SETTLEMENT AGREEMENT
UNDER THE AMERICANS WITH DISABILITIES ACT
BETWEEN
THE UNITED STATES OF AMERICA
AND
HEALTHSOURCE SAGINAW
DJ # 202-37-239

BACKGROUND

1. The parties ("Parties") to this Settlement Agreement ("Agreement") are the United States of America ("United States") and HealthSource Saginaw, Inc. ("HealthSource Saginaw"), a not-for-profit health care organization.

BACKGROUND

2. This matter was initiated by a complaint filed with the United States against HealthSource Saginaw alleging a violation of title III of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12181-12189, and its implementing regulation, 28 C.F.R. Part 36. Specifically, the Complainant, an adolescent minor who is deaf and uses sign language as his primary means of communication, alleges that HealthSource Saginaw failed to provide him with a qualified interpreter which was necessary to ensure effective communication while being treated at HealthSource Saginaw's outpatient psychiatric clinic. The Complainant further alleges that although he only reads English at a first grade reading level, HealthSource Saginaw's only effort to facilitate effective communication was to have his physician communicate with him via pen and paper.

BACKGROUND AND JURISDICTION

3. The United States Department of Justice, of which the United States Attorney's Office is a component, is authorized under 42 U.S.C. § 12188 and 28 C.F.R. Part 36, Subpart E, to investigate the allegations of the complaint in this matter to determine HealthSource Saginaw's compliance with title III of the ADA.
4. Complainant is an individual with a "disability" within the meaning of the ADA. 42 U.S.C. § 12102; 28 C.F.R. § 36.104.
5. HealthSource Saginaw is a non-profit hospital, which owns and operates a behavioral medical center, nursing facility, rehabilitation center, and outpatient care clinics located in Saginaw Township, Michigan. HealthSource Saginaw is a "public accommodation" within the meaning of title III of the ADA, 42 U.S.C. § 12181(7)(F), and its implementing regulation at 28 C.F.R. § 36.104.
6. The ADA prohibits discrimination on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations by a public accommodation. 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a).
7. Ensuring that medical care providers do not discriminate against patients 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.
8. HealthSource Saginaw fully cooperated in the United States' investigation.
9. The Parties agree that it is in the Parties' interest, and the United States believes that it is the public interest, to resolve this matter expeditiously and without protracted litigation. Accordingly, the Parties have agreed to resolve this matter as set forth below.
10. This Agreement is neither an admission of liability by HealthSource Saginaw nor a concession by the United States that its claims are not well founded. By entering into this Agreement, HealthSource Saginaw is not admitting that any action taken with respect to Complainant was wrongful, unlawful, or in violation of any local, state or federal act or statute.
11. In consideration of the terms of this Agreement, the United States agrees to refrain from undertaking further investigation or filing a civil suit in this matter, except as provided in paragraph 45 of this Agreement.

DEFINITIONS

12. 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).
13. The term "HealthSource Saginaw Personnel" means all HealthSource Saginaw employees, both full and part-time, as well as independent contractors with contracts to work on a substantially full-time basis for HealthSource Saginaw, including, without limitation, nurses, physicians, social workers, technicians, admitting personnel, billing staff, security staff, therapists, and volunteers, who have or are likely to have patient care responsibilities or job duties that require direct contact with Patients or Companions as defined herein.
14. 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.
15. The term "Patient" shall be broadly construed to include any individual who is deaf or hard of hearing and is seeking or receiving health care services from HealthSource Saginaw, whether as an inpatient or an outpatient.
16. The term "Companion" means a person who is deaf or hard of hearing and is a family member, friend, or associate of an individual seeking access to, or participating in, the goods, services, facilities, privileges, advantages, or accommodations of a public accommodation, who, along with such individual, is an appropriate person with whom HealthSource Saginaw should communicate. 28 C.F.R. § 36.303(c)(1)(i).

ACTIONS TO BE TAKEN BY HEALTHSOURCE SAGINAW

A. Prohibition of Discrimination and Damages

17. Nondiscrimination. HealthSource Saginaw shall not discriminate against any individual with a disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations it provides. See 42 U.S.C. § 12182(a).
18. Discrimination by Association. HealthSource Saginaw shall not deny equal 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).
19. Retaliation and Coercion. HealthSource Saginaw 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.
20. Within twenty (20) days of the United States providing HealthSource Saginaw with a signed Release (fully releasing all claims against HealthSource Saginaw, its officers, its employees and its agents, including but not necessarily limited to all HealthSource Saginaw Personnel) from the Complainant and anyone legally permitted to bring a claim on Complainant's behalf, HealthSource Saginaw shall pay damages to the Complainant or someone legally authorized to receive funds on Complainant's behalf in the amount of four thousand, nine hundred and 50 dollars $4,950.00 Said payment is to be sent to Complainant c/o the United States Attorney's Office, and it shall be considered made on the date of its mailing.

B. Program for Effective Communication

21. Appropriate Auxiliary Aids and Services. Pursuant to 42 U.S.C. § 12182(b)(2) (A)(iii), HealthSource Saginaw 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 33 of this Agreement.
22. Policies for Communicating with Deaf and Hard of Hearing Patients and Companions. Within one hundred twenty (120) days of the effective date of this Agreement, HealthSource Saginaw will modify its policies and procedures on obtaining interpreters for Patients and Companions who are deaf and hard of hearing to include the following:
    1. A statement that HealthSource Saginaw will provide interpreters, free of charge, to Patients who are deaf or hard of hearing and their Companions who are deaf or hard of hearing, if the Companion is someone with whom HealthSource Saginaw should communicate about the Patient's medical care;
    2. A statement making it clear to HealthSource Saginaw Personnel that no advance approval is needed before obtaining a live interpreter for a Patient or Companion who needs one.
23. Establishment of Program to Provide Appropriate Auxiliary Aids and Services. Within one hundred twenty days (120) days of the effective date of this Settlement Agreement, HealthSource Saginaw will design and institute a program to implement the provisions of this Agreement, including but not limited to:
    1. Developing, coordinating, and overseeing the development of specific policies and procedures to fully implement this Agreement;
    2. Identifying one or more interpreter services and making appropriate arrangements with said services to provide qualified on-site interpreters;
    3. Scheduling, announcing, and promoting all training required by this Agreement;
    4. Modifying medical and intake forms and records as necessary to ensure that HealthSource Saginaw can comply with this Agreement;
    5. Developing a plan for drafting, maintaining and providing all reports required by this Agreement.
24. ADA Administrators. HealthSource Saginaw will designate at least one employee as an ADA Administrator and at least one such employee will always be on call and available twenty-four (24) hours a day, seven (7) days a week (or during the hours that the facility is open if different) to answer questions and provide appropriate assistance regarding immediate access to, and proper use of, the appropriate auxiliary aids and services, including qualified interpreters. The ADA Administrator 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. HealthSource Saginaw will circulate and post broadly within its facilities the name, telephone number, function, and office location of the Administrator, including a TTY telephone number, through which the ADA Administrator on duty can be contacted by Patients or Companions who are deaf or hard of hearing. The ADA Administrator will be responsible for the complaint resolution mechanism described in paragraph 31 of this Agreement. The ADA Administrator will be designated by HealthSource Saginaw no later than thirty (30) days following execution of this Agreement and will be subject to approval by the United States.
25. General Assessment Criteria. The determination of the type of appropriate auxiliary aids or services that will be provided, and the timing, duration, and frequency with which they will be provided, will be made by HealthSource Saginaw in consultation with the Patient or Companion. To assist in assessing Patient or Companion, HealthSource Saginaw will develop an assessment questionnaire based on the model attached to this agreement as Attachment A to be used by HealthSource Saginaw for any Patient or Companion identified as Deaf or Hard of Hearing or any other Patient or Companion who directly or indirectly expresses a need for appropriate auxiliary aids and services that are necessary for effective communication The assessment made by HealthSource Saginaw Personnel will take into account all relevant facts and circumstances, including, but not limited to, the following:
    1. the nature, length, complexity, and importance of the communication at issue;
    2. the individual's communication skills and knowledge;
    3. the individual's health status or changes thereto;
    4. the individual's request for, or statement of need for, an interpreter; and
    5. the individual's preference with respect to the type of aid or service will be provided.
26. Time for Assessment. The determination of which appropriate auxiliary aids and services are necessary, and the timing, duration, and frequency with which they will be provided, must be made at the time an appointment is scheduled for Patients who are known to be deaf or hard of hearing, or upon the arrival of the Patient or Companion who is deaf or hard of hearing at HealthSource Saginaw, whichever is earlier. HealthSource Saginaw Personnel will perform an assessment as part of each initial patient assessment and document the results in the Patient's medical chart. In the event that HealthSource Saginaw Personnel know or should know that communication is not effective, HealthSource Saginaw Personnel will reassess which appropriate auxiliary aids and services are necessary, in consultation with the individual with a disability, where possible, and provide such aid or service based on the reassessment.
27. Subsequent Visits. If a Patient or Companion has an ongoing relationship with HealthSource Saginaw, with respect to subsequent visits, HealthSource Saginaw will continue to provide the appropriate auxiliary aids or services to the Patient or Companion without requiring another request for the appropriate auxiliary aids or services by the Patient or Companion for each visit. HealthSource Saginaw will keep appropriate records that reflect the ongoing provision of auxiliary aids and services to patients and companions, such as notations in a patient's medical charts.
28. Review of New and Modified Policies. HealthSource Saginaw will submit copies of all policies and procedures that are created and/or modified in order to comply with this Agreement for review and approval to the United States prior to their implementation. The United States will make its best efforts to review the proposed policies and procedures within thirty (30) days of receipt. HealthSource Saginaw will adjust its proposed policies and procedures to reflect any reasonable comments or concerns identified by the United States. The United States will not unreasonably withhold its approval of proposed policies and procedures. To the extent the United States fails to complete its review within thirty (30) days, any deadline on an obligation that HealthSource Saginaw has with respect to the policy or procedure will automatically be extended by the number of days in excess of thirty (30) days taken by the United States to complete its review.
29. Auxiliary Aid and Service Log. HealthSource Saginaw will maintain a log in which requests for auxiliary aids and services will be documented. The log will indicate the time and date the request was made, the name of the Patient or Companion, 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 appropriate 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. Such logs will be maintained by HealthSource Saginaw for the entire duration of the Agreement.
30. Prohibition of Surcharges. All appropriate auxiliary aids and services required by this Agreement will be provided free of charge to Patients and/or Companions.
31. Complaint Resolution. HealthSource Saginaw will utilize its established grievance resolution mechanism for the investigation of disputes regarding effective communication with Patients and Companions. HealthSource Saginaw will maintain records of all grievances regarding effective communication, whether oral or written, made to HealthSource Saginaw and actions taken with respect thereto. At the time HealthSource Saginaw Personnel completes the assessment described in paragraphs 25-26 and advises the Patient and/or Companion of their determination of which appropriate auxiliary aids and services are necessary, HealthSource Saginaw will notify them of their grievance resolution mechanism, to whom complaints should be made, and of the right to receive a written response to the grievance. A written response to any grievance filed shall be completed within thirty (30) days of receipt of the complaint. Copies of all grievances related to provision of services for Patients and/or Companions and the responses thereto will be maintained by HealthSource Saginaw for the entire duration of the Agreement.

C. Qualified Interpreters

32. Circumstances Under Which Interpreters Will Be Provided. Depending on the complexity and nature of the communication, a qualified interpreter may be necessary to ensure effective means of communication for Patients and Companions. When an interpreter is needed, HealthSource Saginaw shall provide qualified sign language interpreters to Patients and Companions who are deaf or hard of hearing and whose primary means of communication is sign language, and qualified oral interpreters to such Patients and Companions who rely primarily on lip reading as necessary for effective communication. Examples of circumstances when the communication may be sufficiently lengthy or complex so as to require an 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. Obtaining informed consent 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; and
    9. Discussing powers of attorney, living wills and/or complex billing and insurance matters.
33. Provision of Interpreters in a Timely Manner.
    1. Non-scheduled Interpreter Requests. A "non-scheduled interpreter request" means a request for an interpreter made for a Patient and/or Companion who is deaf or hard of hearing, less than three hours before the Patient's appearance at the Hospitals for examination or treatment. For non-scheduled interpreter requests, HealthSource Saginaw Personnel will complete the assessment described in paragraphs 25-26 above. The interpreter shall be provided no more than one (1) hour from the time HealthSource Saginaw Personnel completes the assessment if the service is provided through a contract interpreting service or a staff interpreter who is located off-site. Deviations from this response time will be addressed with the interpreting service provider, and performance goals will be reviewed with the United States.
    2. Scheduled Interpreter Requests. A "scheduled interpreter request" is a request for an interpreter made three (3) or more hours before the services of the interpreter are required. For scheduled interpreter requests, HealthSource Saginaw Personnel will complete the assessment described in paragraphs 25-26 above in advance, and, when an interpreter is appropriate, HealthSource Saginaw will make a qualified interpreter available at the time of the scheduled appointment. If an interpreter fails to arrive for the scheduled appointment, upon notice that the interpreter failed to arrive, HealthSource Saginaw will immediately call the interpreter service for another qualified interpreter.
    3. Data Collection on Interpreter Response Time and Effectiveness. HealthSource Saginaw will monitor the performance of each qualified interpreter service it uses to provide communication to deaf or hard of hearing Patients or Companions. As part of the Auxiliary Aid and Service Log, described in paragraph 29, HealthSource Saginaw shall collect information regarding response times for each request for an interpreter.

D. Notice to Community

34. Policy Statement. Within 120 days of the effective date of this Agreement, the HealthSource Saginaw shall post and maintain signs of conspicuous size and print at all of the HealthSource Saginaw admitting stations, and wherever a Patient's Bill of Rights is required by law to be posted. Such signs shall be to the following effect: Sign language and oral interpreters, 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 Hospital Personnel or the Information Office at ____________ (voice/TTY), room ______. These signs will include the international symbols for "interpreters" and "TTYs."
35. Website. HealthSource Saginaw will include on its website the policy statement described in paragraph 34, above.
36. Patient Handbook. HealthSource Saginaw will include in all future printings of their Patient Handbooks (or equivalent) and all similar publications a statement to the following effect that identifies all auxillary aids and services utilized by HealthSource Saginaw to ensure effective communication Patients and Companions who are deaf or hard of hearing:

    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 HealthSource Saginaw programs.

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

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

E. Training

37. Training of ADA Administrator. HealthSource Saginaw will provide mandatory training for the ADA Administrator within sixty (60) days of designation as provided in paragraph 24 of this Agreement. Such training will be sufficient in duration and content to train the ADA Administrator(s) 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 HealthSource Saginaw of deaf and hard of hearing Patients and Companions as soon as Patients schedule admissions, tests, surgeries, or other health care services at the HealthSource Saginaw facilities;
    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 to appropriately utilize any and all auxiliary aids and services offered, including making and receiving calls through TTYs and the relay service; and
    6. HealthSource Saginaw Health's complaint resolution procedure described in paragraph 31 of this Agreement.
38. Training of HealthSource Saginaw Personnel. Except for affiliated physicians, who are governed by paragraph 40 of this Agreement, HealthSource Saginaw will provide mandatory in-service training to all Health Source Saginaw Personnel who might interact with Patients and/or their Companions, including but not limited to registrars, nursing staff, and employed physicians. Such training, which can be provided by a third-party, will be sufficient in duration and content to train the individual in:
    1. the various degrees of hearing impairment, language, and cultural diversity in the deaf community;
    2. identification of communication needs of persons who are deaf or hard of hearing;
    3. HealthSource Saginaw Health's auxiliary aids and services policy,
    4. recommended and required charting procedures governing requests for auxiliary aids and services;
    5. types of auxiliary aids and services available;
    6. the proper use and role of qualified interpreters;
    7. making and receiving calls through TTYs and the relay service;
    8. any other applicable requirements of this Agreement.

    Such training must be provided within one hundred eighty (180) days of the effective date of this Agreement. New employees must be trained within thirty (30) days of their hire. A screening of a video of the original training will suffice to meet this obligation.

39. Training Attendance Sheets. HealthSource Saginaw will maintain in electronic form for the duration of this Agreement, confirmation of training conducted pursuant to paragraphs 37 and 38 of this Agreement, which will include the names and respective job titles of the attendees, as well as the date and time of the training session.
40. Training of Affiliated Physicians. HealthSource Saginaw will create and send an email blast advising all physicians who have admitting privileges or who are affiliated with the hospital in any similar manner, of its policy on effective communication with Patients or Companions who are deaf or hard of hearing and will invite all physicians who are affiliated with the HealthSource Saginaw (admitting or surgical privileges, etc.) to review HealthSource Saginaw's policies on providing auxiliary aids and services to Patients and Companions who are deaf or hard of hearing.

F. Reporting, Monitoring, and Violations

41. Compliance Reports. Beginning six months after the Effective Date of this Agreement and every six months thereafter for the entire duration of the Agreement, HealthSource Saginaw will provide a written report ("Compliance Report") to the U.S. Attorney's Office for the Eastern District of Michigan 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 in Auxiliary Aid and Service Log described in paragraph 29.
    2. the number of complaints received by HealthSource Saginaw 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. HealthSource Saginaw 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.
42. Complaints. During the term of this Agreement, HealthSource Saginaw will notify the United States if any person files a lawsuit, complaint, or formal charge with a state or federal agency, alleging that HealthSource Saginaw 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 within twenty (20) days of the date HealthSource Saginaw 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 HealthSource Saginaw relevant to the allegation. HealthSource Saginaw will reference this provision of the Agreement in the notification to the United States.

G. Enforcement and Miscellaneous

43. Duration of the Agreement. This Agreement will be in effect for three (3) years from the Effective Date.
44. Effective Date. The effective date of this Agreement is the date of the last signature below.
45. Enforcement. In consideration of the terms of this Agreement as set forth above, the United States agrees to refrain from undertaking further investigation of HealthSource Saginaw, and from filing a civil suit under title III in relation to this matter, except as provided in paragraph 46. Except as stated in the foregoing sentence, nothing contained in this Agreement is intended or shall be construed as a waiver by the United States of any right to institute proceedings against HealthSource Saginaw for violations of any statutes, regulations, or rules administered by the United States or to prevent or limit the right of the United States to obtain relief under the ADA.
46. Compliance Review and Enforcement. Except as otherwise stated in this Agreement, the United States may review compliance with this Agreement or title III of the ADA at any time and can enforce this Agreement if the United States believes that it or any requirement thereof has been violated by instituting a civil action in U.S. District Court. If the United States believes that this Agreement or any portion of it has been violated, it will raise its claim(s) in writing with HealthSource Saginaw, and the Parties will attempt to resolve the concern(s) in good faith. The United States will allow HealthSource Saginaw thirty (30) days from the date it notifies HealthSource Saginaw of any breach of this Agreement to cure said breach, prior to instituting any court action to enforce the ADA or the terms of the Agreement.
47. Entire Agreement. This Agreement and the attachments hereto constitute the entire agreement between the Parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written agreement, shall be enforceable. This Agreement is a compromise of claims and limited to the facts set forth herein and does not purport to remedy any other potential violations of the ADA or any other federal law.
48. Binding. This Agreement is final and binding on the Parties, including all principals, agents, executors, administrators, representatives, successors in interest, beneficiaries, assigns, heirs and legal representatives thereof. Each party has a duty to so inform any such successor in interest.
49. Non-Waiver. Failure by the United States to seek enforcement of this Agreement pursuant to its terms with respect to any instance or provision shall not be construed as a waiver to such enforcement with regard to other instances or provisions.  

ON BEHALF OF THE UNITED STATES OF AMERICA