SETTLEMENT AGREEMENT

BETWEEN

THE UNITED STATES OF AMERICA

BETHESDA MEMORIAL HOSPITAL,

BOYNTON BEACH, FLORIDA

D.J. No. 202-18-178





I. BACKGROUND AND PARTIES

A.     The parties to this Settlement Agreement (“Agreement”) are the United States of America and Bethesda Memorial Hospital (“Hospital”), located in Boynton Beach, Florida.

B.     This matter was initiated by a complaint filed with the United States Department of Justice (the “Department”) against Bethesda Memorial Hospital, D.J. No. 202-18-178, alleging violations of title III of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12181-12189, and its implementing regulation, 28 C.F.R. Part 36.

C.     The Department is authorized to investigate alleged violations of title III of the ADA, and to bring a civil action in federal court if the Department is unable to secure voluntary compliance in any case that involves a pattern or practice of discrimination or that raises issues of general public importance, 42 U.S.C. § 12188(b).

D.     Bethesda Memorial Hospital is a place of public accommodation covered by title III of the ADA. 42 U.S.C. § 12181(7)(F); 28 C.F.R. § 36.104.

E.     The ADA prohibits public accommodations, including hospitals, from discriminating against an individual on the basis of disability in the full and equal enjoyment of its goods and services. 42 U.S.C. § 12182(a). Ensuring that hospitals do not discriminate against persons who are deaf or hard of hearing is an issue of general public importance.

F.     The complaint alleges Bethesda Memorial Hospital violated title III of the ADA and its implementing regulation by discriminating against persons who are deaf and those persons related to or associated with them. Specifically, the information provided to the Department suggest, inter alia, that the Hospital failed to timely provide a sign language interpreter as requested, and where necessary for effective communication, for Marlene and Gerald Posner, who are deaf, when she was hospitalized for twenty (20) days in November 2002. She was diagnosed at the Hospital with a streptococcal pneumonia. The complaint states that despite repeated requests for interpreting services, she met with doctors, specialists, and nurses many times without a qualified interpreter. The complaint further alleges that the Hospital performed certain procedures, without an interpreter and that by failing to secure timely qualified interpreting services, the Hospital improperly imposed communication responsibilities on Mr. Posner to facilitate communication between the Hospital and his wife.

G.     In consideration of the terms of this Agreement, and in particular the provisions in Section III-IV, the Attorney General of the United States agrees to refrain from undertaking further investigation or from filing a civil suit in this action, except as provided in Section IV(C). In order to secure compliance by voluntary means and avoid the costs of litigation, the parties hereby agree to resolve this matter as set forth below.

II. DEFINITIONS

A.     The term “appropriate auxiliary aids and services” includes, but is not limited to, qualified sign language or oral interpreters, note takers, computer-assisted real time transcription services, written materials, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, TTY’s, large print materials, acquisition or modification of equipment or devices, and other methods of delivering effective communication.

B.     The term “Companion” means a person who is deaf or hard of hearing and is either (a) a person whom the patient indicates should communicate with hospital personnel about the patient, participate in any treatment decision, play a role in communicating the patient’s needs, condition, history or symptoms to hospital personnel, or help the patient act on the information, advice or instructions provided by hospital personnel or such other person with whom the hospital personnel would ordinarily and regularly communicate with concerning the patient’s medical condition, including, but not limited to, the patient’s next of kin or health care surrogate.

C.     The term “Hospital Personnel” means all employees and independent contractors with contracts to work on a substantially full-time basis for Bethesda Memorial Hospital (or on a part-time basis exclusively for Bethesda Memorial Hospital), including, without limitation, nurses, physicians, social workers, technicians, admitting personnel, billing staff, security staff and therapists who have or are likely to have direct contact with Patients or Companions, as defined herein.

D.     The term “qualified sign language interpreter,” “oral interpreter,” or “interpreter” means an interpreter who is able to interpret competently, accurately and impartially, both receptively and expressively, using any specialized terminology necessary for effective communication in a Hospital setting to a “Patient” or a “Companion” who is deaf or hard of hearing. Someone who has only a rudimentary familiarity with sign language or finger spelling is not a “qualified sign language interpreter” under this Agreement. Likewise, someone who is fluent in sign language but who does not possess the ability to process spoken communication into the proper signs or to observe someone signing and change their signed or finger spelled communication into spoken words is not a qualified sign language interpreter.

E.     The term “Patient” means a person who is deaf or hard of hearing and is seeking and/or receiving medical services at Bethesda Memorial Hospital.

F.     The term “TTY’s” means devices that are used with a telephone to communicate with persons who are deaf or hard of hearing by typing and reading communications.

III. TERMS OF AGREEMENT

A.     Design and Implementation of Program. Within ninety (90) days of the effective date of this Agreement, Bethesda Memorial Hospital will modify or enhance its program (Program) such that it will effectively implement the provisions of this Agreement, including without limitation:

1.     Developing, coordinating and overseeing the development of specific procedures to fully implement this Agreement;

2.     Scheduling, announcing and promoting all training required by this Agreement;

3.     Drafting, maintaining and providing all reports required by this Agreement; and

4.     Modifying medical and intake forms as necessary to ensure that once a Patient or Companion enters the Hospital, the Hospital makes the communication assessment required in this Agreement. At a minimum, the Hospital agrees to use a form similar to its “Request for Services by Patients and Companions Who are Deaf or Hard of Hearing” (attached as Exhibit 1);

5.     Designating an individual or office at the Hospital that will maintain full information about access to and the operations of the Program (“Information Office”). The Information Office will maintain a combination voice/TTY telephone line or a dedicated TTY telephone line, will publicize its purpose and telephone number broadly within the Hospital and to the public, will respond to telephone inquiries during normal business hours and will maintain a recording system for inquiries received after normal business hours; and

6.     Designating one or more individuals who will be available twenty-four (24) hours a day, seven (7) days a week, to answer questions and provide assistance and authorization for immediate access to and proper use of the appropriate auxiliary aids and services, and qualified sign language and oral interpreters available under the Program (as described below). Such Coordinators will know where the appropriate auxiliary aids are stored and how to operate them and will be responsible for their maintenance, repair, replacement and distribution. The Hospital will circulate and post broadly within the Hospital, the names, telephone numbers, functions and office locations of such Coordinators, including a TTY telephone number that may be called by Patients and Companions in order to obtain the assistance of such Coordinators.

B.     Provision of Appropriate Auxiliary Aids and Services. Immediately as of the effective date of this Agreement, the Hospital will continue to provide to Patients and Companions appropriate auxiliary aids and services that may be necessary for effective communication after making the assessment described below.

C.     Communication Assessment. The Hospital will consult with individual Patients who are deaf or hard of hearing and Companions whenever possible to determine what type of auxiliary aid or interpretive service is necessary to ensure effective communication. While consultation is strongly encouraged, the ultimate decision as to what measure to take to ensure effective communication rests in the hands of the Hospital, provided that the method chosen results in effective communication.

1.     General Assessment Criteria. The determination of which appropriate auxiliary aids and services are necessary, and the timing, duration and frequency with which they will be provided, will be made by the Hospital Personnel who are otherwise primarily responsible for coordinating and/or providing patient care services, in consultation with the Patient or Companion where possible. The assessment will take into account all relevant facts and circumstances, including without limitation the following:

a.     The nature, length and importance of the communication at issue;

b.     The individual’s communication skills and knowledge;

c.     The Patient’s health status or changes thereto;

d.     The Patient’s and/or Companion’s request for or statement of need for an interpreter, including the Patient’s or Companion’s request for the provision of interpreting services;

e.     The reasonably foreseeable health care activities of the Patient (e.g., group therapy sessions, medical tests or procedures, rehabilitation services, meetings with health care professionals or social workers, or discussions concerning billing, insurance, self-care, prognoses, diagnoses, history and discharge); and

f.     The availability at the required times, day or night, of appropriate auxiliary aids and services.

2.     Time for Assessment. The determination of which appropriate auxiliary aids and services are necessary, and the timing, duration and frequency with which they will be provided, must be made at the time an appointment is scheduled or on the arrival of the Patient or Companion at the Hospital, whichever is earlier. Hospital Personnel will perform and document in the Patient’s medical chart a communication assessment as part of each initial inpatient assessment. The Hospital shall reassess which appropriate auxiliary aids and services are necessary, in consultation with the Patient or Companion where possible, in the event that communication is not effective.

D.     Successive Patient Visits. If a Patient or a Companion has an ongoing relationship with the Hospital, with respect to each of these subsequent visits, the Hospital will continue to provide the appropriate auxiliary aids or services to the Patient or Companion without requiring a request for the appropriate auxiliary aids or services by the Patient or Companion for each visit. Hospital personnel will keep appropriate records that reflect the ongoing provision of auxiliary aids and services to Patients and Companions, such as notations in Patients’ medical charts.

E.     Medical Equipment. Nothing in this Agreement will require the use of an electronic device or equipment constituting an appropriate auxiliary aid, when or where its use may interfere with medical or monitoring equipment or may otherwise constitute a threat to a Patient’s medical condition.

F.     Determination Not to Provide Auxiliary Aid or Service. If, after conducting a communication assessment, the Hospital determines that the circumstances do not warrant provision of a requested auxiliary aid or service, Hospital Personnel shall so advise the person requesting the auxiliary aid or service and shall document the date and time of denial, the name and title of the Hospital Personnel who made the determination, and the basis for the determination. A copy of this document shall be provided to the Patient (and Companion, if applicable), maintained with the log described in Section III.G, below, and placed in the patient’s medical chart.

G.     Maintenance of Log. The Hospital will maintain a log of each request for an auxiliary aid and service, the time and date the request is made, the Patient’s (and Companion’s, where applicable) name, the time and date of the scheduled appointment (if a scheduled appointment was made), the time and date the auxiliary aid and service was provided, or a statement that the auxiliary aid and service was not provided. Such logs, and the documentation described in Section III.F, will be maintained by the Administrator(s) or his/her designee.

H.     Complaint Resolution. The Hospital will continue to maintain an effective complaint resolution mechanism regarding use of the Program by Patients and Companions and will maintain records of all complaints, whether oral or written, made to the Hospital and actions taken with respect thereto. The Hospital will notify Patients and Companions of the Hospital’s complaint resolution mechanism, to whom complaints should be made, and the right to receive a written response to the complaint if requested. Copies of all complaints or notes reflecting oral complaints and the responses thereto will be maintained by Administration or its designated records custodian for a period of twelve (12) months. Upon request, the Hospital will provide the Patient and Companion a written response to the complaint no later than five (5) business days after investigation.

I.     Prohibition of Surcharges. All appropriate auxiliary aids and services required by this Agreement will be provided free of charge to the Patient or Companion who is deaf or hard of hearing.

J.     Individual Notice in Absence of Request. If a Patient or a Companion who is deaf or hard of hearing does not request appropriate auxiliary aids or services, but Hospital Personnel have reason to believe such person would benefit from appropriate auxiliary aids or services for effective communication, the Hospital will specifically inform the person that appropriate auxiliary aids and services are available free of charge.

K.     Communication with Inpatients and Companions. The Hospital will take appropriate steps to ensure all Hospital Personnel having contact with a Patient or Companion who is deaf or hard of hearing are made aware of such person’s disability so that effective communication with such person will be achieved. In addition, the Hospital will take appropriate steps to ensure that all Hospital Personnel having contact with a Patient or Companion who is deaf or hard of hearing are aware of the Hospital’s Program.

L.     Sign Language and Oral Interpreters

1.     Upon making a determination that the effective means of communication is a sign language or oral interpreter, the Hospital will provide such qualified sign language or oral 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.

2.     The determination of when such interpreters will be provided to Patients or Companions will be made as set forth in Section III.C (Assessment) above. Examples of circumstances when it may be necessary to provide interpreters include, but are not limited to, the following:

a.     Determination of a patient’s medical history or description of ailment or injury;

b.     Provision of patients’ rights, informed consent, or permission for treatment;

c.     Diagnosis or prognosis of ailments or injuries;

d.     Explanation of procedures, tests, treatment, treatment options or surgery;

e.     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);

f.     Explanation regarding follow-up treatments, therapies, test results or recovery;

g.     Blood donations or apheresis (removal of blood components);

h.     Discharge planning and discharge instructions;

i.     Provision of mental health evaluations, group and individual therapy, counseling and other therapeutic activities, including grief counseling and crisis intervention;

j.     Explanation of complex billing or insurance issues that may arise;

k.     Educational presentations, such as classes concerning birthing, nutrition, CPR and weight management;

m.     Explanation of living wills or powers of attorney (or their availability); and

n.     Any other circumstance in which a qualified sign language interpreter is necessary to ensure a Patient’s rights provided by law.

The foregoing list does not imply an interpreter must always be provided in these circumstances. Nor does it suggest there are not other circumstances when it may be appropriate to provide interpreters for effective communication. Notwithstanding any circumstance in which an interpreter or other auxiliary aid may be required for effective communication with a Patient or Companion, medical care and treatment to a patient should not be delayed where an emergency medical condition exists or where failure to provide care may lead to an emergency medical condition.

3.     Chosen Method for Obtaining Interpreters. Immediately as of the effective date of this Agreement, the Hospital will enter and maintain at least one contract with an interpreter service provider (“the IS Provider”) as the primary method for providing qualified sign language and oral interpreters at the Hospital.

4.     Provision of Interpreters in a Timely Manner.

a)     Non-scheduled incidents. For “non-scheduled incidents,” the Hospital will provide a contract interpreter within: (a) thirty (30) minutes when the interpreter is available on-site, or (b) one hundred and twenty (120) minutes when the interpreter is off-site.

b)     Scheduled incidents. For “scheduled incidents,” the Hospital will make an interpreter available at the time of the scheduled appointment. “Scheduled incidents” are situations in which there are two (2) or more hours (or four (4) or more hours if a request is made between the hours of 8 p.m. and 8 a.m. or a weekend or holiday) between the time when a Patient or a Companion makes a request for an interpreter and when the services of the interpreter are required.

5.     Force Majeure Events. The foregoing response times are subject to “force majeure” events B i.e., any response time that is delayed because of a force majeure event is excluded from the determination whether the prescribed response criteria have been met. Force majeure events are events outside the reasonable control of the Hospital, the IS Provider or the interpreter called to respond, such as weather problems and other Acts of God, unanticipated illness or injury of the interpreter while en route to the Hospital and unanticipated transportation problems (including, without limitation, mechanical failure of the interpreter’s automobile, automobile accidents and roadway obstructions other than routine traffic or congestion).

6.     Modification of Performance Standards. In the event that the response time performance standards set forth in Section III.L.4, above, cannot be maintained despite the Hospital’s good faith efforts, the Hospital is entitled to request modifications of such performance standards as may be reasonable based upon factual evidence and documentation. The Department will consider any such request reasonably and in good faith, and any such modification that is agreed to will be deemed an amendment to this Agreement.

7.     Compliance with Applicable Laws. The Department’s consent to modification or amendment of this Agreement does not affect the Hospital’s independent responsibilities under any applicable federal, state or local laws or regulations.

8.     Staff Interpreters. The Hospital may hire and use staff interpreters to satisfy its obligations under this Agreement. Staff interpreters must, however, 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 Agreement. The Hospital may assign other duties to staff interpreters, but conflicts caused by the staff interpreters’ performance of those other duties will not excuse the Hospital’s obligations under this Agreement to provide sign language interpreting for patients or companions who require such services.

9.     Notice to Patients and Companions Who Are Deaf or Hard of Hearing. As soon as Hospital Personnel have determined that an interpreter is necessary for effective communication with a Patient or a Companion, the Hospital will inform such person (or a family member or friend, if such person is unavailable) of the current status of efforts being taken to secure a qualified interpreter on his or her behalf. Additional updates are to be provided thereafter as necessary until an interpreter is secured. Notification of efforts to secure a qualified interpreter does not lessen the Hospital’s obligation to provide qualified interpreters in a timely manner as required by this Agreement.

10.     Other Means of Communication. Between the time that an interpreter is requested and when an interpreter is made available, Hospital Personnel will continue to try to communicate with the Patient or Companion for such purposes and to the same extent as they would have communicated with the person but for the disability, using all available methods of communication. This provision in no way lessens the Hospital’s obligation to provide qualified interpreters in a timely manner as required by this Agreement.

11.     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 may never require or coerce a family member, companion, case manager, advocate, or friend of a Patient or Companion to interpret or facilitate communications between Hospital Personnel and such Patient or Companion. However, such person may be used to interpret or facilitate communication only if the Patient or Companion who is deaf or hard of hearing does not object, if such person wishes to provide such assistance and if such use is necessary or appropriate under the circumstances, giving appropriate consideration to any privacy issues that may arise. This provision in no way lessens the Hospital’s obligation to provide appropriate auxiliary aids and services as required under this Agreement.

M.     Notice to Community.

1.     Policy Statement. Within thirty (30) days of the effective date of this Agreement, the Hospital will post and maintain signs of conspicuous size and print at all Hospital admitting stations, the emergency department, and wherever a Patient’s Bill of Rights is required by law to be posted. Such signs will provide, in essential part:

Sign language and oral interpreters, TTY’s, and other auxiliary aids and services are available free of charge to Patients and Companions who are deaf or hard of hearing. For assistance, please contact any Hospital Personnel or the Information Office at ____________ (voice/TTY), room ________.

These signs will include the international symbols for “interpreters” and “TTY’s.”

2.     Patient Handbook. The Hospital will include in all future printing of its Patient Handbook (or equivalent) and all similar publications a statement to the following effect:

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

Please ask your nurse or other Hospital Personnel for assistance, or contact the Information Office at ____________ (voice or TTY), room ____.

The Hospital will also include in the handbook a description of the Hospital’s complaint resolution mechanism.

3.     Website. The Hospital will include in its website a statement to the effect of the statement set forth in Section III.M.2, above.

N.     Notice to Hospital Personnel and Staff Physicians. The Hospital will publish, in an appropriate form, a written policy statement regarding the Hospital’s policy for effective communication with persons who are deaf or hard of hearing. The policy statement should include, but is not limited to, language to the following effect:

If you recognize or have any reason to believe that a patient, relative, or a close friend or companion of a patient is deaf or hard of hearing, you must advise the person that appropriate auxiliary aids and services such as sign language and oral interpreters, TTY’s, note takers, written materials, telephone handset amplifiers, assistive listening devices and systems, telephones compatible with hearing aids, closed caption decoders, and open and closed captioning of most Hospital programs will be provided free of charge. If you are the responsible health care provider, you must ensure that such aids and services are provided when appropriate. All other personnel should direct that person to the [responsible] Administrator, located at _____, and available at telephone extension ______. This offer and advice must likewise be made in response to any overt request for appropriate auxiliary aids or services.

The Hospital will distribute its Policy statement regarding effective communications in a manner consistent with its normal process of policy distribution. Any such document shall also be made available in Personnel and the Medical Staff office, equally accessible to all employees and physicians.

O.     Training of Hospital Personnel.

1.     Emergency Department Personnel. Within sixty (60) days of the effective date of this Agreement, and annually thereafter, the Hospital will provide mandatory in-service training[1] to Hospital Personnel with patient responsibility who work or volunteer in the Emergency Department to address the special needs of deaf and hard of hearing Patients and Companions utilizing that department, and to ensure compliance with this Agreement. This training will include the following objectives: to promptly identify communication needs and preferences of Patients and Companions who are deaf or hard of hearing; to secure qualified interpreter services as quickly as possible when necessary. Such training must be provided prior to the date on which the Hospital is scheduled to implement the IS Plan and annually thereafter.

2.     Other Key Personnel. Within sixty (60) days of the effective date of this Agreement, and annually thereafter, the Hospital will provide mandatory in-service training on all the terms of this Agreement to key personnel not otherwise trained as provided above, including: all clinical directors and nursing supervisors; all senior-level administrators; personnel who staff the Admission desk (or its equivalent for in-patient registration), the Central Registry desk (or its equivalent for out-patient registration), the General Information desk; all triage nurses and other triage professionals; and heads of each department in which communication with Patients occurs. Personnel responsible for billing and insurance issues who routinely interact with Patients and Companions will receive training on the availability of auxiliary aids and services and the existence in the Hospital of an Information Office and Administrator(s).

3.     Operators. All Hospital Personnel who receive incoming telephone calls from the public will receive special instructions on using TTY’s to make and receive telephone calls and will receive training generally on the existence in the Hospital of an Information Office and Administrator(s) and complaint resolution processes.

4.     General Provisions. The Hospital will provide the training specified above to new Hospital Personnel (including without limitation Emergency Department, Psychiatric and Social Work personnel) within thirty (30) days after the commencement of their services for the Hospital. Such training must be comparable to training provided to specific departments as necessary. A screening of a video of the original training will suffice to meet this obligation. The Hospital shall maintain attendance sheets of all training conducted pursuant to this Section of this Agreement, which shall include the names and respective job titles of the attendees, as well as the date, time and location of the training session.

P.     Miscellaneous Injunctive Relief.

1.     Discrimination by Association. The Hospital will not deny equal services, accommodations, or other opportunities to any individual because of the known relationship of the person with someone who is deaf or hard of hearing.

2.     Retaliation and Coercion. The Hospital will not retaliate against or coerce in any way any person who is trying to exercise his or her rights under this Agreement or the ADA.

Q.     Specific Relief to Complainants.

1.     Within thirty (30) days of the effective date of this Agreement, Bethesda Memorial Hospital agrees to send a copy of this Agreement and Exhibits 2 and 3, hereto attached, to Marlene and Gerald Posner by certified mail, return receipt requested, or by Federal Express. Exhibit 2, notifying Marlene and Gerald Posner that an Agreement has been reached with the United States, includes an offer by Bethesda Memorial Hospital to pay them EIGHT THOUSAND FIVE HUNDRED DOLLARS ($8,500.00) as compensatory damages, and explains that, in order to accept the relief offered, Marlene and Gerald Posner must return an executed “Release of All Claims,” Exhibit 3, to Bethesda Memorial Hospital within thirty (30) days of receipt of said documents. Bethesda Memorial Hospital will send the undersigned counsel for the United States a copy of Exhibits 2 and 3 when they are sent to the Posners.

2.     If Marlene and Gerald Posner accept Bethesda Memorial Hospital’s offer of relief as set out in Exhibits 2 and 3, Bethesda Memorial Hospital will, within thirty (30) days of receipt of the signed “Release of All Claims,” send the Posners, by certified mail, return receipt requested, or by Federal Express, a check for EIGHT THOUSAND FIVE HUNDRED DOLLARS ($8,500.00). Bethesda Memorial Hospital will provide to the United States, a copy of the check and transmittal letter sent to the Posners.

R.     Civil Penalties. Bethesda Memorial Hospital agrees to pay to the United States the sum of FOUR THOUSAND DOLLARS ($4,000.00 in civil penalties pursuant to 42 U.S.C. § 12188(b)(2)(C)(ii), by delivering a check in that amount made payable to the United States Treasury. The check of FOUR THOUSAND DOLLARS ($4,000.00) shall be provided within thirty (30) days to the United States, of the effective date of this Agreement.

IV. ENFORCEMENT AND IMPLEMENTATION

A.     Compliance Reports. Twelve (12) months after the effective date of this Agreement, and annually thereafter, for two (2) consecutive years, the Hospital must provide a written report (“Report”) to the Department of Justice regarding its efforts to comply with this Agreement. Each Report must state the identity of individuals admitted to the Hospital or their Companion(s) who are deaf or hard of hearing and the auxiliary aid(s) or service(s) provided to the individual(s). In the event that the Hospital does not provide the requested auxiliary aid(s) or service(s) to a Patient or Companion who is deaf or hard of hearing, the Report must state (1) the procedure followed by the Hospital in determining whether to provide auxiliary aids and services to the Patient or Companion and (2) the Hospital’s reasons for not providing auxiliary aids and services to the Patient or Companion. The Hospital will make the most recent three Reports available for public inspection in the Information Office. The Hospital must maintain appropriate records, including, but not limited to, those described in this Agreement, to document the information contained in the Report.

B.     Complaints. During the term of this Agreement, the Hospital will notify the Department if any individual brings any lawsuit, complaint, charge, or grievance alleging that the Hospital failed to provide auxiliary aids and services to Patients or Companions. Such notification must be provided in writing via certified mail within fifteen (15) days of when the Hospital has received notice of the allegation and will include at a minimum, the nature of the allegation, the name of the individual bringing the allegation, and any documentation possessed by the Hospital relevant to the allegation.

C.     Violation of Agreement. In the event that the Department believes the Hospital has violated any provision of this Agreement, the Department will give written notice (including reasonable particulars) of such violation to the Hospital’s Chief Executive Officer and the Hospital must then respond to such written notice and/or cure such non-compliance as soon as practicable, but no later than thirty (30) days thereafter. Any event of non-compliance that prevents or restricts a Patient from receiving urgent health care services must be cured without delay. The Parties will negotiate in good faith in an attempt to resolve any dispute relating thereto prior to instituting any court action.

D.     Term of the Agreement. The Agreement shall become effective as of the date of the last signature below and shall remain in effect for three (3) years from that date.

E.     Changing Circumstances. During the three (3) years in which this 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 or Companions more efficiently or effectively than is required under this Agreement, or create difficulties not presently contemplated in the provision of appropriate auxiliary aids and services, it may propose changes to this Agreement by presenting written notice to the Department of Justice. The Department will consider any such request reasonably and in good faith, and any such modification that is agreed to will be jointly executed a written amendment to this Agreement.

F.     Binding Effect. This Agreement is final and binding on the Parties, including all principals, agents, executors, administrators, representatives, employees, successors in interest, beneficiaries, assigns, heirs, and legal representatives thereof. Each Party has a duty to so inform any such successor in interest and to timely notify all parties of all such successors in writing. In the event the Hospital seeks to transfer or assign all or part of its interests in any facility covered by this Agreement, and the successor(s) or assign(s) intend(s) on carrying on the same or similar use of the facility, the Hospital, as a condition of sale, will obtain the written accession of the successor(s) or assign(s) to any obligations remaining under this Agreement for the remaining term of this Agreement.

G.     Non-waiver. Failure by the United States to seek enforcement of this Agreement pursuant to its terms with respect to any instance or provision will not be construed as a waiver to such enforcement with regard to other instances or provisions.

H.     Signatory. A signatory to this document in a representative capacity for Bethesda Memorial Hospital represents that he or she is authorized to bind that party to this Agreement.

For Bethesda Memorial Hospital:

For the United States of America:




By:__________________________





WAN J. KIM
Assistant Attorney General for Civil Rights


By:______________________________
JOHN L. WODATCH, Chief
PHILIP L. BREEN, Special Legal Counsel
RENEE M. WOHLENHAUS, Deputy Chief
ROBERT J. MATHER, Trial Attorney
Disability Rights Section - NYA
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530



Date:                        Date:           5/05/06          



[1] For purposes of this Agreement, “in-service training” includes, 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.





Exhibit 1
Bethesda Memorial Hospital
Request for Services by Patients and Companions Who Are Deaf or Hard of Hearing

Bethesda Memorial Hospital is committed to providing quality care to all of its patients and companions. In order to ensure that there is effective communication in connection with services that are provided to you, some basic information is needed from you.

1. What is the best way for you to have effective communication?


________ A sign language or oral interpreter (FREE OF CHARGE)

____ American Sign Language (ASL)

____ Signed English

____ Oral interpreter

________ Other. Explain: _____________________________


2. Do you need any of these services for effective communication? All are FREE OF CHARGE.

_____ A telecommunication device for the deaf (TTY/TDD with light signaler)

_____ An amplified telephone receiver

_____ Television captioning

_____ Assistive listening device (sound amplifier)

_____ Computer-assisted real time transcription

_____ Writing back and forth

_____ Other. Explain: _________________________________________


___________________________                 _____________________________
Patient or Companion’s Signature                  Witness

___________________________                _____________________________
Date                                                               Date





Exhibit 2

VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED


Marlene and Gerald Posner
37 Taylor Street
Port Jefferson Station, N.Y. 11776-3929

Re: Posners v. Bethesda Memorial Hospital
D.J. No. 202-18-178

Dear Mr. and Mrs. Posner:

The United States and Bethesda Memorial Hospital (“Bethesda Memorial Hospital”) have entered into a Settlement Agreement to resolve your complaint, D.J. No. 202-18-178, alleging disability discrimination by Bethesda Memorial Hospital. A copy of the Settlement Agreement is enclosed.

Pursuant to the Settlement Agreement, Bethesda Memorial Hospital hereby offers to settle your allegations against the Hospital, for a total of EIGHT THOUSAND FIVE HUNDRED DOLLARS ($8,500.00), which shall be offered to settle your allegation which the Hospital disputes. To receive the monetary award, you must communicate your acceptance to Bethesda Memorial Hospital by executing the enclosed “Release of All Claims” and returning it to Bethesda Memorial Hospital within thirty (30) days of your receipt of this letter. You must send the signed “Release of All Claims” by mail to:

[INSERT NAME AND ADDRESS]

Sincerely,                                                             
___________________________                       
(Representative for Bethesda Memorial Hospital)

Encls.






Exhibit 3

RELEASE OF ALL CLAIMS
D.J. No. 202-18-178

For and in consideration of the acceptance of EIGHT THOUSAND FIVE HUNDRED DOLLARS ($8,500.00) offered to us by Bethesda Memorial Hospital (“Bethesda Memorial Hospital”) pursuant to a Settlement Agreement between the United States of America and Bethesda Memorial Hospital: we, Marlene Posner and Gerald Posner, release and forever discharge Bethesda Memorial Hospital, its subsidiaries, affiliates, insurers, successors and assigns, and its current, past, and future officers, directors, shareholders, employees, and agents, of and from all legal and equitable claims under, arising out of or related to our complaint, D.J. No. 202- 18-178, disputed by and containing the allegation that Bethesda Memorial Hospital failed to provide effective communication in violation of the Americans with Disabilities Act.

This Release constitutes the entire agreement between ourselves and Bethesda Memorial Hospital without exception or exclusion. This Release will be considered null and void in the event Bethesda Memorial Hospital fails to deliver us a check in the amount of $8,500.00 within thirty (30) days of the date of this signed Release.

We acknowledge a copy of the Settlement Agreement between the United States and Bethesda Memorial Hospital has been made available to us. We further acknowledge that we have had the opportunity to review the terms of this Release with an attorney of our choosing and to the extent that we have not obtained that legal advice, we voluntarily and knowingly waive our right to do so.

WE HAVE READ THIS RELEASE AND UNDERSTAND THE CONTENTS THEREOF AND WE EXECUTE THIS RELEASE OF OUR OWN FREE ACT AND DEED.

Signed this _______ day of ____________, 2006

_____________________
Marlene Posner                  

_____________________
Gerald Posner                    

Sworn and subscribed to before me this
_______ day of _____________, 2006.

________________________________Notary public


My commission expires:____________

October 30, 2006