion of it has been violated, it may institute a civil action in the appropriate U.S. District Court to enforce this Agreement and/or title III of the ADA.
55. Severability.  If any term of this Agreement is determined by any court to be unenforceable, the other terms of this Agreement shall nonetheless remain in full force and effect, provided, however, that if the severance of any such provision materially alters the rights or obligations of the parties, the United States and ProMedica shall engage in good faith negotiations in order to adopt mutually agreeable amendments to this Agreement as may be necessary to restore the parties as closely as possible to the initially agreed upon relative rights and obligations.
56. Entire Agreement.  This Agreement, including Exhibits A, B, C and D, constitutes the entire agreement between the United States and ProMedica on the matters raised herein, and no prior or contemporaneous statement, promise, or agreement, either written or oral, made by any party or agents of any party, that is not contained in this written agreement, including any exhibits, is enforceable.  This Agreement can only be modified by mutual written agreement of the parties.
57. Binding.  This Agreement is binding on ProMedica, including all principals, agents, executors, administrators, representatives, employees, successors in interest, beneficiaries, and assignees.  In the event that ProMedica seeks to sell, transfer, or assign all or part of its interest during the term of this Agreement, as a condition of sale, transfer or assignment, ProMedica will obtain the written agreement of the successor, buyer, transferee, or assignee as to all obligations remaining under this Agreement for the remaining term of this Agreement.  This Agreement shall not apply to any new corporation formed through a merger between ProMedica and another health system.  However, even after such merger, if any, the obligations contained in this Agreement shall continue to apply to any currently existing ProMedica facilities for the duration of this Agreement, including the facilities listed in Exhibit A, unless divestiture is established as provided in paragraph 49.  The U.S. Attorney’s Office will be notified of any merger and provided with an updated Exhibit A, if applicable, and updated contact information in light of the merger.
58. Non-Waiver.  Failure by the United States to enforce any provision of this Agreement is not a waiver of its right to enforce that or any other provisions of this Agreement.
59. Signatory.  The signatory for ProMedica represent that he or she is authorized to bind ProMedica to this Agreement.
60. Retaliation.  ProMedica shall not discriminate or retaliate against any person because of his or her participation in this matter.
11. Effective Date/Termination Date
61. Effective Date.  The effective date of this Agreement is the date of the last signature below.
62. Duration.  The duration of this Agreement will be three (3) years from the effective date of this Agreement.

Exhibit A - ProMedica Hospital Inpatient and Outpatient Facilities

ProMedica Bay Park Hospital

ProMedica Sleep Center
The Cancer Center

ProMedica Bixby Hospital

ProMedica Cardiac Rehabilitation
ProMedica Hickman Cancer Center
ProMedica Hudson Health Center
The Birth Place (located in the hospital)

ProMedica Coldwater Regional Hospital

ProMedica Coldwater Community Cancer & Hematology Center
ProMedica Coldwater General Surgery
ProMedica Coldwater Pediatric & Adolescent Center
ProMedica Coldwater Regional Hospital Rehabilitation Center 
ProMedica Coldwater Total Rehab
ProMedica Coldwater Wound Healing Center 
ProMedica Foot & Ankle Clinic

ProMedica Defiance Regional Hospital

ProMedica 360 Health
ProMedica Sleep Center

ProMedica Flower Hospital, a division of ProMedica Toledo Hospital

ProMedica Ebeid Hospice Residence
ProMedica Flower Rehabilitation Center
ProMedica Hickman Cancer Center
ProMedica Sleep Center
ProMedica Total Rehab

ProMedica Fostoria Community Hospital

ProMedica Cancer and Infusion Center
ProMedica Fostoria Community Hospital Dialysis Center
ProMedica Pain Management
ProMedica Pulmonary and Sleep Clinic

ProMedica Herrick Hospital

ProMedica Sleep Center
The Women's Health Center

ProMedica Memorial Hospital

Center for Mental Health and Well-Being
Pain Management Center
ProMedica 360 Health
ProMedica Dorothy L. Kern Cancer Center
ProMedica Sleep Disorder Center
ProMedica Total Rehab
Weitzel-Kern Surgery Center
Women's Diagnostic Center

ProMedica Monroe Regional Hospital

ProMedica Hospice
ProMedica Monroe Cancer Center
ProMedica Monroe Regional Hospital Family Medicine Residency
ProMedica Sleep Center
ProMedica Total Rehab  Women's Health Center

ProMedica Toledo Children's Hospital

Debbie Brass Children's Cancer Center
ProMedica Finnegan Family Autism Center
The Cullen Center

ProMedica Toledo Hospital

Center for Health Services
Northwest Ohio Hemophilia Treatment Center
ProMedica 360 Health
ProMedica Mary Falzone Diabetes Center
ProMedica Sleep Center
The Cystic Fibrosis Center of Northwest Ohio
The ProMedica Toledo Hospital Breast Care Center

ProMedica Wildwood Orthopaedic and Spine Hospital, a division of ProMedica Toledo Hospital

Exhibit C

ProMedica and its office staff are committed to providing equal access to patients, family members, and companions with disabilities.

To ensure effective communication, ProMedica provides qualified sign language and oral interpreters, and other auxiliary aids and services free of charge for patients, family members, and companions, who are deaf, are hard of hearing, or have speech disabilities.

To request auxiliary aids or services, please speak to ______________.  If an auxiliary aid or service is denied, you can request a reconsideration by providing this office with a written statement explaining why you need the aid or service that was denied.  If needed, office staff can help write down your request for reconsideration.  If you have any problems, please speak to _________________ directly.  

The Americans with Disabilities Act (ADA) prohibits discrimination against people with disabilities.  People who are deaf, are hard of hearing, or have speech disabilities have the right under the ADA to request auxiliary aids and services.  For more information about the ADA, call the Department of Justice’s toll-free ADA Information Line at 1-800-514-0301 (voice), 1-833-610-1264 (TTY) or visit the ADA Home Page at www.ada.gov.