IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
UNITED STATES OF AMERICA,
Civ. No. 11-____-___
CHESHIRE MEDICAL CENTER,
KEENE HEALTH ALLIANCE, and
d/b/a DARTMOUTH-HITCHCOCK KEENE,
Plaintiff United States of America ("United States") commenced this action against Cheshire Medical Center, Dartmouth-Hitchcock Clinic d/b/a Dartmouth-Hitchcock Keene, and Keene Health Alliance, collectively doing business as Cheshire Medical Center/Dartmouth Hitchcock Keene ("CMC/DHK" or "Defendants"), pursuant to Title III of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12181-12189, and the U.S. Department of Justice's implementing regulation, 28 C.F.R. Part 36, alleging, inter alia, that the Hospital violated Title III of the ADA by discriminating on the basis of disability against persons who are deaf and/or hard of hearing and those related to or associated with them.
SUMMARY OF CLAIMS
In its complaint, the United States alleges that CMC/DHK violated the ADA by failing to provide qualified sign language interpreters and/or other appropriate auxiliary aids and services necessary for effective communication to deaf patients and by impermissibly imposing communication responsibilities on hearing family members or friends who were expected to act as a conduit for information between deaf patients and health care professionals.
The complainant, Laura Waldren, is deaf and is an individual with a disability within the meaning of the ADA, 42 U.S.C. § 12102(1) and its implementing regulation at 28 C.F.R. § 36.104.
The United States alleges that CMC/DHK discriminated against Laura Waldren on the basis of her disability by failing to ensure effective communication through the provision of qualified sign language interpreters and appropriate auxiliary aids and services during her visits to CMC/DHK seeking treatment in October, 2009. The United States alleges that, despite prior and repeated requests for a sign language interpreter, staff at CMC/DHK never provided effective interpreter services to assist Ms. Waldren during her visits, which included an appointment at the Hubbard Center for Women's Health on October 7, 2009, a visit to the Emergency Room on October 10, 2009, and a visit to the Hubbard Center for Women's Health with immediate day surgery on October 14, 2009. The United States further alleges that CMC/DHK discriminated against Jeanne Waldren, Laura Waldren's mother, on the basis of her association with an individual with a disability by requiring her to serve as a communication facilitator on two of those occasions.
CMC/DHK has cooperated with the United States' investigation of the Waldrens' complaints. CMC/DHK expressly disputes that it discriminated against Laura Waldren or Jeanne Waldren, and expressly denies liability. CMC/DHK's voluntary agreement with the entry of this Consent Decree does not constitute an admission of liability and should not be so construed.
AGREEMENT REGARDING SETTLEMENT OF CLAIMS
Plaintiff and Defendants agree that the controversy should be resolved without further proceedings and without an evidentiary hearing and, therefore, consent to the entry of this Consent Decree.
AGREEMENT REGARDING JURISDICTION
Plaintiff and Defendants agree that this Court has jurisdiction over the parties and the subject matter of this action.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED:
This Court has jurisdiction over this action pursuant to 42 U.S.C. § 12188(b)(1)(B); 28 U.S.C. §§ 1331 and 1345.
Venue is proper in this District pursuant to 28 U.S.C. § 1391, in that all claims alleged in the Complaint arose within this District. Declaratory relief is appropriate pursuant to 28 U.S.C. §§ 2201 and 2202.
- Plaintiff is the United States of America.
- The Defendants are Cheshire Medical Center, a voluntary corporation incorporated under the laws of the State of New Hampshire, and doing business at 580 Court Street, Keene, New Hampshire; Dartmouth-Hitchcock Clinic, a voluntary corporation incorporated under the laws of the State of New Hampshire and doing business as Dartmouth-Hitchcock Keene at various addresses in the Keene, New Hampshire area; and Keene Health Alliance, a voluntary corporation incorporated under the laws of the State of New Hampshire and doing business as Cheshire Medical Center/Dartmouth-Hitchcock Keene at 580 Court Street, Keene, New Hampshire. Throughout this Consent Decree, they are collectively referred to as "CMC/DHK". The Defendants are public accommodations within the meaning of Title III of the ADA, 42 U.S.C. § 12181(7)(F), and its implementing regulation at 28 C.F.R. § 36.104.
- The term " Auxiliary Aids and Services" includes, but is not limited to: qualified interpreters on-site or through video remote interpreting (VRI) services; oral, relay or tactile interpreters; note-takers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset, amplifiers, assistive listening devices and systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, including real-time captioning; voice, text and video-based telecommunications products and systems, including text telephones (TTY's), videophones and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing. See 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. 28 C.F.R. § 36.303(c)(1)(i).
- 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 Consent Decree" means the date that this Consent Decree is signed by a Judge of this United States District Court.
- The term "CMC/DHK Personnel" shall mean: all employees and independent contractors with contracts to work on a substantially full-time basis for CMC/DHK (or on a part-time basis for CMC/DHK), 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 CMC/DHK.
- The term "in-service" shall include, without limitation, such means of training or familiarization of Medical Personnel as are customarily used by CMC/DHK including, without limitation, written policies and procedures, videotapes, training materials, training sessions, seminars, conferences, and the like.
- The term "Parties" shall mean: CMC/DHK 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 CMC/DHK (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 CMC/DHK, 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 CMC/DHK 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 effectively, 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.
- 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 two (2) 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 situations in which there are less than two (2) 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 terms shall mean situations in which there are less than four (4) hours between the time when a Patient or Companion makes a request and the time when the services are required.
V. INJUNCTIVE RELIEF
- Non-Discrimination. CMC/DHK 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), CMC/DHK will also provide Patients and Companions with the full and equal enjoyment of the services, privileges, facilities, advantages, and accommodations of CMC/DHK as required by this Consent Decree and the ADA. CMC/DHK 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. CMC/DHK 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 Consent Decree or is exercising his or her rights under this Consent Decree or the ADA.
PROGRAM FOR EFFECTIVE COMMUNICATION
- Appropriate Auxiliary Aids and Services. Pursuant to 42 U.S.C. § 12182 (b)(2)(A)(iii), CMC/DHK 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 23 of this Consent Decree. 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 39 and 40 of this Consent Decree.
- Establishment of Program to Provide Appropriate Auxiliary Aids and Services. Within ninety (90) days of the Effective Date of this Consent Decree (except as otherwise specified below), CMC/DHK will design and institute a program to implement the provisions of this Consent Decree, including without limitation:
- developing, coordinating, and overseeing the development of specific procedures to implement fully this Consent Decree;
- scheduling, announcing, and promoting all training required by this Consent Decree;
- coordinating the community outreach required by this Consent Decree;
- modifying medical and intake forms as necessary to ensure that CMC/DHK makes the communication determination required by this Consent Decree for each Patient or Companion, including developing a communication determination form (which shall be accomplished within 30 days of the Effective Date of this Consent Decree); and
- developing a plan for drafting, maintaining, and providing all reports required by this Consent Decree.
- Program Administrators. Simultaneously with the establishment of the program, CMC/DHK 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 Consent Decree, including providing qualified interpreters within the time frames set forth in this Decree. 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. CMC/DHK will circulate broadly within CMC/DHK 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 33 of this Consent Decree. The Program Administrators will be designated by CMC/DHK no later than 30 days following the Effective Date of this Consent Decree.
- Review of New and Modified Policies. CMC/DHK shall submit copies of all policies and procedures that are created or modified in order to comply with this Consent Decree 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. CMC/DHK 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 CMC/DHK 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. CMC/DHK will develop a form for conducting this determination no later than thirty (30) days following the Effective Date of this Consent Decree. The determination made by CMC/DHK 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 CMC/DHK becomes aware that the Patient or Companion is en route to CMC/DHK; or (3) the time the Patient or Companion initially comes in contact with CMC/DHK Personnel. CMC/DHK 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 CMC/DHK Personnel become aware that a Patient or Companion is en route to the Emergency Department (by ambulance or otherwise), CMC/DHK 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 CMC/DHK.
- Redetermination. CMC/DHK 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. CMC/DHK will document any instances where Patients or Companions indicate that the auxiliary aids and services provided by CMC/DHK failed to provide effective communication. CMC/DHK will document any redeterminations and the results of any redeterminations.
- Subsequent Patient Visits. CMC/DHK 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 CMC/DHK. CMC/DHK 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, CMC/DHK Personnel shall reference the Patient's prior medical records, where available, as part of the Communication Determination required by paragraph 23.
- Medical Concerns. Nothing in this Consent Decree will require that an electronic device or equipment constituting an appropriate auxiliary aid be used when or where its use may interfere with medical or monitoring equipment or may otherwise constitute a threat to the Patient's medical condition. Similarly, nothing in this Consent Decree shall be construed to require CMC/DHK or CMC/DHK 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, CMC/DHK determines that the circumstances do not warrant provision of a particular auxiliary aid or service, CMC/DHK 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 CMC/DHK 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 31 of this Consent Decree; 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 CMC/DHK 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 Consent Decree 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 CMC/DHK Personnel have reason to believe, after conducting the determination described in paragraph 23 of this Consent Decree, that such person would benefit from appropriate auxiliary aids or services for effective communication, CMC/DHK will specifically inform the Patient and/or Companion that appropriate auxiliary aids and services are available free of charge.
- Auxiliary Aid and Service Log. CMC/DHK will maintain a log of: (a) each request for an 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 CMC/DHK Personnel who performed any communication determination or redetermination; (g) the name of any CMC/DHK 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 auxiliary aid or service was provided, or a statement that the auxiliary aid or 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 Consent Decree, and will be incorporated into the semi-annual Compliance Reports, as allowed by state and federal law, as described in paragraph 73 of this Consent Decree.
- Communication with Patients and Companions. CMC/DHK will take appropriate steps to ensure that all CMC/DHK 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, CMC/DHK will take appropriate steps to ensure that all CMC/DHK Personnel having contact with a Patient or Companion are aware of: (a) CMC/DHK's policies and procedures implementing this Consent Decree and the ADA; (b) CMC/DHK'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 21 of this Consent Decree.
- Complaint Resolution. CMC/DHK will maintain an effective complaint mechanism for the resolution of disputes regarding effective communication with Patients and Companions. CMC/DHK will maintain records of all complaints regarding effective communication, whether oral or written, made to CMC/DHK and actions taken with respect thereto. CMC/DHK 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, CMC/DHK 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 Consent Decree.
Provision of Qualified Interpreters
- Circumstances Under Which Interpreters Will Be Provided. CMC/DHK 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 23 through 25 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 CMC/DHK;
- 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 CMC/DHK or CMC/DHK 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. Within sixty (60) days of the effective date of this Consent Decree, CMC/DHK shall provide to the United States a signed copy of a contract into which it has entered with one or more reputable interpreter(s) and/or interpreter agency(ies) to provide qualified interpreters at the request of CMC/DHK. Each such contract, at a minimum, will 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, 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 Consent Decree, CMC/DHK 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 580 Court Street, Keene, NH.
- Staff Interpreters. CMC/DHK may, but shall have no obligation to, satisfy its obligations under this Consent Decree 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 CMC/DHK is otherwise obligated to provide under this Consent Decree. CMC/DHK may assign other duties to staff interpreters. To the extent that CMC/DHK does not have staff interpreters or a staff interpreter is not available when needed, CMC/DHK will follow the procedures set forth elsewhere in this Consent Decree to obtain the services of qualified interpreters.
Provision of Interpreters in a Timely Manner
- Scheduled Incidents. For Scheduled Incidents, where an on-site interpreter is necessary to ensure effective communication, CMC/DHK will make a qualified interpreter available at the time of the scheduled appointment (including situations identified in paragraph 46 in which video interpreting services are not effective). If an interpreter fails to arrive for the Scheduled Incident, CMC/DHK 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, CMC/DHK 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, CMC/DHK Personnel will make CMC/DHK's request for an interpreter within fifteen (15) minutes after completing a determination described in paragraph 23, above, and determining that an on-site interpreter is necessary for effective communication. CMC/DHK Personnel will also make such a request within fifteen (15) minutes of any situation identified in paragraph 46 where video remote interpreting services are not effective. CMC/DHK will meet the following overall time standards for providing qualified sign language interpreters to Patients and/or Companions. CMC/DHK 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 CMC/DHK's response time exceed three (3) hours.
- Specific Steps for Non-scheduled Interpreter Requests. Within 15 minutes after completing a determination (as described in paragraph 30) that determines that an on-site interpreter is required, CMC/DHK 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 CMC/DHK has an ongoing contract for qualified interpreter services. If no interpreter can be located, CMC/DHK 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 CMC/DHK 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. CMC/DHK will develop a policy and implement procedures to ensure that once a Patient has been admitted to CMC/DHK and the determination described in paragraph 23 of this Consent Decree 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 CMC/DHK 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 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, CMC/DHK will provide a qualified interpreter for any event that the Companion will attend provided that CMC/DHK Personnel are advised in a reasonably timely fashion that the Companion will be present at the event. CMC/DHK will provide notice to all Patients and Companions of this policy.
- Data Collection on Interpreter Response Time and Effectiveness: Feedback Forms. CMC/DHK 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 31 of this Consent Decree, CMC/DHK shall collect information regarding response times for each request for an interpreter. CMC/DHK 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. CMC/DHK 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 Consent Decree.
- Video Remote Interpreting Services. Video remote interpreting (VRI) 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 VRI, CMC/DHK shall ensure that it provides VRI in accordance with the Standard set out in 28 C.F.R.§ 36.303(f), including:
- real-time, full-motion video and audio over a dedicated, high-speed, wide-bandwidth video connection or wireless connection that delivers high-quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in communication ;
- a sharply delineated image that is large enough to display the interpreter's face, arms, hands, and fingers, and the participating individual's face, arms, hands, and fingers, regardless of his or her body position;
- a clear, audible transmission of voices;
- adequate training to users of the technology and other involved individuals so that they may quickly and efficiently set up and operate the VRI; and
- ensure that the interpreter providing VRI is a qualified interpreter who is capable of communicating effectively with the Patient or Companion.
- CMC/DHK shall ensure that its staff is trained and able to operate and connect the VRI quickly and efficiently and that the services are available at CMC/DHK at all times as set out in the standards above. CMC/DHK should connect the service within fifteen (15) minutes of a determination. Moreover, CMC/DHK shall train staff regarding the limitations of the technology, particularly with respect to:
- Patients who have limited ability to move their heads, hands, or arms; vision problems; cognitive or consciousness issues; or pain issues;
- Patients who may be moved repeatedly to areas of CMC/DHK that do not have a designated high speed Internet line; and
- Patients who will be treated in rooms where space considerations militate against using the service.
Once the system is operating, CMC/DHK Personnel shall ask the Patient or Companion whether the VRI 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, CMC/DHK Personnel will:
- document the concern;
- make all reasonable efforts to locate an on-site qualified sign language interpreter or other auxiliary aid or service that will provide effective communication;
- document all such efforts; and
- 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 CMC/DHK, 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 CMC/DHK, 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 39 and 40 of this Consent Decree cannot be maintained despite CMC/DHK's good faith efforts, CMC/DHK 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 Consent Decree.
- Notice to Patients and Companions. As soon as CMC/DHK Personnel have determined that an interpreter is necessary for effective communication with a Patient or a Companion, CMC/DHK will provide VRI in accordance with this Decree, or if an on-site interpreter is to be provided, CMC/DHK 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, CMC/DHK 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 CMC/DHK'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 CMC/DHK's obligation to provide qualified interpreters in a timely manner as required by paragraphs 39 and 40 of this Consent Decree.
- Other Means of Communication. CMC/DHK agrees that, between the time an interpreter is requested and when an on-site interpreter arrives, CMC/DHK 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, VRI, written notes or sign language pictographs. This provision in no way lessens CMC/DHK's obligation to provide qualified interpreters in a timely manner as required by this Consent Decree. Once an interpreter arrives, CMC/DHK 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, CMC/DHK 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 CMC/DHK 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 CMC/DHK's obligation to provide appropriate auxiliary aids and services as required under this Consent Decree, as well as to comply with 25 C.F.R. § 36.303(c)(3).
Telephones and Related Equipment
- Public Telephones. As soon as practicable but no later than sixty (60) days after the Effective Date of this Consent Decree, CMC/DHK will provide the following:
- TTY's in public areas. CMC/DHK 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, CMC/DHK 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. CMC/DHK 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, CMC/DHK 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, CMC/DHK 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, CMC/DHK 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, CMC/DHK will post signs complying with § 4.30 of the Standards to indicate their location.
- Volume control telephones. CMC/DHK 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. CMC/DHK will ensure that volume control phones are dispersed among all public telephones throughout CMC/DHK. CMC/DHK 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, CMC/DHK may satisfy this requirement by prominently displaying signs in diverse locations throughout CMC/DHK 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 CMC/DHK Personnel who have client contact at all times of the day and night. All CMC/DHK 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 CMC/DHK. Program Administrators (as discussed in paragraph 21) will be responsible for ensuring that this equipment remains readily accessible.
- Telephones in Patient Rooms. Within sixty (60) days of the Effective Date of this Settlement Agreement:
- Portable access technology - defined. CMC/DHK 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. CMC/DHK 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. CMC/DHK 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 CMC/DHK 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 Consent Decree, CMC/DHK 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. CMC/DHK will provide a heavy-duty extension cord for any patient room that is not so equipped.
- Timeliness. Within sixty (60) days of the Effective Date of this Consent Decree, CMC/DHK 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. CMC/DHK will notify all relevant CMC/DHK 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 Consent Decree, CMC/DHK 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 With Hearing Impairments.
- It is expressly agreed that CMC/DHK 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 Consent Decree, if CMC/DHK solicits a third party, parent company, or affiliated health care provider to produce or provide video programs that may be broadcast within CMC/DHK to Patients or Companions, CMC/DHK 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 sixty (60) days from the Effective Date of this Consent Decree, if CMC/DHK produces internally a pre-recorded program for broadcast to Patients and Companions within CMC/DHK, CMC/DHK 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, CMC/DHK 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, CMC/DHK will take additional measures to ensure effective communication.
- Beginning no later than sixty (60) days from the Effective Date of this Consent Decree, if CMC/DHK 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. CMC/DHK 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 CMC/DHK Personnel that assist in making the broadcast accessible. In order to determine which programs should be captioned, CMC/DHK 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. CMC/DHK 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, CMC/DHK shall purchase and/or rent such additional equipment as is reasonably needed to replace defective units as soon as practicable. CMC/DHK 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 sixty (60) days of the Effective Date of this Consent Decree, CMC/DHK 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 CMC/DHK 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 CMC/DHK's websites.
- Advertisements. Within sixty (60) days of the Effective Date of this Consent Decree, CMC/DHK will take appropriate steps to publicize in the community CMC/DHK'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 CMC/DHK, 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 CMC/DHK. Annually thereafter, CMC/DHK shall take reasonable steps to publicize the existence of the Program to the deaf and hard-of-hearing community.
- Patient Guide. CMC/DHK 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 CMC/DHK programs. Please ask your nurse or other CMC/DHK Personnel for assistance, or contact the Program Office at _________________ (voice or TTY), room __________." The Patient Guide shall also include a description of CMC/DHK's complaint resolution mechanism. CMC/DHK shall provide all Patients or Companions who come into contact with CMC/DHK 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 ninety (90) days of the Effective Date of this Consent Decree, CMC/DHK 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 CMC/DHK's policies and procedures governing free sign language interpreter services, including the contents of CMC/DHK's feedback form concerning the effectiveness and timeliness of interpreters that CMC/DHK provides; and
- complaint resolution procedures.
NOTICE TO HOSPITAL PERSONNEL AND PHYSICIANS
- CMC/DHK shall publish, in an appropriate form, a written policy statement regarding CMC/DHK's policy for effective communication with Patients or Companions for use by persons working at CMC/DHK. 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.
CMC/DHK will distribute this document within sixty (60) days of the Effective Date of this Consent Decree to all CMC/DHK Personnel and both employed and affiliated physicians (physicians with practicing or admitting privileges), and to all new CMC/DHK Personnel (including newly employed or affiliated physicians) upon their affiliation or employment with CMC/DHK. In addition, this statement will also be distributed to all CMC/DHK Personnel (including all employed and affiliated physicians) on an annual basis.
- Training of Program Administrators. CMC/DHK will provide special mandatory training for the Program Administrator(s) within sixty (60) days of designation as provided in paragraph 21 of this Consent Decree. 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 CMC/DHK;
- the proper use and role of qualified sign language interpreters;
- making and receiving calls through TTY's and the relay service;
- CMC/DHK's complaint resolution procedure described in paragraph 33 of this Consent Decree; and
- any other applicable requirements of this Consent Decree.
- Training of Emergency Department Personnel. CMC/DHK will provide special mandatory in-service training to CMC/DHK 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 identify promptly communication needs and preferences of deaf or hard-of-hearing persons;
- to conduct the determination required by paragraph 23 of this Consent Decree;
- to meet all of the documentation obligations set forth in this Consent Decree;
- to secure qualified on-site interpreter services as quickly as possible when necessary and to quickly and efficiently set up and operate the VRI system; and
- to use, when appropriate, flash cards, and pictographs,(in conjunction with any other available means of communication that will augment the effectiveness of the communication).
Such training must be provided no later than ninety (90) days after the Effective Date of this Consent Decree and will be conducted annually thereafter.
- Training of Physicians. CMC/DHK will provide specialized mandatory in-service training to all physicians (including affiliated physicians) who do not receive the training discussed in paragraph 65. This training will include the following objectives:
- to identify promptly communication needs and preferences of Patients and Companions;
- to secure qualified on-site interpreter services as quickly as possible when necessary and to quickly and efficiently set up and operate the VRI; and
- to ensure that their staff members notify CMC/DHK and the Program Administrators about Patients and Companions as soon as possible after scheduling admissions, tests, surgeries, or other health care services at CMC/DHK.
Such training must be provided no later than one hundred twenty (120) days after the Effective Date of this Consent Decree and will be conducted annually thereafter.
- Training of Psychiatric Personnel and Social Workers. CMC/DHK will provide specialized mandatory in-service training to CMC/DHK 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 identify promptly communication needs and preferences of Patients and Companions;
- to secure qualified on-site interpreter services as quickly as possible when necessary and to quickly and efficiently set up and operate the VRI; 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 CMC/DHK personnel is encouraged).
Such training must be provided no later than one hundred twenty (120) days after the Effective Date of this Consent Decree and will be conducted annually thereafter.
- Training of Telephone Operators. All CMC/DHK 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 CMC/DHK of Program Administrators, as detailed in paragraph 21 of this Consent Decree, and the complaint resolution process, as described in paragraph 33 of this Consent Decree. Such training must be provided no later than ninety (90) days after the Effective Date of this Consent Decree and will be conducted annually thereafter.
- Training of Other Key Personnel. CMC/DHK will also provide special ADA training to the following CMC/DHK 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. CMC/DHK 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 CMC/DHK of Program Administrators, as described in paragraph 21 of this Consent Decree. Such training must be provided no later than one hundred twenty (120) days after the Effective Date of this Consent Decree and will be conducted annually thereafter.
- Training of New Employees. Commencing sixty (60) days after the Effective Date of this Consent Decree, CMC/DHK will provide the training specified above to new CMC/DHK Personnel within thirty (30) days after the commencement of their services for CMC/DHK. 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. CMC/DHK will maintain, for the duration of this Decree, attendance sheets of all training conducted pursuant to paragraphs 64-70 of this Consent Decree, 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 64-70 should be conducted live whenever possible, CMC/DHK 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. CMC/DHK 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 CMC/DHK Personnel, and response times.
- Compliance Reports. Beginning three months after the Effective Date of this Consent Decree and every six months thereafter for the entire duration of the Consent Decree, CMC/DHK will provide a written report ("Compliance Report") to the U.S. Attorney's Office regarding the status of its compliance with this Consent Decree. The Compliance Report will include data relevant to the Consent Decree, including, but not limited to:
- the number of requests for qualified on-site sign language interpreters received by CMC/DHK from Patients and Companions;
- the number of times a qualified sign language interpreter was provided by CMC/DHK and whether the interpreter was on-site or through VRI;
- the number of times CMC/DHK 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 CMC/DHK from Patients or Companions;
- the number of times auxiliary aids or services were provided by CMC/DHK, a description of the aids or services provided, and the amount of time it took for CMC/DHK to provide the auxiliary aids and services;
- the number of times CMC/DHK 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 CMC/DHK, 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 39 and 40 of this Consent Decree;
- the number of redeterminations performed pursuant to paragraph 25 and the results of these redeterminations;
- the number of complaints received by CMC/DHK 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 Consent Decree;
- copies of all feedback forms referenced in paragraph 72; and
- copies of all logs referenced in paragraph 31.
CMC/DHK 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 Consent Decree, CMC/DHK will notify the U.S. Attorney's Office if any person commences a lawsuit, complaint, charge, or grievance alleging that CMC/DHK 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 CMC/DHK 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 CMC/DHK relevant to the allegation. CMC/DHK will reference this provision of the Consent Decree in the notification to the U.S. Attorney's Office.
VI. COMPENSATORY RELIEF FOR COMPLAINANT AND RELEASE
- Defendants have engaged in mediation with the complainants Laura and Jeanne Waldren, who are represented by private counsel, Kirk Simoneau, Esq. That mediation has resulted in a settlement agreement between the complainants and Defendants as to complainants' claims for damages, including damages under the ADA, arising out of the incidents that also underlie the United States' Complaint and this Consent Decree.
VII. CIVIL PENALTY
- The ADA authorizes the Attorney General to seek, and the Court to award, civil penalties of up to $55,000 for a first violation of Title III of the ADA and up to $110,000 for each subsequent violation. 42 U.S.C. §§ 12188(b)(2)(C) and (b)(3); 28 C.F.R. §§ 36.504.(a)(3) and (b). The United States believes the imposition of a civil penalty is warranted to vindicate the public interest. CMC/DHK shall pay a civil penalty to the United States in the amount of $25,000. CMC/DHK will deliver the check or money order made payable to the Treasury of the United States to counsel for the United States at 53 Pleasant St., Concord, NH 03301, by common carrier Federal Express, delivery prepaid, within thirty (30) days after the Effective Date of this Consent Decree.
VIII. ENFORCEMENT AND MISCELLANEOUS
- Duration of the Consent Decree. This Consent Decree will be in effect for three (3) years from its Effective Date, after which time the Consent Decree shall end; its provisions will be terminated; and the Complaint dismissed with prejudice unless the Court determines, based on findings of noncompliance of CMC/DHK, that it is necessary to extend any of its requirements or unless the United States petitions the Court, at any time during the duration of this Consent Decree, to reopen the case for the purpose of enforcing this Consent Decree. The Court retains jurisdiction to enforce the Decree.
- Changing Circumstances. During the term in which this Consent Decree will be in effect, there may be a change in circumstances such as, for example and without limitation, an increased or decreased availability of qualified sign language or oral interpreters or developments in technology to assist or improve communications with persons who are deaf or hard-of-hearing. If CMC/DHK determines that such changes create opportunities for communicating with Patients and Companions more efficiently or effectively than is required under this Consent Decree, or create difficulties not presently contemplated in the provision of appropriate auxiliary aids and services, it may propose changes to this Consent Decree, by presenting written proposals to the United States Attorney's Office. Such changes will then be made to the Consent Decree 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 Consent Decree 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 80 and 81, below. Nothing contained in this Consent Decree is intended or shall be construed as a waiver by the United States of any right to institute proceedings against CMC/DHK 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 Consent Decree at any time and can enforce this Consent Decree 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 Consent Decree or any portion of it has been violated, it will raise its concern(s) in writing with CMC/DHK and the parties will attempt to resolve the concern(s) in good faith. The United States will allow CMC/DHK thirty (30) days from the date it notifies CMC/DHK of any breach of this Consent Decree to cure that breach, prior to instituting any court action to enforce the ADA and the terms of the Consent Decree.
- Violations. If CMC/DHK violates this Consent Decree, 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 Consent Decree as a first violation of the ADA for the purpose of calculating civil penalties, if any.
- Entire Agreement. This Consent Decree constitutes the entire agreement between the Parties on the matters raised here, 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 Consent Decree is limited to the facts set forth here and does not purport to remedy any other potential violations of the ADA or any other federal law.
- Binding. This Consent Decree 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 Consent Decree 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 Consent Decree shall be construed as an admission by CMC/DHK 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 Consent Decree 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 CMC/DHK except in an action challenging CMC/DHK's compliance with this Decree.
- Execution of Decree. The undersigned counsel represent that they have been fully authorized by their clients to enter into and execute this Consent Decree under the terms and conditions contained herein. Facsimiles and/or PDF copies of signatures may be treated as original signatures. Upon full execution of this agreement, all parties agree that it may be electronically filed with the United States District Court for the District of New Hampshire.
- Availability of Consent Decree. This Consent Decree, along with its exhibits, constitutes a public agreement and a copy of the Decree may be made available to any person.
- Severability. In the event that a court shall determine that any provision of this Consent Decree is unenforceable, such provision shall be severed from this Consent Decree 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.
The undersigned AGREE to the form and content of this Consent Decree:
THOMAS E. PEREZ
Assistant Attorney General
FOR THE UNITED STATES
ERIC H. HOLDER, Jr.
United States Attorney General
JOHN P. KACAVAS
United States Attorney
District of New Hampshire
By: /s/ Gretchen Leah Witt
Gretchen Leah Witt, No. 2775
Chief, Civil Division
Assistant U.S. Attorney
53 Pleasant Street
Concord, NH 03301
Dated: October 11, 2011
FOR CHESHIRE MEDICAL CENTER
By: /s/ Peter W. Mosseau
Peter W. Mosseau
Counsel for Cheshire Medical Center
Dated: October 7, 2011
FOR KEENE HEALTH ALLIANCE
By: /s/ Peter W. Mosseau
Peter W. Mosseau
Counsel for Keene Health Alliance
Dated October 7, 2011
FOR DARTMOUTH HITCHCOCK CLINIC d/b/a DARTMOUTH HITCHCOCK KEENE
By: /s/ Peter W. Mosseau
Peter W. Mosseau
Counsel for Dartmouth-Hitchcock Clinic d/b/a Dartmouth Hitchcock Keene
Dated: October 7, 2011
ADOPTED AND APPROVED BY:
UNITED STATES DISTRICT JUDGE