< United States of America v. HCA Health Services of New Hampshire, d/b/a Portsmouth Regional Hospital

 

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

UNITED STATES OF AMERICA,

Plaintiff,

v.

AHCA HEALTH SERVICES OF NEW HAMPSHIRE, INC.,
d/b/a Portsmouth Regional Hospital,

Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case: No. 10-

CONSENT DECREE

Plaintiff United States of America (“United States”) commenced this action against Defendant HCA Health Services of New Hampshire, d/b/a Portsmouth Regional Hospital (“the Hospital”) 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 the Hospital 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 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.

Claims Regarding Donald and Rosalie Varley

The United States alleges that the Hospital discriminated against Rosalie Varley on the basis of her disability by failing to provide qualified sign language interpreters and appropriate auxiliary aids and services during her hospitalizations at the Hospital in July of 2005 and in December of 2008. The United States further alleges that the Hospital discriminated against Donald Varley on the basis of his association with an individual with a disability by requiring him to serve as a communication facilitator on those same occasions.

Claims Regarding Brian Minch

The United States alleges that the Hospital discriminated against Brian Minch on the basis of his disability by failing to provide qualified sign language interpreters and appropriate auxiliary aids and services during his visits to the Hospital in 2005, 2007, and 2008.

AGREEMENT REGARDING SETTLEMENT OF CLAIMS

Plaintiff and Defendant 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 Defendant agree that this Court has jurisdiction over the parties and the subject matter of this action.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED:

I. JURISDICTION

This Court has jurisdiction over this action pursuant to 42 U.S.C. § 12188(b)(1)(B); 28 U.S.C. §§ 1331 and 1345; 28 U.S.C. § 1367.

II. VENUE

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.

III. PARTIES

Plaintiff

Plaintiff is the United States of America.

Defendant

Defendant is HCA Health Services of New Hampshire, Inc., a private corporation incorporated under the laws of New Hampshire and doing business as Portsmouth Regional Hospital. The Defendant is a public accommodation within the meaning of Title III of the ADA, 42 U.S.C. § 12181(7)(F), and its implementing regulation at 28 C.F.R. § 36.104.

IV. DEFINITIONS

1. The term "Appropriate Auxiliary Aids and Services" includes, but is not limited to: qualified sign language, oral, relay or tactile interpreters, video interpreting services, qualified note-takers, computer-assisted real time transcription services, written materials, telephone handset amplifiers, assistive listening devices and systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, TTY’s, acquisition or modification of equipment or devices, universal sound signalers, sonic blink strobe receivers, telephone signalers, and other methods of delivering effective communication that may have come into use or will come into existence in the future. 28 C.F.R. § 36.303.

2. 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.

3. The term “deaf” shall refer to individuals 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.

4. The term “Effective Date of this Consent Decree” means the date that this Consent Decree is signed by a Judge of the United States District Court.

5. The term "Hospital Personnel" shall mean: all employees and independent contractors with contracts to work on a substantially full-time basis for the Hospital (or on a part-time basis for the Hospital), including, without limitation, nurses, physicians, social workers, technicians, admitting personnel, receptionists, telephone operators, billing staff, security staff, therapists, and all volunteers, who have or are likely to have direct contact with Patients or Companions. The term also includes all affiliated physicians or other health care professionals who have medical staff privileges that permit them to see and/or treat Patients at the Hospital.

6. The term “in-service” shall include, without limitation, such means of training or familiarization of Hospital Personnel as are customarily utilized by the Hospital including, without limitation, written policies and procedures, videotapes, training materials, training sessions, seminars, conferences, and the like. 7. The term “Parties” shall mean: the Hospital and the United States, acting by and through the Department of Justice and the United States Attorney’s Office for the District of New Hampshire.

8. The term “Patient” shall be broadly construed to include any deaf or hard-of- hearing individual (or individual accompanied by a deaf or hard-of-hearing Companion) who is seeking or receiving health care services, including mental health services, from the Hospital (whether on an inpatient or outpatient basis), as well as deaf or hard-of-hearing individuals seeking to use any other goods or services provided by the Hospital, such as the opportunity to donate blood or attend health education classes. The broad construction of this term also includes (but is not limited to) deaf or hard-of-hearing individuals seeking to communicate with representatives of the Hospital regarding past, present or future health care services, such as scheduling appointments, obtaining test results, and discussing billing issues.

9. The term “qualified note-taker” shall mean: one who is able to take notes effectively and accurately, using any necessary specialized vocabulary and terminology.

10. The terms "qualified sign language interpreter," "oral interpreter," or "interpreter" shall mean: an interpreter who is able to interpret competently, accurately, and impartially, both receptively and expressively, using any specialized terminology necessary for effective communication in a hospital setting to a Patient or a Companion who is deaf or hard-of-hearing, given that individual’s language skills and history. Not all interpreters are qualified for all situations. For example, an interpreter who is qualified to interpret using American Sign Language is not necessarily qualified to interpret orally. Someone who has only a rudimentary familiarity with sign language or finger spelling is not a "qualified sign language interpreter" under this Consent Decree. 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.

11. The term "Standards" shall mean: the ADA Standards for Accessible Design, as set forth at 28 C.F.R. Part 36, App. A (1994).

12. 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.

V. INJUNCTIVE RELIEF

13. Non-Discrimination The Hospital will provide appropriate auxiliary aids and services, including qualified sign language interpreters, where such aids and services are necessary to ensure effective communication with Patients and Companions, as required by the ADA. Pursuant to 42 U.S.C. § 12182(a), the Hospital will also provide Patients and Companions with the full and equal enjoyment of the services, privileges, facilities, advantages, and accommodations of the Hospital as required by this Consent Decree and the ADA. The Hospital shall not deny its services, privileges, facilities, advantages, and accommodations to anyone based on the fact that the person is deaf or hard-of-hearing or is associated with someone known to be deaf or hard-of-hearing, as required by the ADA.

14. Retaliation and Coercion The Hospital agrees not to retaliate against or coerce in any way any person who made or is making a complaint according to the provisions of this Consent Decree or is exercising his or her rights under this Consent Decree or the ADA.

Program for Effective Communication

General Obligations

15. Appropriate Auxiliary Aids and Services Pursuant to 42 U.S.C. § 12182 (b)(2)(A)(iii), the Hospital will provide to Patients and Companions any appropriate auxiliary aids and services that may be necessary for effective communication after making the determination described in Paragraph 18 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 33 and 34 of this Consent Decree.

16. Establishment of Program to Provide Appropriate Auxiliary Aids and Services Within 60 days of the effective date of this Consent Decree, the Hospital will design and institute a program to implement the provisions of this Consent Decree, including without limitation:

a. implementing the Policy attached as Exhibit #1;

b. scheduling, announcing, and promoting all training required by this Consent Decree;

c. coordinating the community outreach required by this Consent Decree;

d. modifying medical and intake forms as necessary to ensure that the Hospital makes the communication determination required by this Consent Decree for each Patient or Companion; and

e. developing a plan for drafting, maintaining, and providing all reports required by this Consent Decree.

17. ADA Coordinators Pursuant to the requirements of Exhibit #1, the Hospital shall designate a ADA Coordinator 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 Consent Decree. Such ADA Coordinator shall know where the appropriate auxiliary aids are stored and how to operate them and will have and exercise authority to require their maintenance, repair, replacement, and distribution. The Hospital will circulate broadly within the Hospital the names, telephone numbers, functions, and office locations of such ADA Coordinators, including a TTY telephone number that may be called by Patients and Companions in order to obtain the assistance of such ADA Coordinators. ADA Coordinators 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 ADA Coordinators will be responsible for the complaint resolution mechanism described in this Consent Decree. The ADA Coordinators will be designated by the Hospital no later than thirty (30) days following the effective date of this Consent Decree.

Provision of Appropriate Auxiliary Aids and Services

18. General Determination Criteria The determination of which appropriate auxiliary aids and services are necessary, and the timing, duration, and frequency with which they will be provided, will be made by the Hospital Personnel who are otherwise primarily responsible for coordinating and/or providing patient care services and who are made aware of the need for said auxiliary aids and services by a Patient, a Companion or by other Hospital Personnel by any means identified in Exhibit #1. This determination will be made in consultation with the Patient or Companion, wherever possible, to determine what type of auxiliary aids or services are needed to ensure effective communication. The determination made by Hospital Personnel 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 or other specific auxiliary aid or service;

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.

19. Timing of Determination The initial determination will be made as early as possible once Hospital Personnel become aware that the Patient or Companion may require auxiliary aids or services and Hospital Personnel have the information necessary to make the determination, which will ordinarily be the earliest of: (1) the time an appointment is scheduled; (2) the time the Hospital becomes aware that the Patient or Companion is en route to the Hospital; or (3) the time the Patient or Companion initially comes in contact with the Hospital Personnel. Hospital Personnel will perform and document a communication determination as part of each initial Patient assessment. Completion of communication determinations, including copies of any determination form used, will be documented in the Patient's medical record. In all instances where Hospital Personnel become aware that a Patient or Companion is en route to the Emergency Department (by ambulance or otherwise), Hospital Personnel will make reasonable efforts to conduct a determination in advance of the Patient or Companion’s arrival and seek to have auxiliary aids and services available as soon as practicable after the Patient or Companion’s arrival at the Hospital.

20. Redetermination The Hospital shall reassess its determination of which appropriate auxiliary aids and services are necessary, in consultation with the Patient or Companion, when a Patient or Companion indicates that communication has not been effective. The Hospital will document any instances where Patients or Companions indicate that the auxiliary aids and services provided by the Hospital failed to provide effective communication. The Hospital will document any redeterminations and the results of any redeterminations.

21. Subsequent Patient Visits The Hospital shall implement policies and procedures to expedite arrangements for the provision of auxiliary aids and interpretive services when a Patient or Companion requests appropriate auxiliary aids or services for subsequent visits to the Hospital. Hospital Personnel shall keep appropriate records that reflect the provision of auxiliary aids and services to Patients and Companions, such as notations in Patients’ medical charts. Such records should document whether or not any particular auxiliary aids or services (or individual interpreters) provided effective communication. For example, such records should document whether video interpreting services were ineffective for a particular Patient or Companion and will identify the need for a live interpreter. During a Patient or Companion’s subsequent visit, Hospital Personnel shall reference the Patient’s prior medical records, where available, as part of the Communication Determination required by paragraph 18.

22. 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 the Hospital or Hospital Personnel to take any action or inaction that would jeopardize the safety of any person or compromise the quality of any person’s medical care, or jeopardize the health of an interpreter.

23. Determination Not to Provide Interpreter If, after conducting a determination, the Hospital determines that the circumstances do not warrant provision of a qualified interpreter, Hospital Personnel will so advise the person requesting the qualified interpreter and will document the date and time of the denial, the name and title of the Hospital Personnel making the determination, and the basis for the determination. A copy of this documentation will be provided to the Patient (and Companion, if applicable); will be maintained with the Auxiliary Aid and Service Log described in paragraph 26 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 the Hospital determines that a particular auxiliary aid or service is not to be provided, some means of effective communication must be secured.

24. 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.

25. Individual Notice in Absence of Request If a Patient and/or Companion does not request appropriate auxiliary aids or services, but Hospital Personnel have reason to believe, after conducting the determination described in paragraph 18 of this Consent Decree, that such person would benefit from appropriate auxiliary aids or services for effective communication, the Hospital will specifically inform the Patient and/or Companion that appropriate auxiliary aids and services are available free of charge.

26. Auxiliary Aid and Service Log The Hospital will maintain a log of: (a) each request for interpreter services (either live qualified interpreter or video interpreting service); (b) the type of interpreter service requested; (c) the time and date the request is made; (d) the name of the Patient (and Companion, if applicable); (e) the time and date of the scheduled appointment (if a scheduled appointment was made); (f) the name of the Hospital Personnel who performed any communication determination or redetermination; (g) the name of any Hospital Personnel responsible for determining whether or not to provide the requested interpreter service; (h) the time and date the interpreter services were provided, or a statement that the interpreter service was not provided and the reason why the service was not provided. Such logs will be maintained by the ADA Coordinators 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 59 of this Consent Decree.

27. Communication with Patients and Companions The Hospital will take appropriate steps to ensure that all Hospital Personnel having direct healthcare responsibility for a Patient or substantive communication with a Companion are made aware of such person’s need for an auxiliary aid or service so that effective communication with such person will be achieved. In addition, the Hospital will take appropriate steps to ensure that all such Personnel having such contact with a Patient or Companion are aware of: (a) the Hospital’s policies and procedures implementing this Consent Decree and the ADA; (b) the Hospital’s policies and procedures governing requests for appropriate auxiliary aids and services by Patients and Companions; and (c) the role of the ADA Coordinators described in paragraph 17 of this Consent Decree.

28. Complaint Resolution The Hospital will maintain an effective complaint mechanism for the resolution of disputes regarding effective communication with Patients and Companions. The Hospital will utilize Exhibit #2 to record all complaints regarding effective communication, whether oral or written, made to the Hospital and actions taken with respect thereto. The Hospital will retain copies of all complaint forms submitted to the Hospital regarding effective communication and will retain copies of any documents that reflect complaints regarding effective communication that are submitted by other means. The Hospital will notify Patients and Companions of its complaint resolution mechanism, to whom complaints should be made, and of the right to receive a written response to the complaint. Within thirty (30) days of receipt of the complaint, the Hospital shall provide a written response to the complaint and shall provide a copy of the complaint and the response to the United States. Copies of all complaints or notes reflecting oral complaints and the responses thereto will be maintained by the ADA Coordinators for the entire duration of the Consent Decree.

29. Contract for Obtaining Interpreters The Hospital will use its best efforts to enter into a contract with one or more reputable interpreter(s) and/or interpreter agency(ies) to provide qualified interpreters at the request of the Hospital. Each such contract will, at a minimum, require the interpreter or agency to use its best efforts to maintain a response time of one (1) hour or less at least eighty percent (80%) of non-scheduled incidents within any six (6) month period (excluding any incident when the determination call for an interpreter to be provided at a later time), measured from the time the call is placed to the interpreter or agency.

30. Free-Lance Interpreters Within thirty (30) days of the effective date of this Consent Decree, the Hospital will compile and maintain as current a list of all known free-lance sign language and oral interpreters who reside within forty-five (45) miles of the Hospital.

31. Staff Interpreters The Hospital may also, 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 the Hospital is otherwise obligated to provide under this Agreement. The Hospital may assign other duties to staff interpreters. To the extent that the Hospital does not have staff interpreters or a staff interpreter is not available when needed, the Hospital will follow the procedures set forth elsewhere in this Consent Decree to obtain the services of qualified interpreters.

Provision of Interpreters in a Timely Manner

32. Video Interpreting Services

a. The Hospital currently uses video interpreting services to 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. When using video interpreting services, the Hospital shall ensure that: (a) the service delivers high quality, clear, delay-free, full-motion video and audio over a dedicated high-speed Internet connection; (b) the service provides a clear and sharply delineated picture of the interpreter’s and the Patient’s or Companion’s heads, arms, hands, and fingers, regardless of the body position of the Patient or Companion; (c) voices being transmitted are clear and easily understood; and (d) the interpreter providing video interpreting services is a qualified interpreter who is capable of communicating effectively with the Patient or Companion.

b. The Hospital shall ensure that its staff is trained and able to operate and connect the video interpreting services quickly and efficiently and that the services are available at the Hospital at all times. The Hospital should connect the service within approximately fifteen (15) minutes of a determination that such services are necessary. Moreover, the Hospital shall train staff regarding the limitations of the technology, particularly with respect to: (a) Patients who have limited ability to move their heads, hands, or arms; vision problems; cognitive or consciousness issues; or pain issues; (b) Patients who may be moved repeatedly to areas of the Hospital that do not have a designated high speed Internet line; and (c) Patients who will be treated in rooms where space considerations mitigate against using the service. Once the system is operating, Hospital Personnel shall ask the Patient or Companion whether the video interpreting service is meeting his or her communication needs and make a record of his or her response.

c. In the event that the Patient or Companion indicates at any time, including during the initial Communication Determination described in paragraph 18, that he/she is unable to communicate effectively using the video interpreting service, the Hospital Personnel will: (a) document the concern; (b) make all reasonable efforts to locate a qualified sign language interpreter or other auxiliary aid or service that will provide effective communication; (c) document all such efforts; and (d) periodically inform the Patient/Companion of the status of those efforts.

33. Scheduled Incidents For “Scheduled Incidents,” where an interpreter is necessary to ensure effective communication, the Hospital will have video interpreting services available at the time of the scheduled appointment or will arrange to have a live interpreter available if a live interpreter is necessary in order to achieve effective communication (including situations identified in Paragraph 32 in which video interpreting service is not effective). If the Patient or Companion has no prior experience using video interpreting services and expresses concern about whether these services will be effective, the Hospital will arrange to have a live interpreter available at the Patient or Companion’s initial Scheduled Incident in the event that video interpreting services are not effective. “Scheduled Incidents” are 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 of the interpreter are required (or four (4) or more hours if a request is made between the hours of 8:00 p.m. and 8:00 a.m. or on a weekend or a holiday). If the Hospital cannot provide video interpreter services for a Scheduled Incident, the Hospital will immediately call an interpreter service for a qualified sign language interpreter. Similarly, when making a qualified interpreter available, Hospital Personnel shall clearly identify the interpreter’s availability and make immediate efforts to locate a replacement interpreter if it appears that the original interpreter will not be able to stay throughout the scheduled incident.

34. Non-scheduled Interpreter Requests; Time Standards “Non-scheduled interpreter requests” means a request for an interpreter which is made during the appearance at the Hospital by a Patient or Companion for examination or treatment that was not scheduled prior to the time such Patient or Companion came to the Hospital. After receiving a non-scheduled interpreter request, the Hospital shall make an interpreter available as soon as practicable. After receiving a non-scheduled interpreter request, Hospital Personnel will make the Hospital’s request for an interpreter within approximately fifteen (15) minutes after completing a determination described in paragraph 18, above, that determines that a live interpreter is necessary. Hospital Personnel will also make such a request within approximately fifteen (15) minutes of any situation identified in Paragraph 32 where video interpreting services are not effective. The Hospital will meet the following overall time standards for providing qualified sign language interpreters to Patients and/or Companions. The Hospital will maintain a response time of one (1) hour in eighty percent (80%) of non-scheduled interpreter requests within any six (6) month period. Whether this standard is met will be measured beginning (15) minutes after it is determined that an interpreter is required. In no event (other than the force majeure events identified in paragraph 37) will the Hospital’s response time exceed three (3) hours.

35. Specific Steps for Non-scheduled Interpreter Requests Within approximately fifteen (15) minutes after completing a determination (as described in paragraph 18) that determines that interpreting services are required, Hospital Personnel will provide video interpreter services. Within approximately fifteen (15) minutes after completing a determination (as described in paragraph 18) that determines that a live interpreter is required, Hospital Personnel also will request an interpreter (qualified to interpret for the specific individual who will be using the services) from the interpreters or agencies with whom the Hospital has an ongoing contract for qualified interpreter services. If no interpreter can be located, Hospital Personnel will take the following additional steps:

a. Hospital Personnel will exert reasonable efforts (which shall be deemed to require no fewer than five (5) telephone inquiries) to contact interpreters or interpreting agencies already known to the Hospital and request their services pursuant to the Hospital’s Guide for Obtaining Certified Interpreter/Auxiliary Aides;

b. inform the ADA Coordinator of the efforts made to locate an interpreter and solicit assistance in locating an interpreter;

c. 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;

d. 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

e. document all of the above efforts.

36. Data Collection on Interpreter Response Time and Effectiveness: Feedback Forms The Hospital will monitor the performance of each qualified sign language interpreter it uses to provide communication to Patients or Companions. As part of the Auxiliary Aid and Service Log, described in paragraph 26 of this Consent Decree, the Hospital shall collect information regarding response times for each request for an interpreter. The Hospital shall also prepare a form requesting feedback concerning the timeliness and effectiveness of interpreter services. This feedback form shall be provided to each Patient or Companion who requests an interpreter or receives the services of an interpreter. The Hospital shall use the feedback forms for monitoring and evaluating the performance of each interpreter it provides to Patients and Companions. The ADA Coordinators shall maintain the completed feedback forms for the Term of this Consent Decree.

37. 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 whether the prescribed response criteria have been met. Force majeure events are events outside the reasonable control of the Hospital, the interpreter service provider or the interpreter called to respond, such as weather problems and other Acts of God, unanticipated illness or injury of the interpreter while en route to the Hospital, unanticipated Internet or telephone problems, and unanticipated transportation problems (including, without limitation, mechanical failure of the interpreter’s automobile, automobile accidents and roadway obstructions, other than routine traffic or congestion).

38. Notice to Patients and Companions As soon as Hospital Personnel have determined that an interpreter is necessary for effective communication with a Patient or a Companion, the Hospital will inform such person (or a family member or friend, if such person is not available) of the current status of efforts being taken to secure the appropriate auxiliary aids and services on his or her behalf. If an interpreter has not arrived within one hour of such notice, the Hospital shall follow up with the Patient, Companion (or family member or friend if the person seeking the interpreter is not available) regarding the expected arrival time of the interpreter or whatever is known regarding the status of the Hospital’s endeavor to secure an interpreter. Additional updates shall be provided thereafter as necessary until such aids and services are secured. Notification of efforts to secure a qualified interpreter does not diminish the Hospital’s obligation to provide qualified interpreters in a timely manner as required by paragraphs 33 and 34 of this Consent Decree.

39. Other Means of Communication The Hospital agrees that between the time an interpreter is requested and when interpreting services are provided, Hospital Personnel will continue to try to communicate with the Patient or Companion for such purposes as they would have communicated with the person but for the hearing impairment, using all available methods of communication. Such means of communication may include, but are not limited to, written notes or sign language pictographs. This provision in no way lessens the Hospital’s obligation to provide qualified interpreters in a timely manner as required by this Consent Decree. Once interpreting services are being provided, the Hospital Personnel will ensure that the Patient or Companion has a reasonable understanding of the care already provided and the current treatment plan.

40. Restricted Use of Certain Persons to Facilitate Communication Due to confidentiality, potential emotional involvement, and other factors that may adversely affect the ability to facilitate communication, the Hospital shall never require or coerce a family member, companion, case manager, advocate, or friend of a Patient or Companion who is deaf or hard of hearing to interpret or facilitate communications between Hospital Personnel and such Patient or Companion. In any case, such person shall be used to interpret or facilitate communication only if the Patient or Companion who is deaf or hard of hearing does not object, if such person wishes to provide such assistance, and if such use is necessary or appropriate under the circumstances, giving appropriate consideration to any privacy issues that may arise. A Patient or Companion’s waiver of a qualified sign language interpreter under this provision must be made in the Patient’s chart or records. This provision in no way lessens the Hospital’s obligation to provide appropriate auxiliary aids and services as required under this Consent Decree.

41. Telephones and Related Equipment As part of the resolution of a separate private lawsuit, the Hospital has taken steps to make TTY devices and other devices available and to provide appropriate signage regarding the availability of these devices. The Hospital agrees that it will comply with the Standards with respect to these devices.

42. Duty to Provide Visual Programs in a Manner That is Accessible to Persons With Hearing Impairments

a. It is expressly agreed that the Hospital does not have an obligation to provide captions on any program broadcast over the public airways or commercial cable television services, where such captions are not already integrated into the program.

b. Beginning no later than sixty (60) days from the effective date of this Consent Decree, if the Hospital solicits a third party, parent company, or affiliated health care provider to produce or provide video programs that may be broadcast within the Hospital to Patients or Companions, the Hospital will ensure that the program is captioned, unless, under the circumstances, doing so would impose an undue burden. 28 C.F.R. § 36.303. Commercial videos available to the general public shall not be subject to this requirement.

c. Beginning no later that sixty (60) days from the effective date of this Consent Decree, if the Hospital produces internally a pre-recorded program for broadcast to Patients and Companions within the Hospital, the Hospital will ensure that the program is made accessible to Patients and Companions, whether by captioning such program or by providing a transcript or sign language interpreter whenever it is viewed by a Patient or Companion. If the program is not captioned, the method of access delivery must be tailored to the needs of the Patient or Companion. For instance, if the person does not know sign language, the Hospital may provide effective communication through a transcript. In most circumstances, captioning will be regarded as providing effective communication with all deaf or hard-of-hearing persons, regardless of the communication skills and history of such persons (though repeated screenings may be necessary, if the deaf or hard-of-hearing person cannot read English at the rate required to keep pace with the audible portion of the program). If, however, the contents of a program are sufficiently important to require precise communication of its contents, the Hospital will take additional measures to ensure effective communication.

d. Beginning no later than sixty (60) days from the effective date of this Consent Decree, if the Hospital produces its own live broadcasts for Patients and Companions, it will make the majority of such programs accessible to Patients and Companions. Captioning is one way, but not the only way, to accomplish this objective. The Hospital can also choose to provide sign language interpreters (if the deaf or hard-of-hearing person uses sign language), written scripts prepared in advance of the live broadcast, or Hospital Personnel that assist in making the broadcast accessible. In order to determine which programs should be captioned, the Hospital may prioritize and consider such factors as the importance and length of the program, as well as any significant difficulty or expense in captioning the program or displaying the captions, given the location of its filming or viewing.

Miscellaneous Technology Provisions

43. Client Education The Hospital shall ensure that each Patient and Companion who is provided with portable access technology is appropriately directed as to the proper use of such equipment.

44. Acquisition of Additional Equipment In addition to the equipment required above, the Hospital shall purchase and/or rent such additional equipment as is reasonably needed to replace defective units as soon as practicable. The Hospital shall also monitor developments in technology and shall upgrade such equipment when and if it deems it reasonable and appropriate to do so.

Notice to Community

45. Policy Statement Within thirty (30) days of the effective date of this Consent Decree, the Hospital shall add the following statement to the signs it has posted throughout the emergency room and admitting areas notifying persons with difficulty hearing or speaking to ask a staff member for help: Sign language and oral interpreters, TTY’s, assistive listening devices, and/or other auxiliary aids and services are available free of charge to Patients and Companions who need them for effective communication. For assistance, please contact any Hospital personnel or the ADA Coordinator at ____________ (voice/TTY), room ____________. International signs for accessibility, including the international symbols for “interpreters” and “TTY’s,” will be posted near the policy. This statement also shall be placed in a prominent location on the Hospital’s website.

46. Advertisements Within sixty (60) days of the effective date of this Consent Decree, the Hospital will take appropriate steps to publicize in the community the Hospital's commitment to provide all of its services to Patients and Companions. Such publicity shall be deemed satisfied by the purchase of reasonable advertising space at least twice in newspapers of general circulation serving the same community as is served by the Hospital, which advertisements will include a statement that all appropriate auxiliary aids and services, including qualified sign language interpreters, TTY's, and assistive listening devices, will be provided free of charge upon request, and include appropriate instructions regarding access to the ADA Coordinator at the Hospital. Annually thereafter, the Hospital shall take reasonable steps to publicize the existence of the Program to the deaf and hard-of-hearing community.

47. Patient Guide The Hospital will include in all future printings of its Patient Guide (or equivalent), and all similar publications, a statement to the following effect: "To ensure effective communication with Patients and their Companions who are deaf or hard-of-hearing or who have speech impairments, we provide appropriate auxiliary aids and services free of charge, such as: sign language and oral interpreters, TTY's, note-takers, computer-assisted real time transcription services, written materials, telephone handset amplifiers, assistive listening devices and systems, telephones compatible with hearing aids and closed caption decoders. Please ask your nurse or other Hospital Personnel for assistance, or contact the ADA Coordinator at _________________ (voice or TTY), room __________." The Patient Guide shall also include a description of the Hospital’s complaint resolution mechanism. The Hospital shall provide all Patients or Companions who come into contact with Hospital Personnel at the Emergency Department with a copy of this Guide as soon as practicable after their arrival at the Emergency Department.

48. Information Made Available in ASL Within sixty (60) days of the effective date of this Agreement, the Hospital will make the following information available in American Sign Language (ASL) using videotape, DVD, or CD-ROM format:

a. the Patient’s Bill of Rights;

b. health care directives;

c. information regarding the Hospital’s policies and procedures governing free sign language interpreter services, including the contents of the Hospital’s feedback form concerning the effectiveness and timeliness of interpreters that the Hospital provides; and

d. complaint resolution procedures.

Notice to Hospital Personnel and Physicians

49. The Hospital will distribute Exhibit #1 within thirty (30) days of the effective date of this Consent Decree to all Hospital Personnel and both employed and affiliated physicians (physicians with practicing or admitting privileges), and to all new Hospital Personnel (including newly employed or affiliated physicians) upon their affiliation or employment with the Hospital. In addition, this statement will also be distributed to all Hospital Personnel (including all employed and affiliated physicians) on an annual basis.

Training

50. Training of ADA Coordinators The Hospital will provide special mandatory training for the ADA Coordinator(s) within sixty (60) days of designation as provided in paragraph 17 of this Consent Decree. Such training will be sufficient in duration and content to train the ADA Coordinators in:

a. The health care needs of the deaf and hard-of-hearing;

b. the various degrees of hearing impairment, language, and cultural diversity in the deaf community;

c. identification of communication needs of persons who are deaf;

d. the unique needs and problems encountered by late-deafened individuals;

e. the psychological implications of deafness and its relationship to interaction with hearing health care professionals;

f. recommended and required charting procedures governing requests for auxiliary aids and services;

g. types of auxiliary aids and services available in the community and Hospital;

h. the proper use and role of qualified sign language interpreters;

i. making and receiving calls through TTY’s and the relay service;

j. the Hospital’s complaint resolution procedure described in paragraph 28 of this Consent Decree; and

k. any other applicable requirements of this Consent Decree.

51. Training of Emergency Department Personnel The Hospital will provide special mandatory in-service training to Hospital Personnel who have Patient responsibility and who work or volunteer in the emergency department. The training will address the special needs of Patients and Companions and will include the following objectives:

a. to promptly identify communication needs and preferences of deaf or hard-of-hearing persons;

b. to conduct the determination required by paragraph 18 of this Consent Decree;

c. to meet all of the documentation obligations set forth in this Consent Decree;

d. to secure qualified interpreter services as quickly as possible when necessary; and

e. to use, when appropriate, flash cards, pictographs, and a video interpreting service (in conjunction with any other available means of communication that will augment the effectiveness of the communication).

Such training must be provided no later than 90 days after the effective date of this Consent Decree and will be conducted annually thereafter.

52. Training of Physicians The Hospital will provide specialized mandatory in-service training to all physicians (including affiliated physicians) who do not receive the training discussed in paragraph 51. This training will include the following objectives:

a. to promptly identify communication needs and preferences of Patients and Companions;

b. to secure qualified interpreter services as quickly as possible when necessary; and

c. to ensure that their staff members notify the Hospital and the ADA Coordinators about Patients and Companions as soon as possible after scheduling admissions, tests, surgeries, or other health care services at the Hospital.

Such training must be provided no later than one hundred twenty (120) days after the effective date of this Consent Decree and will be conducted annually thereafter.

53. Training of Psychiatric Personnel and Social Workers The Hospital will provide specialized mandatory in-service training to Hospital Personnel with Patient responsibility who work in the Department of Psychiatry (or its equivalent) or are members of the Social Work Department (or its equivalent). This training will include the following objectives:

a. to promptly identify communication needs and preferences of Patients and Companions;

b. to secure qualified interpreter services as quickly as possible when necessary; and

c. to facilitate appropriate interaction between Patients and other patients, when appropriate (e.g., group therapy sessions and other times when interaction with persons other than Hospital personnel is encouraged).

Such training must be provided no later than one hundred twenty (120) days after the effective date of this Consent Decree and will be conducted annually thereafter.

54. Training of Telephone Operators All Hospital Personnel who receive incoming telephone calls from the public will receive special instructions on using TTY’s or relay services to make, receive and transfer telephone calls, and will receive training generally on the existence in the Hospital of ADA Coordinators, as detailed in paragraph 17 of this Consent Decree, and the complaint resolution process, as described in paragraph 28 of this Consent Decree. Such training must be provided no later than sixty (60) days after the effective date of this Consent Decree and will be conducted annually thereafter.

55. Training of Other Key Personnel The Hospital will also provide special ADA training to the following Hospital Personnel not otherwise trained as provided above: all clinical directors and nursing supervisors; personnel who staff the admissions desk (or its equivalent for in-patient registration), a central registry desk (or its equivalent for out-patient registration), and/or a general information desk; all triage nurses and other triage professionals; and heads of each department in which communication with Patients and Companions occurs. Hospital Personnel responsible for billing and insurance issues who routinely interact with Patients and Companions will receive special training on the availability of auxiliary aids and services and the existence in the Hospital of ADA Coordinators, as described in paragraph 17 of this Consent Decree. Such training must be provided no later than 120 days after the effective date of this Consent Decree and will be conducted annually thereafter.

56. Training of New Employees The Hospital will provide the training specified above to new Hospital Personnel within thirty (30) days after the commencement of their services for the Hospital. Such training must be comparable to training provided to specific departments as necessary. A screening of a video of the original training will suffice to meet this obligation.

57. Training Attendance Sheets The Hospital will maintain, for the duration of this Consent Decree, attendance sheets of all training conducted pursuant to paragraphs 50-56 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 50-56 should be conducted live whenever possible, the Hospital may satisfy the training requirement for individuals who are unable to attend live training sessions by showing a video of the original training.

VI. REPORTING, MONITORING, AND VIOLATIONS

58. Patient Feedback The Hospital will develop a form to collect feedback from Patients and Companions regarding the provision of auxiliary aids and services. Such a form will assess Patient and Companion satisfaction with the quality of the auxiliary aids and services provided, the effectiveness of communication with Hospital Personnel, and response times.

59. 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, Concord Hospital 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:

a. the number of requests for qualified sign language interpreters received by the Hospital from Patients and Companions;

b. the number of times a qualified sign language interpreter was provided by the Hospital;

c. the number of times the Hospital denied a request for a qualified sign language interpreter and the reason for each denial;

d. the number of times the Hospital chose to provide video interpreting services rather than a qualified sign language interpreter in response to a request for a qualified sign language interpreter;

e. the number of times a request for a qualified sign language interpreter was accepted by the Hospital, but the interpreter failed to appear, and the reasons for the failure;

f. 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;

g. 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 33 and 34 of this Consent Decree;

h. the number of redeterminations performed pursuant to paragraph 20 and the results of these redeterminations;

i. the number of complaints received by the Hospital from Patients and Companions regarding auxiliary aids and services and/or effective communication, and the resolution of such complaints including any supporting documents;

j. documentation of compliance with all of the training and technology provisions of this Consent Decree;

k. copies of all feedback forms referenced in paragraph 36; and

l. copies of all logs referenced in paragraph 26.

60. Records The Hospital will maintain appropriate records to document the information contained in the Compliance Reports and will make them available, upon request, to the U.S. Attorney’s Office, as allowed by state and federal law.

61. Complaints During the Term of this Consent Decree, the Hospital will notify the U.S. Attorney’s Office if any person commences a lawsuit, complaint, charge, or grievance alleging that the Hospital failed to provide auxiliary aids and services to Patients or Companions or otherwise failed to provide effective communication with such Patients or Companions. Such notification must be provided in writing via certified mail within twenty (20) days of the date the Hospital received notice of the allegation and will include, at a minimum, the nature of the allegation, the name of the person making the allegation, and any documentation possessed by the Hospital relevant to the allegation. The Hospital will reference this provision of the Consent Decree in the notification to the U.S. Attorney’s Office.

62. Violation of the Consent Decree The United States may review compliance with this Consent Decree at any time and may enforce this Consent Decree if the United States believes that it or any requirement thereof has been violated. If the United States believes that this Consent Decree or any portion of it has been violated, it will raise its concern(s) with the Hospital and the Parties will attempt to resolve the concern(s) in good faith. The United States will give the Hospital thirty (30) days from the date it notifies the Hospital of any breach of this Consent Decree to cure that breach, prior to instituting any court action. Failure by the United States to enforce any provision or deadline of this Consent Decree shall not be construed as a waiver of its right to enforce other provisions or deadlines of this Decree.

VII. COMPENSATORY RELIEF AND CIVIL PENALTIES

63. Within ten (10) days of the effective date of this Consent Decree, the Hospital will pay $35,000.00 in compensation to Rosalie Varley, $15,000.00 in compensation to Donald Varley, and $10,000.00 in compensation to Brian Minch. The Hospital will send checks made out to the complainants by certified mail, return receipt requested, or via hand delivery, to the United States Attorney’s Office. These checks are compensation pursuant to 42 U.S.C. § 12188(b)(2)(B), for the effects of the alleged discrimination suffered as described in the Complaint. The checks shall be mailed to: Office of the United States Attorney, 53 Pleasant Street, Fourth Floor, Concord, NH 03301, Attn: AUSA John Farley.

64. Within five (5) days of receipt of the checks referenced in Paragraph 63 of this Consent Decree, the United States will deliver to counsel for the Hospital releases signed by each of the complainants.

65. The Hospital will pay to the United States, as authorized by 42 U.S.C. § 12188(b)(2)(C)(i), $20,000.00 as a civil penalty. Payment to the United States shall be made by the Hospital in accordance with directions provided by the United States.

VIII. MISCELLANEOUS PROVISIONS

66. Term of Consent Decree The United States District Court for the District of New Hampshire will retain jurisdiction over this action for the purpose of ensuring compliance and enforcing the provisions of this Consent Decree for three (3) years from the Effective Date of this Consent Decree, after which time its provisions will be terminated and the Complaint dismissed with prejudice unless the Court determines, based on findings of noncompliance of the Hospital, 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 and the Court retains jurisdiction to enforce the Decree. The United States may, in its discretion, petition the Court to terminate the Consent Decree two years following the Effective Date of this Consent Decree if both of the following conditions are met: (1) the Hospital is in compliance as of the second anniversary of the Effective Date of this Consent Decree, with all provisions and obligations set forth in the Consent Decree; and (2) in the event that there has been an allegation of a violation of any of the aforesaid paragraphs, there has been an investigation and response by the Hospital that the United States considers to be effective, timely and adequate.

67. Public Agreement This Consent Decree, along with its exhibits, constitutes a public agreement and a copy of the Decree may be made available to any person.

68. 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 the Hospital 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.

69. 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 further civil suits under Title III against the Hospital related to the provision of effective communication, except as provided in paragraph 62. 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 the Hospital for violations of any statutes, regulations, or rules administered by the United States or to prevent or limit the right of the United States to obtain relief under the ADA.

70. Entire Agreement This Consent Decree constitutes the entire agreement between the Parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written agreement, shall be enforceable. This Consent Decree is limited to the facts set forth herein and does not purport to remedy any other potential violations of the ADA or any other federal law.

71. 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. The Hospital has a duty to so inform any such successor in interest.

72. 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.

73. Disclaimer of Liability Nothing in this Consent Decree shall be construed as an admission by the Hospital of any liability or fault, that it engaged in any wrongful or illegal activity, that any of the United States’ allegations are true, or that any person suffered any injury as a result of the events as alleged by the United States. This 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 the Hospital except in an action challenging the Hospital’s compliance with this Consent Decree.

74. Execution of Consent 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.

75. 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:

FOR HCA HEALTH SERVICES
OF NEW HAMPSHIRE, INC. d/bla
PORTSMOUTH REGIONAL
HOSPITAL

FOR THE UNITED STATES
JOHN P. KACA VAS
United States Attorney
By: /s/ Steven E. Clifton
Steven E. Clifton
Vice President & Assistant Secretary
HCA Health Services of New
Hampshire, mc.

By: /s/ John J. Farley
John J. Farley
Assistant U.S. Attorney
U.S. Attorney's Office
N.H. Bar No. 16934
53 Pleasant Street
Concord, NH 03301
(603) 225-1552
John.Farley@usdoj .gov


Dated: November 23,2010 Dated: November 23,2010
By: /s/ David Vicinanzo
David Vicinanzo Esq.
NH Bar No. 9402
Counsel to HCA Health
Services of New Hampshire,
d/b/a Portsmouth Regional
Hospital
Njxon Peabody LLP
900 Elm Street
Manchester, NH 03101
(603) 628-4000
DVicinanzo@nixonpeabody.com


Dated: November 23,2010
 

ADOPTED AND APPROVED BY:

_________________________
United States District Judge
Dated: _________________

 

 

 





April 12, 2011