- This action was initiated by a
complaint filed with the United States against Southern New Hampshire Medical
Center ("the Hospital"). The complaint was investigated by the Department of
Justice and the United States Attorney´s Office for the District of New
Hampshire under the authority granted by section 308(b) of the Americans with
Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12188.
- The Hospital is an acute care
facility located at 8 Prospect Street in Nashua, New Hampshire.
- The complainant in this matter,
[redacted], is deaf and is an individual with a disability within the
meaning of the ADA, 42 U.S.C. § 12102(2) and its implementing regulation at 28
C.F.R. Part 36.
- The Hospital is a "public
accommodation" as defined in 42 U.S.C. § 12181(7)(F) and its implementing
regulation, 28 C.F.R. § 36.104, because it is a private entity that operates a
place of public accommodation, specifically, a hospital.
- The ADA prohibits public
accommodations, including hospitals, from discriminating on the basis of
disability in the full and equal enjoyment of the goods, services, facilities,
privileges, advantages or accommodations. 42 U.S.C. § 12182(a); 28 C.F.R.
§ 36.201(a).
- The complainant alleges that the
Hospital discriminated against him by failing to provide him with the full and
equal enjoyment of the Hospital´s goods, services, facilities, privileges,
advantages or accommodations and by failing to provide appropriate auxiliary
aids and services when necessary for effective communication. The complainant,
who communicates primarily via American Sign Language, alleges that the
Hospital discriminated against him and his companion by failing to provide appropriate
auxiliary aids and services necessary for effective communication when the
complainant sought treatment at the Hospital on or about May 19, 2008. The
complaint alleged that despite repeated requests for a sign language
interpreter, staff at the Hospital never provided any interpreter services to
assist him during his visit. The complaint further alleges that the Hospital´s
staff repeatedly attempted to persuade [redacted] companion (who is not a
qualified interpreter) to serve as an interpreter, despite her unwillingness to
do so. The complainant alleges that he was not able to understand what was
taking place during his Hospital visit. As a result, the complainant alleges
that the Hospital failed to ensure effective communication as required by the
ADA.
- The United States has conducted an
investigation of the complainant´s allegations. The Hospital has cooperated in
that investigation. As a result of the investigation, the United States takes
the position that the Hospital violated title III of the ADA and its
implementing regulation by discriminating against the complainant.
- The Hospital disputes that it
discriminated against the complainant and expressly denies any liability.
Without conceding the allegations of the United States, or the possible
defenses of the Hospital, all parties agree that it is in their best interests
to resolve this matter promptly and without protracted litigation. This
Agreement shall not be construed as an admission of liability by the Hospital.
In consideration of the terms of this Agreement, the United States agrees to
refrain from undertaking further investigation or from filing a civil suit in
this action, except as provided in paragraphs 87 and 88. In entering this
Settlement Agreement, the United States has specifically taken into
consideration a variety of issues related to interpreter availability that are
unique to New Hampshire.
- The parties hereby agree to the
following:
DEFINITIONS
- The term "Appropriate Auxiliary Aids and Services" includes, but
is not limited to: qualified sign language, oral, relay or tactile
interpreters, video interpreting services, qualified note-takers,
computer-assisted real time transcription services, written materials,
telephone handset amplifiers, assistive listening devices and systems,
telephones compatible with hearing aids, closed caption decoders, open and
closed captioning, TTY´s, acquisition or modification of equipment or devices,
universal sound signalers, sonic blink strobe receivers, telephone signalers,
and other methods of delivering effective communication that may have come into
use or will come into existence in the future. 28 C.F.R. § 36.303.
- The term "Companion" means 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 the public accommodation should communicate.
- The
term "deaf" shall refer to persons who are deaf, late-deafened or
hard-of-hearing. The term "hard-of-hearing" includes persons who have a
hearing deficit and who may or may not primarily use visual aids for
communication and may or may not use auxiliary aids.
- The term "Effective Date of this Settlement Agreement" means the date of
the last signature on this Settlement Agreement.
- The
term "Hospital Personnel" shall mean: all employees and independent
contractors with contracts to work on a substantially full-time basis for the
Hospital (or on a part-time basis for the Hospital), including, without
limitation, nurses, physicians, social workers, technicians, admitting
personnel, receptionists, telephone operators, billing staff, security staff,
therapists, and all volunteers, who have or are likely to have direct contact
with Patients or Companions. The term also includes all affiliated physicians
or other health care professionals who have medical staff privileges that
permit them to see and/or treat Patients at the Hospital.
- The term "in-service" shall include, without limitation, such means of
training or familiarization of Hospital Personnel as are customarily utilized
by the Hospital including, without limitation, written policies and procedures,
videotapes, training materials, training sessions, seminars, conferences, and
the like.
- The term "Parties" shall mean: the Hospital and the United States, acting
by and through the Department of Justice and the United States Attorney´s
Office for the District of New Hampshire.
- The
term "Patient" shall be broadly construed to include any deaf or
hard-of-hearing individual (or individual accompanied by a deaf or
hard-of-hearing Companion) who is seeking or receiving health care services,
including mental health services, from the Hospital (whether on an inpatient or
outpatient basis), as well as deaf or hard-of-hearing individuals seeking to
use any other goods or services provided by the Hospital, 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) deaf or
hard-of-hearing individuals seeking to communicate with representatives of the
Hospital regarding past, present or future health care services, such as
scheduling appointments, obtaining test results, and discussing billing issues.
- The
term "qualified note-taker" shall mean: one who is able to take notes
effectively and accurately, using any necessary specialized vocabulary and
terminology.
- The
terms "qualified sign language interpreter," "oral
interpreter," or "interpreter" shall mean: 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, given that individual´s language skills and history. Not
all interpreters are qualified for all situations. For example, an interpreter
who is qualified to interpret using American Sign Language is not necessarily
qualified to interpret orally. Someone who has only a rudimentary familiarity
with sign language or finger spelling is not a "qualified sign language
interpreter" under this Settlement Agreement. Likewise, someone who is
fluent in sign language but who does not possess the ability to process spoken
communication into the proper signs or to observe someone else signing and
change his or her signed or finger-spelled communication into spoken words is
not a qualified sign language interpreter. 28 C.F.R. § 36.104.
- The
term "Standards" shall mean: the ADA Standards for Accessible Design,
as set forth at 28 C.F.R. Part 36, App. A (1994).
- The
term "TTY's" or "TDD's" shall mean: devices that are used
with a telephone to communicate with persons who are deaf or hard-of-hearing by
typing and reading communications.
- The
term "Scheduled Incidents" shall mean situations in which there are three (3)
or more hours between the time when a Patient or Companion makes a request for
an interpreter and when the services are required between 8:00 a.m. and 8:00
p.m. on weekdays. With respect to services required during evenings (between
8:00 p.m. and 8:00 a.m.), weekends, and holidays, the term shall mean
situations in which there are four (4) or more hours between the time when a
Patient or Companion makes a request and the time when the services are
required.
- The
term "Non-scheduled Interpreter Requests" shall mean a request for an interpreter
that is made during the appearance at the Hospital by a Patient or Companion
for examination or treatment that was not scheduled prior to the time such
Patient or Companion came to the Hospital.
PROHIBITION
OF DISCRIMINATION
- Non-Discrimination
The Hospital will provide appropriate auxiliary aids and services, including
qualified sign language interpreters, where such aids and services are
necessary to ensure effective communication with Patients and Companions, as
required by the ADA. Pursuant to 42 U.S.C. § 12182(a), the Hospital will also
provide Patients and Companions with the full and equal enjoyment of the
services, privileges, facilities, advantages, and accommodations of the
Hospital as required by this Settlement Agreement and the ADA. The Hospital
shall not deny its services, privileges, facilities, advantages, and
accommodations to anyone based on the fact that the person is deaf or
hard-of-hearing or is associated with someone known to be deaf or
hard-of-hearing, as required by the ADA.
- Retaliation
and Coercion The Hospital agrees not to retaliate against or coerce in any
way any person who made or is making a complaint according to the
provisions of this Settlement Agreement or is exercising his or her rights
under this Settlement Agreement or the ADA.
PROGRAM
FOR EFFECTIVE COMMUNICATION
General Obligations
- Appropriate
Auxiliary Aids and Services Pursuant to 42 U.S.C. § 12182 (b)(2)(A)(iii),
the Hospital will provide to Patients and Companions any appropriate auxiliary
aids and services that may be necessary for effective communication after
making the determination described in paragraph 30 of this Settlement
Agreement. Appropriate auxiliary aids and services will be provided as soon as
practicable, except that the provision of qualified interpreters must be within
the time frames described in paragraphs 46 and 47 of this Settlement Agreement
- Establishment
of Program to Provide Appropriate Auxiliary Aids and Services Within 120
days of the Effective Date of this Settlement Agreement (except as otherwise
specified below), the Hospital will design and institute a program to implement
the provisions of this Settlement Agreement, including without limitation:
- developing, coordinating, and overseeing the development of specific
procedures to implement fully this Settlement Agreement;
- scheduling, announcing, and promoting all training required by this
Agreement;
- coordinating the community outreach required by this Settlement Agreement
(which shall be accomplished within 120 days of the Effective Date of this
Settlement Agreement);
- modifying medical and intake forms as necessary to ensure that the Hospital
makes the communication determination required by this Settlement Agreement for
each Patient or Companion, including developing a communication determination
form; and
- developing a plan for drafting, maintaining, and providing all reports
required by this Settlement Agreement.
- Program Administrators Simultaneously with the
establishment of the program, the Hospital shall designate two or more
positions ("Program Administrators"), who shall be available twenty-four (24)
hours a day, seven (7) days a week, to answer questions and provide appropriate
assistance regarding immediate access to and proper use of appropriate
auxiliary aids and services required by this Settlement Agreement, including
providing qualified interpreters within the time frames set forth in this
agreement. Such Program Administrators shall know where the appropriate
auxiliary aids are stored and how to operate them and will have and exercise
authority to require their maintenance, repair, replacement, and distribution.
The Hospital will circulate broadly within the Hospital the names, telephone numbers,
functions, and office locations of such Program Administrators, including a TTY
telephone number that may be called by Patients and Companions in order to
obtain the assistance of such Program Administrators. Program Administrators
will respond to routine telephone inquiries about the program during normal
business hours and maintain a recording system for routine inquiries received
after normal business hours. The Program Administrators will be responsible
for the complaint resolution mechanism described in paragraph 40 of this
Settlement Agreement. The Program Administrators will be designated by the
Hospital no later than 30 days following the Effective Date of this Settlement
Agreement.
- Review of New and Modified Policies The
Hospital shall submit copies of all policies and procedures that are created or
modified in order to comply with this Settlement Agreement for review and
approval to the United States prior to the implementation of such policies
and/or procedures. The United States will make its best efforts to review the
proposed policies and procedures within thirty (30) days of receipt. The
Hospital will adjust these proposed policies and procedures to reflect any
comments or concerns identified by the United States. The United States will
not unreasonably withhold its approval of proposed policies and procedures.
Provision
of Appropriate Auxiliary Aids and Services
- General Determination 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. This
determination will be made in consultation with the Patient or Companion,
wherever possible, to determine what type of auxiliary aids or services are
needed to ensure effective communication. The Hospital
will develop a form for conducting this determination no later than thirty (30)
days following the Effective Date of this Settlement Agreement. The
determination made by Hospital Personnel will take into account all relevant
facts and circumstances, including without limitation the following:
- the nature, length, and importance of the
communication at issue;
- the individual´s communication skills and
knowledge;
- the Patient´s health status or changes thereto;
- the Patient´s and/or Companion´s request for
or statement of need for an interpreter or other specific auxiliary aid or
service;
- 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
- the availability at the required times, day or
night, of appropriate auxiliary aids and services.
- Timing of Determination
The initial determination will be made at the earliest of the following: (1)
the time an appointment is scheduled; (2) the time the Hospital becomes aware
that the Patient or Companion is en route to the Hospital; or (3) the time the
Patient or Companion initially comes in contact with Hospital Personnel.
Hospital Personnel will perform and document a communication determination as
part of each initial Patient assessment. Completion of communication
determinations, including copies of any determination form used, will be
documented in the Patient's medical record. In all instances where Hospital
Personnel become aware that a Patient or Companion is en route to the Emergency
Department (by ambulance or otherwise), Hospital Personnel will make reasonable
efforts to conduct a determination in advance of the Patient or Companion´s
arrival and seek to have auxiliary aids and services available as soon as
practicable after the Patient or Companion´s arrival at the Hospital.
- Redetermination
The Hospital shall reassess its determination of which appropriate auxiliary
aids and services are necessary, in consultation with the Patient or Companion,
when a Patient or Companion indicates that communication has not been
effective. The Hospital will document any instances where Patients or
Companions indicate that the auxiliary aids and services provided by the
Hospital failed to provide effective communication. The Hospital will document
any redeterminations and the results of any redeterminations.
- Subsequent Patient
Visits The Hospital shall 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
subsequent visits to the Hospital. Hospital Personnel shall keep appropriate
records that reflect the provision of auxiliary aids and services to Patients
and Companions, such as notations in Patients´ medical charts. Such records
should document whether or not any particular auxiliary aids or services (or
individual interpreters) provided effective communication. During a Patient or
Companion´s subsequent visit, Hospital Personnel shall reference the Patient´s
prior medical records, where available, as part of the Communication
Determination required by paragraph 30.
- Medical Concerns
Nothing in this Settlement Agreement will require that an electronic device
or equipment constituting an appropriate auxiliary aid be used when or where
its use may interfere with medical or monitoring equipment or may otherwise
constitute a threat to the Patient´s medical condition. Similarly, nothing in
this Settlement Agreement shall be construed to require the Hospital or
Hospital Personnel to take any action or inaction that would jeopardize the
safety of any person or compromise the quality of any person´s medical care, or
jeopardize the health of an Interpreter.
- Determination Not
to Provide Auxiliary Aid or Service If, after conducting a determination,
the Hospital determines that the circumstances do not warrant provision of a
particular auxiliary aid or service. Hospital Personnel will so advise the
person requesting the auxiliary aid or service and will document the date and
time of the denial, the name and title of the Hospital Personnel making the
determination, and the basis for the determination. A copy of this
documentation will be provided to the Patient (and Companion, if applicable);
will be maintained with the Auxiliary Aid and Service Log described in paragraph
38 of this Settlement Agreement; and will be placed in the Patient´s medical
chart. Any determination to provide an interpreter through a video
interpreting service when a Patient or Companion has requested a live
interpreter also will be documented. It is understood that, even if the
Hospital determines that a particular auxiliary aid or service is not to be
provided, some means of effective communication must be secured.
- Prohibition of
Surcharges for Patients or Companions All appropriate auxiliary aids and
services required by this Settlement Agreement will be provided free of charge
to the Patient and/or Companion.
- Individual Notice
in Absence of Request If a Patient and/or Companion does not request
appropriate auxiliary aids or services, but Hospital Personnel have reason to
believe, after conducting the determination described in paragraph 30 of this
Settlement Agreement, that such person would benefit from appropriate auxiliary
aids or services for effective communication, the Hospital will specifically
inform the Patient and/or Companion that appropriate auxiliary aids and
services are available free of charge.
- Auxiliary Aid and
Service Log The Hospital will maintain a log of: (a) each request for an
appropriate auxiliary aid and service; (b) the type of auxiliary aid or service
requested; (c) the time and date the request is made; (d) the name of the
Patient (and Companion, if applicable); (e) the time and date of the scheduled
appointment (if a scheduled appointment was made); (f) the name of the Hospital
Personnel who performed any communication determination or redetermination; (g)
the name of any Hospital Personnel responsible for determining whether or not
to provide the requested auxiliary aid or service; (h) the nature of the
auxiliary aid or service provided; (i) the time and date the appropriate
auxiliary aid and service was provided, or a statement that the appropriate
auxiliary aid and service was not provided and the reason why the aid or
service was not provided. Such logs will be maintained by the Program
Administrators for the entire duration of the Settlement Agreement, and will be
incorporated into the semi-annual Compliance Reports, as allowed by state and
federal law, as described in paragraph 80 of this Settlement Agreement.
- Communication with
Patients and Companions The Hospital will take appropriate steps to ensure
that all Hospital Personnel having contact with a Patient or a Companion are
made aware of such person´s need for an auxiliary aid or service 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 are aware of: (a) the Hospital´s
policies and procedures implementing this Settlement Agreement and the ADA; (b)
the Hospital´s policies and procedures governing requests for appropriate
auxiliary aids and services by Patients and Companions; and (c) the role of the
Program Administrators described in paragraph 28 of this Settlement Agreement.
- Complaint Resolution
The Hospital will continue in place its current complaint mechanism for the
resolution of disputes regarding effective communication with Patients and
Companions, but will amend its Complaint and Grievance Process within thirty
(30) days of the Effective Date of this Settlement Agreement to state that this
process applies to complaints and grievances related to the requirements of the
ADA. The Hospital will maintain records of all complaints regarding effective
communication, whether oral or written, made to the Hospital and actions taken
with respect thereto. The Hospital will notify Patients and Companions of its
complaint resolution mechanism, to whom complaints should be made, and of the
right to receive a written response to the complaint. Within thirty (30) days
of receipt of the complaint, the Hospital shall provide a written response to
the complaint and shall provide a copy of the complaint and the response to the
United States. Copies of all complaints or notes reflecting oral complaints
and the responses thereto will be maintained by the Program Administrators for
the entire duration of the Settlement Agreement.
Provision of Qualified Interpreters
- Circumstances Under
Which Interpreters Will Be Provided The Hospital shall provide qualified
sign language interpreters to Patients and Companions whose primary means of
communication is sign language, and qualified oral interpreters to such
Patients and Companions who rely primarily on lip reading, as necessary for
effective communication. The determination of when such interpreters shall be
provided to Patients or Companions shall be made as set forth in paragraphs 30
through 32 above. The following are examples of circumstances when it may be
necessary to provide interpreters:
- determination of a Patient's medical history or
description of ailment or injury;
- provision of Patients' rights, informed consent
or permission for treatment;
- determination and explanation of Patient´s
diagnosis or prognosis, and current condition;
- explanation of procedures, tests, treatment,
treatment options or surgery;
- religious services and spiritual counseling
provided by the Hospital;
- explanation of living wills or powers of attorney
(or their availability);
- diagnosis or prognosis of ailments or injuries;
- 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);
- determination of any condition or allergy of a
Patient that may affect choice of medication;
- explanation regarding follow-up treatments,
therapies, test results or recovery;
- blood donations or apheresis (removal of blood
components);
- discharge planning and discharge instructions;
- provision of mental health evaluations, group
or individual therapy, counseling and other therapeutic activities, including,
but not limited to, grief counseling and crisis intervention;
- explanation of complex billing or insurance
issues that may arise;
- educational presentations, such as classes
concerning birthing, nutrition, CPR, and weight management;
- filing of administrative complaints or
grievances against the Hospital or Hospital Personnel; and
- any other circumstance in which a qualified
sign language interpreter is necessary to ensure a Patient´s rights provided by
law.
- The foregoing list of
circumstances is neither exhaustive nor mandatory, and shall not imply that
there are not other circumstances when it may be appropriate to provide
interpreters for effective communication nor that an interpreter must always be
provided in these circumstances.
- Contract
for Obtaining Interpreters The Hospital will use its best efforts to enter
into a contract with one or more reputable interpreter(s) and/or interpreter
agency(ies) to provide qualified interpreters at the request of the Hospital.
Each such contract will, at a minimum, require the interpreter or agency to use
its best efforts to maintain a response time of one (1) hour or less in at
least eighty percent (80%) of non-scheduled incidents within any six (6) month
period (excluding any incident when the determination calls for an interpreter
to be provided at a later time), measured from the time the call is placed to
the interpreter or agency.
- Free-Lance
Interpreters Within thirty (30) days of the Effective Date of this
Settlement Agreement, the Hospital will compile and maintain as current a list
of all known free-lance sign language and oral interpreters who reside within
forty-five (45) miles of the Hospital.
- Staff Interpreters The Hospital may, but shall
have no obligation to, satisfy its obligations under this Settlement Agreement
by hiring or otherwise contracting with qualified staff 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 Settlement Agreement. The Hospital
may assign other duties to staff interpreters. To the extent that the Hospital
does not have staff interpreters or a staff interpreter is not available when
needed, the Hospital will follow the procedures set forth elsewhere in this
Settlement Agreement to obtain the services of qualified interpreters.
Provision of Interpreters in a Timely Manner
- Scheduled Incidents
For Scheduled Incidents, where an interpreter is necessary to ensure effective
communication, the Hospital will have video interpreting services available at
the time of the scheduled appointment or will arrange to have a live
interpreter available if a live interpreter is necessary in order to achieve
effective communication (including situations identified in paragraph 53 in
which video interpreting services are not effective). If an interpreter fails
to arrive for the Scheduled Incident, the Hospital will immediately call the
interpreter service for another qualified sign language interpreter upon notice
that the interpreter failed to arrive. Similarly, when making a qualified
interpreter available, Hospital Personnel shall clearly identify the
interpreter´s availability and make immediate efforts to locate a replacement
interpreter if it appears that the original interpreter will not be able to
stay throughout the scheduled incident.
- Non-scheduled Interpreter
Requests; Time Standards After receiving a Non-scheduled Interpreter
Request, and determining in accordance with paragraph 30 that a live
interpreter is necessary, the Hospital shall make an interpreter available as
soon as practicable. Hospital Personnel will make the Hospital´s request for
an interpreter within fifteen (15) minutes after completing a determination
described in paragraph 30, above, that determines that a live interpreter is
necessary. Hospital Personnel will also make such a request within fifteen
(15) minutes of any situation identified in paragraph 53 where video
interpreting services are not effective. The Hospital will meet the following
overall time standards for providing qualified sign language interpreters to
Patients and/or Companions. The Hospital will maintain a response time of one
(1) hour in eighty percent (80%) of non-scheduled interpreter requests within
any six (6) month period. Whether this standard is met will be measured
beginning (15) minutes after it is determined that an interpreter is required.
In no event will the Hospital´s response time exceed three (3) hours.
- Specific Steps for
Non-scheduled Interpreter Requests Within fifteen (15) minutes after
completing a determination (as described in paragraph 30) that finds that
interpreting services are required, Hospital Personnel will provide video
interpreter services. Within 15 minutes after completing a determination (as
described in paragraph 30) that determines that a live interpreter is required,
Hospital Personnel also will request an interpreter (qualified to interpret for the specific individual who will be using
the services) from the interpreters or agencies with whom the Hospital has an
ongoing contract for qualified interpreter services. If no interpreter can be
located, Hospital Personnel will take the following additional steps:
- Hospital Personnel will exert reasonable
efforts (which shall be deemed to require no fewer than five (5) telephone
inquiries and/or emails and/or text messages unless exceptional circumstances
intervene) to contact any free-lance interpreters or other interpreting
agencies already known to the Hospital and request their services;
- inform a Program Administrator of the efforts
made to locate an interpreter and solicit assistance in locating an
interpreter;
- inform the Patient or Companion (or a family
member or friend, if the Patient or Companion is unavailable) of the efforts
taken to secure a qualified interpreter and that the efforts have failed, and follow
up on reasonable suggestions for alternate sources of interpreters, such as
contacting an interpreter known to that person;
- clearly identify the interpreter´s availability
and make immediate efforts to locate a replacement interpreter if it appears
that the original interpreter will not be able to stay throughout the incident;
and
- document all of the above efforts.
- Provision of
Qualified Interpreters Throughout a Hospitalization The Hospital will
develop a policy and implement procedures to ensure that once a Patient has
been admitted to the Hospital and the determination described in paragraph 30
of this Settlement Agreement has determined that a qualified sign language
interpreter is necessary to achieve effective communication during the
hospitalization of the Patient, qualified interpreters are made available at
all events requiring substantial communication between the Patient and the
Hospital Personnel. It is highly likely that such events will include
post-surgical sessions, doctor rounds, discharge meetings, and other
physician-Patient meetings, as well as for the performance of any tests,
procedures or therapy. A Patient will not be required to renew requests for a
qualified interpreter for these events. In the case of Companions, the
Hospital will provide a qualified interpreter for any event that the Companion
will attend provided that the Hospital Personnel are advised in a reasonably
timely fashion that the Companion will be present at the event. The Hospital will provide notice to all Patients and
Companions of this policy.
- Data Collection on
Interpreter Response Time and Effectiveness: Feedback Forms The Hospital
will monitor the performance of each qualified sign language interpreter it
uses to provide communication to Patients or Companions. As part of the
Auxiliary Aid and Service Log, described in paragraph 38 of this Settlement
Agreement, the Hospital shall collect information regarding response times for
each request for an interpreter. The Hospital shall also prepare a form
requesting feedback concerning the timeliness and effectiveness of interpreter
services. This feedback form shall be provided to each Patient or Companion
who requests an interpreter or receives the services of an interpreter. The
Hospital shall use the feedback forms for monitoring and evaluating the
performance of each interpreter it provides to Patients and Companions. The
Program Administrators shall maintain the completed feedback forms for the Term
of this Settlement Agreement.
- Video Interpreting
Services Video interpreting services can provide immediate, effective
access to interpreting services seven days per week, twenty-four hours a day in
a variety of situations including scheduled incidents, emergencies, and
unplanned incidents and can also be used as a stop-gap measure until a
qualified interpreter is available. When using video interpreting services,
the Hospital shall ensure that: (a) the service delivers high quality, clear,
delay-free full-motion video and audio over a dedicated high-speed Internet
connection; (b) the service provides a clear and sharply delineated picture of
the interpreter´s and the Patient´s or Companion´s heads, arms, hands, and
fingers, regardless of the body position of the Patient or Companion; (c)
voices being transmitted are clear and easily understood; and (d) the
interpreter providing video interpreting services is a qualified interpreter
who is capable of communicating effectively with the Patient or Companion.
- The Hospital shall
ensure that its staff is trained and able to operate and connect the video
interpreting services quickly and efficiently and that the services are
available at the Hospital at all times. The Hospital should connect the
service within fifteen (15) minutes of a determination. Moreover, the Hospital
shall train staff regarding the limitations of the technology, particularly
with respect to: (a) Patients who have limited ability to move their heads,
hands, or arms; vision problems; cognitive or consciousness issues; or pain
issues; (b) Patients who may be moved repeatedly to areas of the Hospital that
do not have a designated high speed Internet line; and (c) Patients who will be
treated in rooms where space considerations militate against using the service.
Once the system is operating, Hospital Personnel shall
ask the Patient or Companion whether the video interpreting service is meeting
his or her communication needs and make a record of his or her response.
- In
the event that the Patient or Companion indicates that he/she is unable to
communicate effectively using the video interpreting service, the Hospital
Personnel will: (a) document the concern; (b) make all reasonable efforts to
locate a qualified sign language interpreter or other auxiliary aid or service
that will provide effective communication; (c) document all such efforts; and
(d) periodically inform the Patient/Companion of the status of those efforts.
- Force Majeure
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 of whether the prescribed response criteria have been met.
Force majeure events are events outside the reasonable control of the Hospital,
the interpreter service 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, unanticipated Internet or telephone
problems, 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).
- Modification of
Performance Standards In the event
that the response time standards described in paragraphs 46 and 47 of this
Settlement Agreement cannot be maintained despite the Hospital´s good faith
efforts, the Hospital is entitled to request the consent of the United States
to such modifications of the response time standards as may be reasonable under
the circumstances. The United States will consider any such request reasonably
and in good faith and will not deny its approval unreasonably. Any such
modification to which the parties agree will be deemed an amendment to this
Settlement Agreement.
- Notice to Patients and Companions 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
person (or a family member or friend, if such person is not available) of the
current status of efforts being taken to secure the appropriate auxiliary aids
and services on his or her behalf. If an interpreter has not arrived within
one hour of such notice, the Hospital shall follow up with the Patient,
Companion (or family member or friend if the person seeking the interpreter is
not available) regarding the expected arrival time of the interpreter or
whatever is known regarding the status of the Hospital´s endeavor to secure an
interpreter. Additional updates shall be provided thereafter as necessary
until such aids and services are secured. Notification of efforts to secure a
qualified interpreter does not diminish the Hospital´s obligation to provide
qualified interpreters in a timely manner as required by paragraphs 46 and 47
of this Settlement Agreement.
- Other Means of Communication The Hospital agrees that
between the time an interpreter is requested and when an interpreter arrives,
Hospital Personnel will continue to try to communicate with the Patient or
Companion for such purposes as they would have communicated with the person
but for the hearing impairment, using all available methods of communication.
Such means of communication may include, but are not limited to, video
interpreting services, written notes or 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 Settlement Agreement. Once
an interpreter arrives, the Hospital Personnel will ensure that the Patient or
Companion has a reasonable understanding of the care already provided and the
current treatment plan.
- 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 Hospital shall never require 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
Hospital Personnel and such Patient or Companion. 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. A Patient or Companion´s waiver of a qualified sign language
interpreter under this provision must be made in the Patient´s chart or
records. This provision in no way lessens the Hospital´s obligation to provide
appropriate auxiliary aids and services as required under this Settlement
Agreement.
Telephones and Related Equipment
- Public Telephones As soon
as practicable but no later than one hundred twenty (120) days after the
Effective Date of this Settlement Agreement, the Hospital will provide the
following:
- TTY's in public areas The Hospital will make a
TTY device available wherever a telephone is made available to the public
(whether public pay telephone, public closed circuit telephone, or otherwise).
To satisfy this provision, the Hospital can permanently install the required
TTY's or make available a sufficient number of portable TTY's. Standards §§
4.1, 4.31.9. Each such TTY, whether permanently installed or portable, shall
comply fully with §§ 4.30 and 4.31 of the Standards.
- TTY's required in specific locations The
Hospital will provide a TTY at each public telephone location in or adjacent to
an emergency department, recovery room, or waiting room. Standards §§ 4.1,
4.31.9. To satisfy this provision, the Hospital can permanently install the
required TTY's or make available a sufficient number of portable TTY's. Each
such TTY, whether permanently installed or portable, shall comply fully with §§
4.30 and 4.31 of the Standards.
- Shelves and outlets Wherever portable TTY's
are made available as an alternative to installed TTY's (at emergency
departments, recovery rooms, and waiting rooms, and where there are banks of
four or more public telephones), and wherever there is a bank of three or more
public telephones, the Hospital will provide shelves and electrical outlets
that comply with § 4.31.9 of the Standards.
- Signs indicating the location of TTY's
- Wherever public telephones are available but
TTY's are not permanently installed, the Hospital will post signs complying
with the Standards. Such signs will indicate the location of the nearest
portable or permanently installed TTY's; and
- Wherever TTY's are permanently installed,
the Hospital will post signs complying with § 4.30 of the Standards to indicate
their location.
- Volume control telephones The Hospital
will ensure that no less than twenty-five (25) percent of all public telephones
are equipped with volume control mechanisms, plus at least one public telephone
at each of the following locations: in or adjacent to emergency departments,
recovery rooms, and waiting rooms. Each volume control telephone shall comply
with § 4.31.5 of the Standards. The Hospital will ensure that volume control
phones are dispersed among all public telephones throughout the Hospital. The
Hospital will ensure that signs complying with § 4.30 of the Standards are
displayed at each volume control telephone. Alternatively, if all public
telephones are equipped with volume control mechanisms, the Hospital may
satisfy this requirement by prominently displaying signs in diverse locations
throughout the Hospital that state this fact.
- Storage and availability of equipment Portable equipment required by this section for use in public areas shall be
stored in places that are readily accessible to all Hospital Personnel who have
client contact at all times of the day and night. All Hospital Personnel will
be notified of the storage location that is closest to their work area(s). The
equipment is to be stored at the appropriate supervised location (e.g.,
nurses' station, admission desk, etc.) closest to the public phone for which
the equipment is to be made available. Such equipment shall be made available
to Patients or Companions who are deaf or hard-of-hearing or who have speech
impairments as soon as practicable but no more than fifteen (15) minutes from
the time of the person´s request; except to the extent that it would compromise
good medical care and/or the safety of other patients at the Hospital. Program
Administrators (as discussed in paragraph 28) will be responsible for ensuring
that this equipment remains readily accessible.
- Telephones in Patient Rooms Within one hundred twenty (120) days of the Effective Date of this
Settlement Agreement:
- Portable access technology - defined The
Hospital will make available portable access technology. Such technology, as
referred to in this section, shall include TTY's with printout capability,
visual notification devices for incoming telephone calls, volume control
telephones, and telephones that are hearing aid compatible. The Hospital shall
ensure that each volume control telephone and each visual notification device
for incoming telephone calls complies fully with § 4.31 of the Standards.
- Portable access technology - general
obligation The Hospital will make portable access technology available to
Patients and Companions who are deaf or hard-of-hearing who are admitted to (or
are accompanying Patients who are admitted to) rooms equipped with a telephone.
In units of the Hospital where patients normally do not have telephones in
their rooms, if hearing patients are given access to common area telephones
other than the public phones identified in this Settlement Agreement, the
Hospital will maintain in each such unit appropriate portable access technology
that can be used by Patients and Companions so that such persons have equal
access to make outgoing calls and receive incoming calls as do hearing persons.
- Electrical Outlets Each patient room
with a telephone shall have an electrical outlet within four (4) feet of the
telephone connection to facilitate the use of a TTY device. The Hospital will
provide a heavy-duty extension cord for any patient room that is not so
equipped.
- Timeliness Within one hundred twenty
(120) days of the Effective Date of this Settlement Agreement, the Hospital
will make the equipment required by this section available within thirty (30)
minutes of a Patient's arrival in a patient room, regardless of the hour of the
day or night. The Hospital will notify all
relevant Hospital Personnel of the availability and location of this equipment.
Captioning and Decoders
- Televisions
and Caption Decoders Within thirty (30) days of the Effective Date of this
Settlement Agreement, the Hospital will develop a policy to ensure that
Patients and Companions with hearing impairments have priority use of televisions
with closed captioning capabilities. 28 C.F.R. § 36.303(e).
- Clearly stated directions for
use of the closed caption capability shall be included in the Patient Guide or
otherwise made available in each patient room or public area containing a
television with captioning capability. The directions for operating the
closed caption function shall also accompany all closed caption decoders for
standard television sets.
- Duty to Provide Visual Programs
in a Manner That is Accessible to Persons WithHearing Impairments
- It is expressly agreed that the Hospital does not have
an obligation to provide captions on any program broadcast over the public
airways or commercial cable television services, where such captions are not already
integrated into the program.
- Beginning no later than sixty (60) days from the Effective Date of this
Settlement Agreement, if the Hospital solicits a third party, parent company,
or affiliated health care provider to produce or provide video programs that
may be broadcast within the Hospital to Patients or Companions, the Hospital
will ensure that the program is captioned, unless, under the circumstances,
doing so would impose an undue burden. 28 C.F.R. § 36.303. Commercial videos
available to the general public shall not be subject to this requirement.
- Beginning no later than one hundred twenty (120) days from the Effective
Date of this Settlement Agreement, if the Hospital produces internally a
pre-recorded program for broadcast to Patients and Companions within the
Hospital, the Hospital will ensure that the program is made accessible to
Patients and Companions, whether by captioning such program or by providing a
transcript or sign language interpreter whenever it is viewed by a Patient or
Companion. If the program is not captioned, the method of access delivery must
be tailored to the needs of the Patient or Companion. For instance, if the
person does not know sign language, the Hospital may provide effective
communication through a transcript. In most circumstances, captioning will be
regarded as providing effective communication with all deaf or hard-of-hearing
persons, regardless of the communication skills and history of such persons
(though repeated screenings may be necessary, if the deaf or hard-of-hearing
person cannot read English at the rate required to keep pace with the audible
portion of the program). If, however, the contents of a program are
sufficiently important to require precise communication of its contents, the Hospital
will take additional measures to ensure effective communication.
- Beginning no later than one hundred twenty (120) days from the Effective
Date of this Settlement Agreement, if the Hospital produces its own live
broadcasts for Patients and Companions, it will make the majority of such
programs accessible to Patients and Companions. Captioning is one way, but not
the only way, to accomplish this objective. The Hospital can also choose to
provide sign language interpreters (if the deaf or hard-of-hearing person uses
sign language), written scripts prepared in advance of the live broadcast, or
Hospital Personnel that assist in making the broadcast accessible. In order to
determine which programs should be captioned, the Hospital may prioritize and
consider such factors as the importance and length of the program, as well as
any significant difficulty or expense in captioning the program or displaying
the captions, given the location of its filming or viewing.
Miscellaneous Technology Provisions
- Client Education The Hospital shall ensure that each Patient
and Companion who is provided with portable access technology is appropriately
directed as to the proper use of such equipment.
- Acquisition of Additional Equipment In addition
to the equipment required above, the Hospital shall purchase and/or rent such
additional equipment as is reasonably needed to replace defective units as soon
as practicable. The Hospital shall also monitor developments in technology and
shall upgrade such equipment when and if it deems it reasonable and appropriate
to do so.
NOTICE
TO COMMUNITY
- Policy Statement Within ninety (90) days of
the Effective Date of this Settlement Agreement, the Hospital shall add the
following statement to the signs it has posted throughout the emergency room
and admitting areas notifying persons with difficulty hearing or speaking to
ask a staff member for help: Sign language and oral interpreters, TTY´s, assistive
listening devices, and/or other auxiliary aids and services are available free
of charge to Patients and Companions who need them for effective communication.
For assistance, please contact any Hospital personnel or the Program Office at
____________ (voice/TTY), room ____________.
International signs for accessibility, including the international symbols for
"interpreters" and "TTY´s," will be posted near the policy. This statement
also shall be placed in a prominent location on the Hospital´s website.
- Advertisements Within one
hundred twenty (120) days of the Effective Date of this Settlement Agreement,
the Hospital will take appropriate steps to publicize in the community the
Hospital's commitment to provide all of its services to Patients and
Companions. Such publicity shall be deemed satisfied by the purchase of
reasonable advertising space at least twice in newspapers of general
circulation serving the same community as is served by the Hospital, which
advertisements will include a statement that all appropriate auxiliary aids and
services, including qualified sign language interpreters, TTY's, and assistive
listening devices, will be provided free of charge upon request, and include
appropriate instructions regarding access to the Program Office at the
Hospital. Annually thereafter, the Hospital shall take reasonable steps to
publicize the existence of the Program to the deaf and hard-of-hearing
community.
- Patient Guide The Hospital will include in all
future printings of its Patient Guide (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
or who have speech impairments, we provide appropriate auxiliary aids and
services free of charge, such as: sign language and oral interpreters, TTY's,
note-takers, computer-assisted real time transcription services, 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 Program Office at
_________________ (voice or TTY), room __________." The Patient Guide
shall also include a description of the Hospital´s complaint resolution
mechanism. The Hospital shall provide all Patients or Companions who come into
contact with Hospital Personnel at the Emergency Department with a copy of this
Guide as soon as practicable after their arrival at the Emergency Department.
- Information
Made Available in ASL Within one
hundred twenty (120) days of the Effective Date of this Settlement Agreement,
the Hospital will make the following information available in American Sign
Language (ASL) using videotape, DVD, or CD-ROM format:
- the Patient´s Bill of Rights;
- health care directives;
- information regarding the Hospital´s policies and procedures governing free
sign language interpreter services, including the contents of the Hospital´s
feedback form concerning the effectiveness and timeliness of interpreters that
the Hospital provides; and
- complaint resolution procedures.
NOTICE
TO HOSPITAL PERSONNEL AND PHYSICIANS
- The
Hospital shall publish, in an appropriate form, a written policy statement
regarding the Hospital's policy for effective communication with Patients or
Companions for use by persons working at the Hospital. This policy statement
shall include, but is not limited to, language to the following effect:
If
you recognize or have any reason to believe that a patient, relative, close
friend or companion of a patient is deaf or hard-of-hearing, you must advise
the person that appropriate auxiliary aids and services, such as sign language
and oral interpreters, TTY´s, note takers, written materials, telephone handset
amplifiers, assistive listening devices and systems, telephones compatible with
hearing aids, televisions with captioning or closed caption decoders, and open
or closed captioning of most hospital programs, will be provided free of charge
if such aids or services are necessary to ensure effective communication. If
you are the responsible health care provider, you must ensure that such aids
and services are provided when appropriate. All other personnel should direct
that person to the appropriate Program Administrator at ____ and reachable at
______. This offer and advice must likewise be made in response to any overt
request for appropriate auxiliary aids or services.
The
Hospital will distribute this document within ninety (90) days of the Effective
Date of this Settlement Agreement to all Hospital Personnel and both employed
and affiliated physicians (physicians with practicing or admitting privileges),
and to all new Hospital Personnel (including newly employed or affiliated
physicians) upon their affiliation or employment with the Hospital. In
addition, this statement will also be distributed to all Hospital Personnel
(including all employed and affiliated physicians) on an annual basis.
TRAINING
- Training
of Program Administrators The Hospital will provide special mandatory
training for the Program Administrator(s) within one hundred twenty (120) days
of designation as provided in paragraph 28 of this Settlement Agreement. Such
training will be sufficient in duration and content to train the Program
Administrators in:
- the
health care needs of the deaf and hard-of-hearing;
- the
various degrees of hearing impairment, language, and cultural diversity in the
deaf community;
- identification
of communication needs of persons who are deaf;
- the
unique needs and problems encountered by late-deafened individuals;
- the
psychological implications of deafness and its relationship to interaction with
hearing health care professionals;
- recommended
and required charting procedures governing requests for auxiliary aids and
services;
- types
of auxiliary aids and services available in the community and Hospital;
- the
proper use and role of qualified sign language interpreters;
- making
and receiving calls through TTY´s and the relay service;
- the
Hospital´s complaint resolution procedure described in paragraph 40 of this
Settlement Agreement; and
- any
other applicable requirements of this Settlement Agreement.
- Training
of Emergency Department Personnel The Hospital will provide special
mandatory in-service training to Hospital Personnel who have Patient
responsibility and who work or volunteer in the emergency department. The
training will address the special needs of Patients and Companions and will
include the following objectives:
- to
promptly identify communication needs and preferences of deaf or
hard-of-hearing persons;
- to conduct the determination required by paragraph 30 of this
Settlement Agreement;
- to meet all of the documentation obligations set forth in this
Settlement Agreement;
- to secure qualified interpreter services as quickly as possible when
necessary; and
- to
use, when appropriate, flash cards, pictographs, and a video interpreting
service (in conjunction with any other available means of communication that
will augment the effectiveness of the communication).
Such
training must be provided no later than one hundred twenty (120) days after the
Effective Date of this Settlement Agreement and will be conducted annually
thereafter.
- Training
of Physicians The Hospital will provide specialized mandatory in-service training
to all physicians (including affiliated physicians) who do not receive the training
discussed in paragraph 72. This training will include the following objectives:
- to
promptly identify communication needs and preferences of Patients and
Companions;
- to
secure qualified interpreter services as quickly as possible when necessary;
and
- to
ensure that their staff members notify the Hospital and the Program
Administrators about Patients and Companions as soon as possible after
scheduling admissions, tests, surgeries, or other health care services at the
Hospital.
Such
training must be provided no later than one hundred eighty (180) days after the
Effective Date of this Settlement Agreement and will be conducted annually
thereafter.
- Training
of 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) 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;
- to
secure qualified interpreter services as quickly as possible when necessary;
and
- to facilitate appropriate interaction between Patients and other
patients, when appropriate (e.g., group therapy sessions and other times
when interaction with persons other than Hospital personnel is encouraged).
Such
training must be provided no later than one hundred eighty (180) days after the
Effective Date of this Settlement Agreement and will be conducted annually
thereafter.
- Training
of Telephone Operators All Hospital Personnel who receive incoming
telephone calls from the public will receive special instructions on using
TTY´s or relay services to make, receive and transfer telephone calls, and will
receive training generally on the existence in the Hospital of Program Administrators,
as detailed in paragraph 28 of this Settlement Agreement, and the complaint
resolution process, as described in paragraph 40 of this Settlement Agreement.
Such training must be provided no later than ninety (90) days after the
Effective Date of this Settlement Agreement and will be conducted annually
thereafter.
- Training
of Other Key Personnel The Hospital will also provide special ADA training
to the following Hospital Personnel not otherwise trained as provided above:
all clinical directors and nursing supervisors; personnel who staff the
admissions desk (or its equivalent for in-patient registration), a central
registry desk (or its equivalent for out-patient registration), and/or a
general information desk; all triage nurses and other triage professionals; and
heads of each department in which communication with Patients and Companions
occurs. Hospital Personnel responsible for billing and insurance issues who
routinely interact with Patients and Companions will receive special training
on the availability of auxiliary aids and services and the existence in the
Hospital of Program Administrators, as described in paragraph 28 of this
Settlement Agreement. Such training must be provided no later than 120 days
after the Effective Date of this Settlement Agreement and will be conducted
annually thereafter.
- Training
of New Employees Commencing one hundred twenty (120) days after the
Effective Date of this Settlement Agreement, the Hospital will provide the
training specified above to new Hospital 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.
- Training
Attendance Sheets The Hospital will maintain, for the duration of this
agreement, attendance sheets of all training conducted pursuant to paragraphs
71-77 of this Settlement Agreement, which will include the names and respective
job titles of the attendees, as well as the date, time, and location of the
training session. Although all of the training described in paragraphs 71-77
should be conducted live whenever possible, the Hospital may satisfy the
training requirement for individuals who are unable to attend live training
sessions by showing a video of the original training.
REPORTING, MONITORING,
AND VIOLATIONS
- Patient
Feedback The Hospital will develop a form to collect feedback from
Patients and Companions regarding the provision of auxiliary aids and services.
Such a form will assess Patient and Companion satisfaction with the quality of
the auxiliary aids and services provided, the effectiveness of communication
with Hospital Personnel, and response times.
- Compliance
Reports Beginning three months after the Effective Date of this Settlement
Agreement and every six months thereafter for the entire duration of the
Settlement Agreement, the Hospital will provide a written report ("Compliance
Report") to the U.S. Attorney´s Office regarding the status of its compliance
with this Settlement Agreement. The Compliance Report will include data
relevant to the Settlement Agreement, including, but not limited to:
- the
number of requests for qualified sign language interpreters received by the
Hospital from Patients and Companions;
- the
number of times a qualified sign language interpreter was provided by the
Hospital;
- the
number of times the Hospital denied a request for a qualified sign language interpreter
and the reason for each denial;
- the number of requests for other auxiliary aids or services received by
the Hospital from Patients or Companions;
- The number of times auxiliary aids or services were provided by the
Hospital, a description of the aids or services provided, and the amount of
time it took for the Hospital to provide the auxiliary aids and services;
- the number of times the Hospital denied any requests for other
auxiliary aids or services, a description of the aid or service that was
denied, and the reason for each denial;
- the
number of times a request for a qualified sign language interpreter was
accepted by the Hospital, but the interpreter failed to appear, and the reasons
for the failure;
- the
date and the time a qualified sign language interpreter was requested by a
Patient or Companion, the date and time the interpreter arrived, and the date
and time the interpreter actually began interpreting for such Patient or
Companion;
- an
explanation of the reasons for the delays in obtaining qualified sign language
interpreters in those cases where the response times failed to comply with the
time frames described in paragraphs 46 and 47 of this Settlement Agreement; and
- the number of redeterminations performed pursuant to paragraph 32 and
the results of these redeterminations;
- the
number of complaints received by the Hospital from Patients and Companions
regarding auxiliary aids and services and/or effective communication, and the
resolution of such complaints including any supporting documents.
- documentation of compliance with all of the training and technology
provisions of this Settlement Agreement;
- copies
of all feedback forms referenced in paragraph 50; and
- copies of all logs referenced in paragraph 38.
The
Hospital will maintain appropriate records to document the information
contained in the Compliance Reports and will make them available, upon request,
to the U.S. Attorney´s Office, as allowed by state and federal law.
- Complaints
During the Term of this Settlement Agreement, the Hospital will notify the
U.S. Attorney´s Office if any person commences a lawsuit, complaint, charge, or
grievance alleging that the Hospital failed to provide auxiliary aids and
services to Patients or Companions or otherwise failed to provide effective
communication with such Patients or Companions. Such notification must be
provided in writing via certified mail within twenty (20) days of the date the
Hospital 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 the Hospital relevant to the allegation. The
Hospital will reference this provision of the Settlement Agreement in the
notification to the U.S. Attorney´s Office.
COMPENSATORY RELIEF FOR COMPLAINANT AND RELEASE
- Within
ten (10) days of the Effective Date of this Settlement Agreement, the Hospital
will pay $5.000.00 in compensation to the complainant. The Hospital will send
a check made out to the complainant by certified mail, return receipt
requested, or via hand delivery, to the United States Attorney´s Office. This
check is compensation pursuant to 42 U.S.C. § 12188(b)(2)(B), for the effects of
the alleged discrimination suffered as described in paragraph 6. The check
shall be mailed to: Office of the United States Attorney, 53 Pleasant Street,
Fourth Floor, Concord, NH 03301, Attn: AUSA John Farley.
- Within
five (5) days of receipt of the check referenced in Paragraph 82 of this
Settlement Agreement, the United States will deliver to counsel for the
Hospital a release signed by the complainant.
ENFORCEMENT AND
MISCELLANEOUS
- Duration of the Settlement Agreement This Settlement Agreement will
be in effect for three (3) years from the date hereof, after which time the
Settlement Agreement shall end; provided, however, the Settlement Agreement
shall terminate in two years from the Effective Date if both of the following
conditions are met: (1) the Hospital is in compliance as of the second
anniversary of the Effective Date of this Settlement Agreement, with all
provisions and obligations set forth in the Settlement Agreement; and (2) in
the event that there has been an allegation of a violation of any of the
aforesaid paragraphs, there has been an investigation and response by the
Hospital that the United States considers to be effective, timely and adequate.
- Changing
Circumstances During the term in which this Settlement Agreement will be
in effect, there may be a change in circumstances such as, for example and
without limitation, an increased or decreased availability of qualified sign
language or oral interpreters or developments in technology to assist or
improve communications with persons who are deaf or hard-of-hearing. If the
Hospital determines that such changes create opportunities for communicating
with Patients and Companions more efficiently or effectively than is required
under this Settlement Agreement, or create difficulties not presently
contemplated in the provision of appropriate auxiliary aids and services, it
may propose changes to this Settlement Agreement by presenting written
proposals to the United States Attorney´s Office. Such changes will then be
made to the Settlement Agreement if the United States, upon review, grants its
approval, which approval will not be unreasonably withheld or delayed.
- Enforcement
The Attorney General is authorized, pursuant to section 308(b)(1)(B) of the
ADA, to bring a civil action under Title III, enforcing the ADA in any
situation where a pattern or practice of discrimination is believed to exist or
a matter of general public importance is raised. In consideration of the terms
of this agreement as set forth above, the Attorney General agrees to refrain
from undertaking further investigation or from filing a civil suit under Title
III in this matter, except as provided in paragraphs 87 and 88, below. Nothing
contained in this Settlement Agreement is intended or shall be construed as a
waiver by the United States of any right to institute proceedings against the
Hospital 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.
- Review
of Compliance The United States may review compliance with this Settlement
Agreement at any time and can enforce this Settlement 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 Settlement Agreement or any portion of it has been violated,
it will raise its concern(s) in writing with the Hospital and the parties will
attempt to resolve the concern(s) in good faith. The United States will allow
the Hospital thirty (30) days from the date it notifies the Hospital of any
breach of this Settlement Agreement to cure said breach, prior to instituting
any court action to enforce the ADA and the terms of the Settlement Agreement.
- Violations If the Hospital violates this Settlement Agreement, the
United States shall have all such remedies as are allowed under the ADA. The
parties agree that in any subsequent legal proceedings the court may treat any
violation of this Settlement Agreement as a first violation of the ADA for the
purpose of calculating civil penalties, if any.
- Entire
Agreement This Settlement Agreement constitutes 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 Settlement Agreement is 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.
- Binding
This Settlement Agreement is final and binding on the parties, including all
principals, agents, executors, administrators, representatives, successors in
interest, beneficiaries, assigns, heirs and legal representatives thereof.
Each party has a duty to so inform any such successor in interest.
- Non-Waiver
Failure by any party to seek enforcement of this Settlement Agreement pursuant
to its terms with respect to any instance or provision shall not be construed
as a waiver to such enforcement with regard to other instances or provisions.
- Disclaimer of Liability
Nothing in this Settlement Agreement shall be construed as an admission by the
Hospital of any liability or fault, that it engaged in any wrongful or illegal
activity, that any of the United States´ allegations are true, or that any
person suffered any injury as a result of the events as alleged by the United States.
This Agreement shall not be offered or received in evidence in any action or
proceeding in any court or other tribunal as an admission or concession of
liability or wrongdoing of any nature on the part of the Hospital except in an
action challenging the Hospital´s compliance with this Agreement.
- Execution of Agreement The
undersigned counsel represent that they have been fully authorized by their
clients to enter into and execute this Settlement Agreement under the terms
and conditions contained herein.
- Availability
of Settlement Agreement This Settlement Agreement may be made available to
any person.
- Severability
In the event that a Court shall determine that any provision of this Settlement
Agreement is unenforceable, such provision shall be severed from this
Settlement Agreement and all other provisions shall remain valid and
enforceable, provided, however, that if the severance of any such provision
shall materially alter the rights or obligations of the Parties hereunder, they
shall, 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.