SETTLEMENT AGREEMENT

IN

United States v. HealthEast

DOJ # 2004V00576

AND

State of Minnesota v. HealthEast

MDHR # 44836

 

I. INTRODUCTION

On May 13, 2004, the United States of America ("United States") commenced an investigation of a complaint: lodged by Eric and Katherine Blumenfeld ("Blumenfelds") under Title III of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12181-12189, the U.S. Department of Justice's implementing regulation, 28 C.F.R. Part 36, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Section 504"). The Blumenfelds' federal complaint alleged, inter alia, that HealthEast 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.

On October 15, 2004, Katherine Blumenfeld filed a charge of discrimination with the Minnesota Department of Human Rights ("MDHR") alleging that HealthEast violated the Minnesota Human Rights Act ("MHRA") by failing to provide reasonable accommodation for her disability. The MDHR commenced an investigation of Katherine Blumenfeld's complaint.

II. SUMMARY OF CLAIMS

Eric and Katherine Blumenfeld are deaf. Katherine Blumenfeld is the conservator of her mother, AB.1 Katherine Blumenfeld also has Power of Attorney, granting her authority to make medical care decisions for her mother. Eric Blumenfeld has Power of Attorney authorizing him to make medical decisions for AB when Katherine Blumenfeld is not available.

1 The initials "AB" are used in this Agreement in place of Katherine Blumenfeld's mother's name in order to protect her privacy.

In both their federal and state complaints, the Blumenfelds allege the following:

On May 8, 2004, at approximately 11:30 p.m., the nursing home staff where AB resides notified the Blumenfelds that AB had fallen and needed to be transported to a hospital for medical care. The Blumenfelds contacted St. Joseph's Hospital, in St. Paul, Minnesota, part of HealthEast's system of medical facilities, to arrange for AB's hospital care. They requested that the hospital provide a sign language interpreter for the Blumenfelds, but hospital staff told them they could not provide an interpreter because it was after hours and the hospital's interpreter office was closed. The hospital also told the Blumenfelds that it would not provide an interpreter because Katherine Blumenfeld was not the patient and her mother, who was the patient, was not deaf. Hospital staff directed the Blumenfelds to call the hospital the next morning. Based on the hospital's response to their request for an interpreter, the Blumenfelds decided to wait until the next morning when the interpreter office was open to bring AB to the hospital. The Blumenfelds would have brought AB to the hospital sooner if the hospital had been willing to provide an interpreter.

The next morning, May 9, 2005, the Blumenfelds contacted the hospital and notified staff that they were bringing AB to the hospital. They repeated their request for an interpreter. When the Blumenfelds arrived at the hospital with AB, there was no interpreter present. They once again requested an interpreter. The hospital did not provide an interpreter for the Blumenfelds for approximately four hours after they arrived at the hospital on May 9 and more than twelve hours after the Blumenfeld had first requested an interpreter on May 8.

AB remained hospitalized at St. Joseph's Hospital for approximately two days and during that period, the hospital provided a qualified interpreter for only some communications between the Blumenfelds and its staff. On several occasions, including conferences with the medical staff concerning AB's medical condition and options for her medical care, St. Joseph's Hospital did not provide any interpreter. The hospital also failed to provide an interpreter for the discharge conference concerning AB's medical treatment following her release from the hospital. Although the Hospital talked to Katherine Blumenfeld by telephone using the relay service when AB was being discharged, this communication was inadequate and ineffective

In their federal and state complaints, the Blumenfelds allege that AB's transportation to the hospital and her medical care was delayed because of the hospital's failure to contact and arrange for an interpreter during the early hours of May 9, 2004. They also allege that once they arrived at the hospital, there was a lengthy delay in obtaining a sign language interpreter. In addition, they allege that the policies and procedures of HealthEast with regard to sign language interpreters violates the ADA, Section 504, and the MHRA.

In its response to the allegations of the Blumenfelds, Health East states the following:

Upon learning of the concerns of the Blumenfelds, HealthEast investigated the issues regarding the interpreter services provided to A.B. HealthEast does not have any record of interpreter services having been requested on May 8, 2004. If interpreter services had been requested by the Blumenfelds, HealthEast would have expected formal documentation of that request. HealthEast also would have expected its employees to provide an interpreter to Mr. and Mrs. Blumenfeld during the times that A.B. was receiving medical care at the hospital.

According to HealthEast's investigation, A.B. arrived at the hospital at approximately 10:45 a.m. on May 9, 2004. The patient received various tests that morning. A HealthEast nurse contacted an interpreter service at 12:21 p.m. The interpreter arrived at 1:10 p.m. and stayed at the hospital for four hours. During the time that the interpreter was present, the patient was discharged from the emergency department, was admitted to the floor, was seen by her primary care physician, and an orthopedic specialist. The interpreter left at 5:10 p.m. on May 9, 2004.

During A.B.'s hospitalization on May 10, 2004, Kathy Blumenfeld contacted the hospital at 6:00 a.m. and communicated with nursing staff via the relay system. At 11:00 a.m. that morning, Kathy Blumenfeld had another conversation with nursing staff via the relay system. At 1:00 p.m. on May 10, 2004, Kathy Blumenfeld participated in a care conference regarding A.B. involving nursing staff via the relay system.

A.B. was discharged from the hospital on May 11, 2004. According to the investigation performed by HealthEast, a hospital social worker spoke to one of A.B.'s daughters about the discharge plan and also communicated with Kathy Blumenfeld about the discharge through the relay service. Kathy Blumenfeld was not present at discharge, but based upon the investigation performed by HealthEast, all communications regarding the patient's discharge were conveyed to Ms. Blumenfeld through the relay service. The formal discharge instructions were provided directly to A.B.'s care givers at the nursing home because the patient was being discharged directly to a nursing home.

III. INVESTIGATION AND FINDINGS

The United States Department of Justice ("Department") and the U.S. Attorney for the District of Minnesota ("U.S. Attorney") are authorized under 28 C.F.R. Part 35, Subpart F, to investigate the allegations of the complaint in this matter to determine HealthEast's compliance with Title III of the ADA. It has the authority to issue findings, and, where appropriate, negotiate and secure voluntary compliance agreements. Furthermore, the Department and U.S. Attorney are authorized under 42 U.S.C. § 12133 to bring civil actions enforcing Title III of the ADA should they fail to secure voluntary compliance pursuant to Subpart F.

Pursuant to Minn. Stat. § 363A.28, subd. 6, the MDHR conducted an investigation into the allegations in Katherine Blumenfeld's charge of discrimination. Under Minn. Stat. 5 363A.28, subd. 8, the MDHR has the authority and obligation to endeavor to eliminate the unfair discriminatory practices through education, conciliation, and voluntary settlement agreements. Furthermore, the MDHR is authorized under Minn. Stat. § 363A.28, subd. 6; 363A.29; and 363A.33 to begin an administrative proceeding or a civil action to enforce the MHRA if efforts to obtain voluntary compliance are unsuccessful.

HealthEast is a private, non-profit corporation that owns and operates several acute-care hospitals licensed by the State of Minnesota. HealthEast operates facilities that 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. HealthEast owns and operates "places of public accommodation" within the meaning of the MHRA, Minn. Stat. § 363A.03, subd. 34.

Following its investigation, the United States found reasonable cause to believe that effective communication was not achieved in a timely manner in this case. The MDHR completed its separate investigation and concluded that there was probable cause to believe that an unfair discriminatory practice was committed during the hospitalization of Katherine Blumenfeld's mother. Specifically, the United States and the MDHR concluded that HealthEast failed to provide a sign language interpreter in a timely manner on May 9, 2004; that HealthEast had no effective protocol for arranging interpreters for emergency room admissions after hours; and that HealthEast failed to provide an interpreter for important meetings like discharge conferences.

IV. AGREEMENT REGARDING SETTLEMENT OF CLAIMS

A.RECITAL

The United States, the MDHR, the Blumenfelds, and HealthEast ("The Parties") agree that the federal and state complaints filed against HealthEast should be resolved without further proceedings and litigation. For due and adequate consideration, the Parties therefore enter into this Agreement.

B.DEFINITIONS

1."Auxiliary Aids and Services" means qualified sign language or oral interpreters, note takers, computer-assisted real time transcription services, written materials, telephone handset amplifiers, assistive listening devices, assistive listening closed captioning, TTYs/TDDs, large-print materials, acquisition or modification of equipment and other methods of delivering effective communication that may have come into use or will come into existence in the future.

2."Hospital ," "Hospitals," or "HealthEast" means the following hospitals and facilities owned and operated by HealthEast: St. Joseph's Hospital in St. Paul, Minnesota; St. John's Northeast Hospital in Maplewood, Minnesota; and Woodwinds Hospital in Woodbury, Minnesota.

3."Hospital Personnel" means all employees and independently-contracted physicians or health-care providers, including, without limitation, nurses, physicians, social workers, counselors, technicians, admitting personnel, billing staff, security staff, and therapists. Hospital Personnel also means all volunteers who have or are likely to have direct contact with deaf or hard-of-hearing "Patients" or "Companions" as defined in this Agreement.

4."Qualified Sign Language Interpreter, "Oral Interpreter," or " Interpreter" means a person who is able to interpret competently, accurately, and impartially, both receptively and expressively, using any specialized terminology necessary for effective communication in a medical setting to a deaf or hard-of-hearing "Patient" or a "Companion as defined in this Agreement. Furthermore, as agreed to among the Parties, specifically the MDHR, the Minnesota Disability Law Center, the Blumenfelds, and HealthEast, to be a "Qualified Sign Language Interpreter," "Oral Interpreter," or "Interpreter," a person must have the following minimum certificate qualifications, which are current and up to date:

(a) a valid Certificate of Interpretation (CI) and Certificate of Transliteration (CT) from the Registry of Interpreters for the Deaf (RID); or a Comprehensive Skills Certificate (CSC) from RID; or

(b)a valid Level 4 or 5 Certificate from the National Association for the Deaf (NAD) . For purposes of this Agreement, the Parties agree that future certifications that are the equivalent of these NAD or RID certifications will be considered valid minimum certification, so long as those certifications are kept current.

5."Patient" shall be broadly construed to include any individual who is seeking or receiving health care services, including mental health services, from HealthEast, whether as an in-patient or an out-patient.

6."Companion" means a person who is deaf or hard of hearing and is one of the following:

(a)a person whom the Patient indicates should communicate with Hospital Personnel about the Patient, participate in any treatment decision, play a role in communicating the Patient's needs, condition, history, or symptoms to Hospital Personnel, or help the Patient act on the information, advice, or instructions provided by Hospital Personnel; or

(b)a person legally authorized to make health care decisions on behalf of the Patient, including but not limited to guardians, conservators, and persons holding powers of attorney; or

(c)such other person with whom the Hospital Personnel would ordinarily and regularly communicate with concerning the Patient's medical condition.

7."Effective Date of this Agreement" means the date this Agreement is last signed by the Parties.

8."TTYs" or "TDDs" mean devices that are used with a telephone to communicate with persons who are deaf or hard of hearing by typing and reading communications. See 28 C.F.R. § 36.104; 28 C.F.R. § 35.164.2

V. EQUITABLE RELIEF

A.GENERAL OBLIGATIONS

1.Nondiscrimination Based on Disability.

HealthEast will provide deaf or hard-of-hearing Patients and Companions with the full and equal enjoyment of services, privileges, facilities, advantages, and accommodations of HealthEast as required by this Agreement, the ADA, Section 504, and the MHRA.

2.Nondiscrimination by Association.

HealthEast will not deny equal services, accommodations, or other opportunities to any individual because of the known relationship of the person with someone who is deaf or hard of hearing.

3.Retaliation.

HealthEast will not retaliate against or coerce in any way any person who is trying to exercise his or her rights under this Agreement, the ADA, Section 504, or the MHRA.

B.PROVISIONS OF AUXILIARY AIDS AND SERVICES

1.Deaf and Hard-of-Hearing Coordinators.

HealthEast will designate a HealthEast System Deaf and Hard-of-Hearing Coordinator who will provide overall coordination for the implementation of this Agreement and for ensuring effective communication with deaf and hard-of-hearing Patients. In addition, HealthEast will designate a Deaf and Hard-of-Hearing Coordinator at each of the Hospitals who will work with the HealthEast System Deaf and Hard-of-Hearing Coordinator to implement this Agreement and to provide effective communication with deaf or hard-of-hearing Patients at his or her respective Hospital.

2 Citations to statutes and regulations for certain provisions of this Agreement are given to indicate the legal source of such provisions. They are not intended to and will not be used to limit, expand, modify, or interpret such provisions.

In addition to the Deaf and Hard-of-Hearing Coordinators, each Hospital will identify a group of employees and/or identify employees from one or more Hospital departments or functions ("Deaf and Hard-of-Hearing Response Team Members") so that at least one of these employees is always on call and coverage is 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 the auxiliary aids and services and Qualified Sign Language and Oral Interpreters. The Deaf and Hard-of-Hearing Response Team will know how to contact and provide interpreters including when requests are made after regular business hours. The Deaf and Hard-of-Hearing Response Team members will know where the auxiliary aids are stored and how to operate them. The Deaf and Hard-of-Hearing Coordinators will be responsible for their maintenance, repair, replacement, and distribution.

HealthEast will circulate and post broadly within the Hospitals the telephone number(s) , function, and office location(s) of the Deaf and Hard-of-Hearing Coordinators and the Deaf and Hard of- Hearing Response Team Members, including TTY telephone number, so that the Deaf and Hard-of-Hearing Response Team Members can be contacted twenty-four (24) hours a day by deaf or hard-of-hearing Patients and Companions in order to obtain the assistance of the Deaf and Hard-of-Hearing Response Team Members. The Deaf and Hard-of- Hearing Coordinators will coordinate with the Patient Advocate at each Hospital regarding the grievance process described in this Agreement.

HealthEast will circulate and post broadly within the Hospitals the telephone number for an on-site contact for Patients and/or Companions to contact for deaf and hard of hearing services. That telephone number will be answered by a Deaf and Hard of Hearing Coordinator or Deaf and Hard of Hearing Response Team Member 24 hours/day 7 days/week, 365 days/year. This posting also will identify the location of TTY's within the Hospital.

2.Auxiliary Aids and Services.

HealthEast will provide to deaf or hard-of-hearing Patients and Companions any auxiliary aids and services that may be necessary for effective communication.

3.General Assessment Criteria.

The determination of which auxiliary aids and services are necessary, and the timing, duration, and frequency with which they will be provided shall be made by Hospital Personnel at the time the deaf or hard-of-hearing Patient or Companion contacts the Hospital and requests an interpreter or other auxiliary aid or service. Hospital Personnel will perform and document, in the deaf or hard-of-hearing Patient's medical chart, a communication assessment as part of each initial in-patient assessment. The assessment 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; and

(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).

In the event that communication is not effective, Hospital Personnel will reassess which auxiliary aids and services are necessary, in consultation with the person with a disability, where possible.

4.Time for Assessment.

a.Scheduled Appointments.

Hospital Personnel will determine which auxiliary aids and services are necessary and the timing, duration, and frequency with which they will be provided, at the time an appointment is scheduled for the deaf or hard-of-hearing Patient. Hospital Personnel will perform and document, in the deaf or hard-of- hearing Patient's medical chart, a communication assessment as part of each initial in-patient assessment.

b.Nonscheduled Incidents.

The determination of which auxiliary aids and services are necessary, and the timing, duration, and frequency with which they will be provided shall be made by Hospital Personnel upon the arrival of the deaf or hard-of-hearing Patient or Companion at the Hospital. Hospital Personnel will perform and document, in the deaf or hard-of-hearing Patient's medical chart, a communication assessment as part of each initial in-patient assessment.

5 .Continuation of Provision of Auxiliary Aids and Services.

After conducting the General Assessment described in this Agreement, HealthEast will continue to provide auxiliary aids or services to the deaf or hard-of-hearing Patient or his or her Companion during the entire period of hospitalization and subsequent visits without requiring subsequent requests for the auxiliary aids or services by the Patient or Companion. Hospital Personnel will keep records that reflect the ongoing provision of auxiliary aids and services to deaf or hard-of-hearing Patients and Companions, such as notations in the Patients medical charts.

6.Medical Concerns.

Nothing in this Agreement will require that an electronic device or equipment constituting an auxiliary aid to be used when or where its use may interfere with medical or monitoring equipment or may otherwise constitute a threat to any Patient's medical condition.

7.Determination not to Provide Auxiliary Aids or Services.

If, after conducting the General Assessment described in this Agreement, HealthEast determines that the circumstances do not warrant provision of an auxiliary aid or service, Hospital Personnel will so advise the person requesting the auxiliary aid or service and will document the date and time of the denial, the name and title of the Hospital Personnel who made the determination, and the basis for the determination. A copy of this documentation will be provided to the deaf or hard-of-hearing Patient (or Companion, if applicable); will be maintained with the Auxiliary Aid and Service Log described in this Agreement; and will be placed in the Patient's medical chart.

8.Declining Interpreters or Auxiliary Aids.

As set forth throughout this Agreement, HealthEast agrees to provide auxiliary aids and services, including Qualified Sign Language Interpreters to deaf and hard of hearing Patients and Companions. The Parties recognize that certain situations may arise in which a Patient or Companion voluntarily refuses the use of a sign language interpreter or auxiliary aid after being fully informed of the availability of these services (at no charge to them. In the interest of Patient rights, the Parties agree that this Agreement does not require HealthEast to force a Patient to use an auxiliary aid or sign language interpreter unless the health care provider determines that effective communication cannot be achieved without an interpreter. If a Patient or Companion voluntarily refuses an auxiliary aid or sign language interpreter after his or her right to receive those services has been fully explained via an appropriate mode of communication, HealthEast may ask the Patient to sign a form to document the Patient's refusal. However, under no circumstance shall HealthEast utilize a form to discourage a Patient or Companion from receiving the use of a sign language interpreter or auxiliary aid or because the Hospital is unable to provide an interpreter or locate an appropriate auxiliary aid. Any efforts by HealthEast to discourage the use of a sign language interpreter or auxiliary aid shall be considered a violation of this Agreement.

9.Auxiliary Aid and Service Log.

HealthEast will keep a log of auxiliary aids and services it provides. The log shall be incorporated into the Compliance Reports as described in this Agreement and shall include the following information:

(a) the time and date each auxiliary aid or service is provided;

(b)the time and date a request is made for an auxiliary aid or service by a Patient or Companion (if a request is made by a Patient or Companion);

(c)the time and date hospital staff requests an auxiliary aid or service;

(d)a means of identifying the deaf or hard-of-hearing Patient (and Companion, if applicable);

(e)the time and date of the scheduled appointment (if a scheduled appointment was made);

(f)the nature of the auxiliary aid or service provided, or a statement that the auxiliary aid or service was not provided and the reason why it was not provided; and

(g) date of each interpreter refusal by a Patient or Companion; the reason for refusal, if provided by Patient or Companion; and a means of identifying the Patient or Companion. As part of the Auxiliary Aid and Service Log, HealthEast will also collect information regarding the response times for each request for an interpreter, as well as the qualifications (certification levels) of each interpreter who responds to a request to interpret. Such logs will be retained by HealthEast for at least two (2) years.

10.Grievance Resolution.

HealthEast will use its current Patient Grievance Policy and Process for the resolution of grievances raised by deaf or hard-of-hearing Patients and Companions regarding effective communication. HealthEast will notify deaf and hard-of-hearing Patients or Companions of HealthEast grievance resolution system, to whom grievances should be made, and the right to receive a written response to the grievance.

HealthEast will use the Deaf and Hard-of-Hearing Coordinators, the Deaf and Hard-of-Hearing Response Team Members, and other appropriate Hospital Personnel to respond to and address any grievances raised by deaf or hard-of-hearing Patients and Companions regarding effective communication as soon as reasonably possible, with a goal of resolving all such matters raised while the Patient is in the Hospital so that effective communication is provided while the Patient is in the Hospital. If the grievance is not resolved during the hospitalization, HealthEast will promptly provide the deaf or hard-of-hearing Patient and/or Companion a written response to the grievance consistent with HealthEast's grievance policy. HealthEast will maintain records of all grievances regarding effective communication with deaf or hard-of hearing Patients and Companions including copies of all grievances and non-peer-review notes reflecting oral grievances, made to HealthEast and actions taken with respect thereto for at least two (2) years from the effective date of this Agreement.

11.Prohibition of Surcharges.

All auxiliary aids and services required by this Agreement, the ADA, Section 504, and/or the MHRA will be provided free of charge to the deaf or hard-of-hearing Patient and/or Companion.

12.Notice of Available Auxiliary Aids or Services to Individuals who do not Request Such Aids or Services.

If a deaf or hard-of-hearing Patient or Companion does not request auxiliary aids or services, but Hospital Personnel have reason to believe, after conducting the General Assessment described in this Agreement, that such person would benefit from auxiliary aids or services for effective communication, HealthEast will specifically inform the deaf or hard-of-hearing Patient and/or Companion that auxiliary aids and services are available free of charge.

13.Notification Concerning Need for Auxiliary Aids or Services.

HealthEast will take appropriate steps to ensure that all Hospital Personnel having contact with a deaf or hard-of-hearing Patient and/or Companion are made aware of such person's need for auxiliary aids or services so that effective communication with such person will be achieved.

14.Data Collection; Monitoring of Performance; Feedback Forms.

HealthEast will collect data on the effectiveness of the auxiliary aid and service provided and the performance of a sign language interpreter. HealthEast will also prepare a form requesting feedback concerning the timeliness and effectiveness of interpreter services and other auxiliary aids and services. Such feedback form shall be provided to each deaf or hard-of-hearing Patient or Companion who was provided an interpreter or other auxiliary aid or service. HealthEast will develop a convenient process to allow the Patient or Companion to complete and return the feedback forms. Outpatients who receive services on an ongoing basis need not be presented with a feedback form after every visit. HealthEast shall use the completed feedback forms for monitoring and evaluating the performance of each interpreter and the aids and services it provides to Patients and Companions. HealthEast shall maintain the completed feedback forms for two (2) years from the effective date of this Agreement.

C.PROVISION OF SIGN LANGUAGE INTERPRETERS AND ORAL INTERPRETERS.

1.Circumstances under which Interpreters will be Provided.

As necessary for effective communication, HealthEast will provide Qualified Sign Language Interpreters to deaf or hard-of-hearing Patients and Companions whose primary means of communication is sign language. As necessary for effective communication, HealthEast will also provide Qualified Oral Interpreters to deaf or hard-of-hearing Patients and Companions who rely primarily on lip reading. The following are examples of circumstances when it may be necessary to provide interpreters:

(a)determination of Patient's medical, psychiatric, psycho social, nutritional, and functional history or description of condition;

(b)provision of Patient's rights, informed consent, or permission for treatment, and current condition;

(c)determination and explanation of Patient's diagnosis or prognosis, and current condition;

(d)explanation of procedures, tests, treatment, treatment options, or surgery;

(e)explanation of medications prescribed (such as dosage, instructions for how and when the medication is to be taken and side effects or food or drug interactions);

(f)explanation regarding follow-up treatments, therapies, test results, or recovery;

(g)blood donations or aphaeresis (removal of blood components) ;

(h)discharge planning and discharge instructions;

(I)provision of mental health evaluations, group and individual therapy, counseling, and other therapeutic activities, including but not limited to grief counseling and crisis intervention;

(j) explanation of complex billing or insurance issues that may arise;

(k)educational presentations, such as classes concerning birthing, nutrition, CPR, and weight management;

(1)religious services and spiritual counseling;

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

(n)any other circumstances in which a Qualified Sign Language Interpreter is necessary to ensure a Patient's rights provided by law.

2.Provision of Sign Language Interpreters Throughout a Hospitalization.

During a hospitalization, it will not be necessary for the Patient to renew the request for a sign language or other auxiliary aid or service. HealthEast will provide notice to all deaf or hard-of-hearing Patients and Companions of its policy to provide sign language interpreters and other auxiliary aids and services throughout a hospitalization without the need for continual separate requests for such aids and services. HealthEast will make sign language interpreters available during a hospitalization in the circumstances set forth in this Agreement.

3.Method for Obtaining Sign Language Interpreters.

HealthEast will hire one or more Qualified Sign Language Interpreters ("Staff Interpreters") to be available twenty-four (24) hours per day and/or enter into one or more written contracts with interpreter service providers to provide Qualified Sign Language and Oral Interpreters ("Contract Interpreters") at the request of HealthEast. The agreements with Contract Interpreters must specifically state that only Qualified Sign Language Interpreters, Oral Interpreters, and Interpreters as defined in this Agreement, will be utilized by HealthEast and that the Contract Interpreters agree to provide only such interpreters who are creditable as required by this Agreement to HealthEast.

HealthEast may, but has no obligation to, satisfy its sign language interpreter obligations under this Agreement by hiring qualified Staff Interpreters. Staff Interpreters must also meet the definition of Qualified Sign Language Interpreters, Oral Interpreters, and Interpreters as defined in this Agreement. Deaf or hard-of-hearing Patients and Companions who are provided with Staff Interpreters must have the same level of coverage, for both duration and frequency, as HealthEast is otherwise obligated to provide under this Agreement. HealthEast may assign other duties to Staff Interpreters, but the Staff Interpreters' performance of those other duties will not excuse HealthEast's requirements under this Agreement.

HealthEast must maintain a policy and practice for providing interpreters on a twenty-four (24) hour/seven (7) days a week basis, which must include designating one or more persons in each of the Hospitals who are responsible on a twenty-four (24) hour per day basis for making all arrangements necessary for providing Qualified Sign Language Interpreters when they are requested by deaf or hard-of-hearing Patients or Companions. The Deaf and Hard of- Hearing Coordinators and Response Team Members described in this Agreement can serve in this function.

4.Qualification Records.

HealthEast will be responsible for ensuring that only Qualified Sign Language Interpreters, Oral Interpreters, and Interpreters as defined in this Agreement are used in the Hospitals. HealthEast will make proof of the current qualifications of the Qualified Sign Language Interpreters, including Staff Interpreters and Contract Interpreters who provide services or who are scheduled to provide services to a particular deaf or hard-of-hearing Patient available for examination by that deaf or hard-of-hearing Patient and/or Companion within two (2) business days following a request by such Patient or Companion.

5.Provision of Interpreters in a Timely Manner.

a.Non-scheduled Interpreter Requests.

HealthEast will meet the following time standards for providing Qualified Sign Language Interpreters to deaf or hard of- hearing Patients and/or Companions in non-scheduled incidents:

(1)HealthEast will maintain a response time of one (1) hour at least eighty percent (80%) of non-scheduled interpreter requests and of two (2) hours in one hundred percent (100%) of nonscheduled interpreter requests.

(2)The response time will be measured from the time beginning ten (10) minutes after an interpreter is requested by a Patient or Companion who is deaf or hard of hearing and ending when the interpreter begins interpreting for the Patient or Companion.

(3)In the event of Force majeure events, the time periods for non-scheduled interpreter requests shall not apply. Force majeure events are events outside the reasonable control of HealthEast, the Contract Interpreter, or the interpreter called to respond, including but not limited to weather conditions and other "Acts of God," unanticipated illness or injury of the interpreter, and unanticipated transportation problems.

(4)Hospital Personnel will make requests for a Staff or Contract Interpreters within ten (10) minutes of the time a request is made for an interpreter by a Patient or Companion.

(5)"Non-scheduled Interpreter Requests" means a request for an interpreter which is made during the appearance at the Hospital by a deaf or hard-of-hearing Patient or Companion for examinations or treatment that was not scheduled prior to the time such Patient or Companion came to the Hospital or when the Hospital receives notice that a deaf or hard-of-hearing Patient or Companion is on his or her way to the emergency room of the hospital.

(6)If an interpreter is called for the nonscheduled event and then fails to appear, HealthEast will take whatever additional actions are necessary to make a Qualified Sign Language Interpreter available to the Patient and/or Companion.

b. Scheduled Incidents.

For scheduled events, HealthEast will make a Qualified Sign Language Interpreter available at the time of the scheduled appointment. If an interpreter fails to appear for the scheduled appointment, HealthEast will take whatever additional actions are necessary to make a Qualified Sign Language Interpreter available to the Patient and/or Companion.

c.Modification of Performance Standards.

In the event that the response time standards described in this Agreement cannot be maintained despite HealthEast's good-faith efforts, HealthEast is entitled to request the consent of the United States, the State of Minnesota, and the Blumenfelds to such modification of the response time standards as may be reasonable under the circumstances. The United States, the State of Minnesota, and the Blumenfelds will consider any such request reasonably and in good faith, and any such modification to which HealthEast, the United States, the State of Minnesota, and Blumenfelds agree will be memorialized as an amendment to this Agreement.

d.Compliance with Applicable Laws.

The consent of the United States and the State of Minnesota in this Agreement does not affect HealthEast's independent responsibilities under any applicable federal, state, or local laws or regulations.

e. Notice to Deaf and Hard-of-Hearing Patients and Companions.

As soon as Hospital Personnel have determined that a Qualified Sign Language Interpreter is necessary for effective communication with a deaf or hard-of-hearing Patient or Companion, HealthEast will inform such a person of the current status of efforts being taken to secure a Qualified Sign Language Interpreter on his or her behalf. HealthEast will provide additional updates to the Patient or Companion as necessary until a Qualified Sign Language Interpreter is secured. Notification of efforts to secure a Qualified Sign Language Interpreter does not lessen HealthEast's obligation to provide Qualified Sign Language Interpreters in a timely manner as required by this Agreement.

f.Other means of Communication.

HealthEast agrees that between the time an interpreter is requested and the time an interpreter arrives at the Hospital to interpret, Hospital Personnel will continue to try to communicate with the deaf or hard-of-hearing Patient or Companion for such purposes and to the same extent as they would have communicated with the person but for the disability, using all available methods of communication, including using sign language pictographs. This provision in no way lessens HealthEast's obligation to provide Qualified Sign Language Interpreters in a timely manner as required by this Agreement.

g.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, HealthEast may never require or coerce a family member, case manager, advocate, or friend of a deaf or hard-of-hearing Patient or Companion to interpret or facilitate communications between Hospital Personnel and such Patient or Companion. In any case, such person may be used to interpret or facilitate communication only if the deaf or hard-of-hearing Patient or Companion does not object; if such person wishes to provide such assistance; if such use is necessary or appropriate under the circumstances, giving appropriate consideration to any privacy issues that may arise; and if documentation of Patient's decision is recorded in the Patient's chart or records. This provision in no way lessens Health East's obligation to provide appropriate auxiliary aids and services as required under this Settlement Agreement.

D.NOTICE TO COMMUNITY

1.Policy Statement.

Within thirty (30) days of the effective date of this Agreement, HealthEast will post and maintain at all hospital admitting stations, emergency departments, and wherever a Patient's Bill of Rights is required by law to be posted signs of conspicuous size and print, which shall state to the following effect:

"Sign language and oral interpreters, TTY' s and other auxiliary aids and services are available free of charge to people who are deaf or hard-of-hearing For assistance, please contact any Hospital personnel or the Information Office at ___________(voice/TTY) , room _____________"

These signs will include the international symbols for "interpreters" and "TTYs."

2.Patient and Visitor Information Brochures.

HealthEast will include in all future printings of its Patient and Visitor Information Brochures and all similar publications a statement to the following effect:

If you are deaf or hard of hearing, please let us know. We provide many free services including: Sign language interpreters; oral interpreters; TTYs; Telephone amplifiers; Note takers; Written materials; Other services. We also provide these free services to your family or to other people who may be deaf or hard of hearing, while they are with you in the hospital. Ask us for help or contact [insert hospital contact information here].

3.Website.

HealthEast will include on any website it maintains the following statement: Free sign language and oral interpreters, TTYs, and other services are available to deaf and hard-of-hearing persons. Ask us for help or contact [insert hospital contact information here].

4.Format of Notices.

Within ninety (90) days of the effective date of this Agreement, HealthEast will make the following written materials it provides to hearing Patients available in American Sign Language (ASL) using videotapes, DVD, or CD-ROM format:

(a) the patient's bill of rights;

(b) health care directives pamphlet;

(c) information regarding HealthEast' s policies and procedures governing free sign language interpreter services, including a summary of the rights provided by this Agreement, and HealthEast's feedback form, described in this Agreement;

(d) grievance resolution procedures; and

(e) notice of privacy practices.

E.NOTICE TO HOSPITAL PERSONNEL AND PHYSICIANS.

HealthEast will publish, in an appropriate form, a written statement regarding HealthEast's policy for effective communication with persons who are deaf or hard of hearing. The policy statement should include, but is not limited to, language to the following effect:

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

HealthEast will distribute, by mail, email, or other means, this statement within thirty (30) days of the Effective Date of this Agreement to all Hospital Personnel and medical and allied health staff members. HealthEast will also distribute this statement, by mail, email, or other means, to all new Hospital Personnel and medical and allied health staff members upon their employment or affiliation with HealthEast. In addition, this statement will also be distributed, by mail, email, or other means, to all Hospital Personnel on an annual basis.

F.TRAINING

1.Training of Deaf and Hard of Hearing Coordinators.

As set forth in Section V.B.l above, HealthEast will designate a system-wide deaf and hard of hearing coordinator as well as deaf and hard of hearing coordinators at each of the Hospitals. Within sixty (60) days of the effective date of this Agreement, HealthEast will complete mandatory training for its system-wide deaf and hard of hearing coordinator, for the deaf and hard of hearing coordinators at the Hospitals and for the deaf and hard of hearing response team members as described in Section V.B.l above. This training will include, but not be limited to, training in the following areas:

(a) The health care needs of the deaf and hard-of-hearing Patient or Companion;

(b) The various degrees of hearing impairment, language, and cultural diversity in the deaf and hard-of-hearing 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 hard of hearing and its relationship to interaction with hearing healthcare 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 hospitals;

(h) The proper use and role of Qualified Sign Language Interpreters;

(I) Making and receiving calls through TTYs and the Minnesota Relay Service;

(1) The hospital's grievance system described above;

(k) Hospital policies impacting deaf or hard-of -hearing Patients and their Companions; and

(1) Hospital and system-wide resources for assisting deaf or hard-of-hearing Patients and their Companions.

2.Training of Other Key Personnel.

Within one hundred twenty (120) days of the effective date of this Agreement, HealthEast will provide training of approximately 1,200 employees regarding care and resources for the deaf or hard of- hearing Patients and their Companions, to all emergency department staff, all telephone operators, all admitting department personnel, all health unit coordinators, all social workers, all associate administrators and hospital chief executive officers, all maternity personnel, all operating room personnel, all house supervisors, all clinical directors, all resident/hospital physicians, all radiology staff with Patient contact, all laboratory personnel with Patient contact, all engineering personnel, all security personnel, and volunteers assigned to the surgery waiting room and information desks. This training may be conducted "live" or by videotape. The training will address the special needs of deaf or hard-of-hearing Patients and Companions that will include the following objectives:

(a) The requirements of federal and Minnesota law to ensure effective communication with deaf or hard-of-hearing Patients;

(b) An overview of the equitable relief agreed upon by the terms of this Agreement;

(c) The importance of the use of qualified interpreters and auxiliary aids and services in providing care to deaf or hard-of-hearing Patients;

(d) The types of communication, modes and types of auxiliary aids and services available;

(e) The identity and roles of the system-wide and hospital-based deaf and hard of hearing coordinators and deaf and hard of hearing response team members;

(f) HealthEast policies on assessing the communication needs of deaf or hard-of-hearing Patients;

(g) The use of the TTY machines and the Minnesota Relay Service; and

(h) HealthEast procedures implemented to comply with the terms of this Agreement.

Annually thereafter, HealthEast will provide refresher training to all hospital employees that will address these issues and additional issues that might arise and impact deaf or hard-of-hearing Patients and Companions. HealthEast also will incorporate training of these issues into its new-employee orientation.

3.Training of Substantially All Employees in the Identified Categories.

HealthEast will use its best efforts to provide the training identified above in Sections 1 and 2 to substantially all of those employees within the identified time frame. The parties recognize that certain employees may be on leave of absence or in similar situations that may prevent those employees from being trained within the identified time frame.

4.Training Attendance Sheets.

HealthEast will maintain documentation of all training conducted pursuant to these provisions that will include the names and respective job titles of the participants, as well as the date and location, if applicable, of the training session.

5.Training of Physicians, Surgeons and Allied Health Professionals.

Each year, HealthEast will conduct one or more training sessions on the communication needs of persons who are deaf or hard of hearing and will invite all physicians, surgeons, and Alicia health professionals to attend. HealthEast will make training video tapes available that contain substantially similar information about assisting deaf or hard-of-hearing Patients and Companions to its independently-contracted physicians, surgeons, and allied health professionals upon their request. This training may take the form of a "Grand Rounds" session for physicians or may take the form of advising physicians, surgeons, and allied health professionals of the importance of assisting deaf or hard-of-hearing Patients and their Companions on issues that may impact their medical care and treatment. This also will provide information to physicians, surgeons, and allied health professionals about the availability of video tapes pertaining to this training.

6.Written Materials.

Within sixty (60) days of the effective date of this Agreement, HealthEast will distribute, by mail, email, or other means, a set of materials to all physicians, surgeons, and allied health professionals. These materials will contain the following: a. HealthEast's policies and relevant forms regarding interpreter and other services available to deaf or hard-of-hearing Patients and their Companions; and b. A request that physicians, surgeons and allied health professionals notify HealthEast of those deaf and other hearing Patients and Companions as soon they schedule admissions, tests, surgeries, or other healthcare services at one of the Hospitals.

VI. REPORTING, MONITORING, AND VIOLATIONS

A.REPORTS

1.Compliance Reports

On the dates detailed below, HealthEast will provide a written report ("Compliance Report") to the U.S. Attorney, the MDHR, and the Blumenfelds regarding the status of its compliance with this Agreement. The Compliance Report will include data relevant to the Agreement, including but not limited to:

      1. the number of requests for Qualified Sign Language Interpreters received by HealthEast at the Hospitals by deaf or hard-of-hearing Patients and Companions;
      2. the number of times a Qualified Sign Language Interpreter was provided by HealthEast;
      3. the number of times HealthEast denied a request for a Qualified Sign Language Interpreter and the reasons for the denial;
      4. the number of times HealthEast requested a Qualified Sign Language Interpreter but the interpreter failed to appear and, for each such situation, the reasons for the failure;
      5. .in the case of a "non-scheduled interpreter request" as defined in this Agreement, the date and the time a Qualified Sign Language Interpreter is requested by a deaf or hard-of-hearing Patient or Companion and the date and time the interpreter actually began interpreting for such Patient or Companion;
      6. for "scheduled interpreter requests," as discussed in this Agreement, HealthEast shall report the time the interpreter arrived;
      7. an explanation of the reasons for the delay in obtaining a Qualified Sign Language Interpreter in those cases where the response time, as defined by this Agreement, is more than one (1) hour for any request; and
      8. the number of grievances received by HealthEast at the Hospitals by deaf or hard-of-hearing Patients and Companions regarding auxiliary aids and services and/or effective communication and a notation as to whether or not HealthEast considers the matter (s) resolved.

HealthEast will submit the Compliance Report to the U.S. Attorney, the MDHR, and the Blumenfelds on or before the following dates: Three (3) months after the Effective Date (due within thirty (30) days of the end of that period) and at six-month intervals thereafter (due thirty (30) days of the end of each of those periods) for a period of two years.

HealthEast 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 and the MDHR. HealthEast shall keep the records throughout the two-year reporting period and shall hold on to those records for an additional year.

The reporting requirements of this Agreement do not require HealthEast to disclose or make available protected health information as defined in 42 C.F.R. 164.501, or confidential patient information as defined by Minnesota law.

The MDHR, the Department, and the U. S. Attorney are bound by various state and/or federal laws concerning public access to information.

2.Notification

For the two years following the effective date of this Agreement, HealthEast will notify the U.S. Attorney, the MDHR, and the Blumenfelds if any person commences a lawsuit or administrative charge or files a grievance or claim with HealthEast alleging that HealthEast failed to provide auxiliary aids and services to deaf or hard-of-hearing 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 thirty (30) days of the date HealthEast received notice of the allegation and will include, at a minimum, the nature of the allegation, a code identifying the person making the allegation, and any non-privileged documentation possessed by HealthEast relevant to the allegation. HealthEast will reference this provision of the Agreement in the notifications.

B.DISPUTE RESOLUTION PROCESS

In the event that the United States, the State of Minnesota, the Blumenfelds, and/or HealthEast have a dispute about any of the terms of this Agreement, the Parties agree to attempt to negotiate a settlement of such dispute in good faith.

In the event that the United States, the State of Minnesota, or the Blumenfelds believe that HealthEast has violated any provision of this Agreement, the United States, the State of Minnesota, or the Blumenfelds shall notify HealthEast and enter into informal discussions to address the alleged violation. The Parties agree to attempt to address alleged violations in good faith. If the Parties cannot in good faith address the alleged violation during the informal process, the United States, the State of Minnesota, or the Blumenfelds may serve on HealthEast a. Notice of Violation, which shall detail how HealthEast has violated the Agreement, the provisions of the Agreement allegedly violated, and a suggested course of action for remedying the alleged violation. HealthEast shall have forty-five (45) days after the date it receives the Notice of Violation to cure the violation, but any violation that prevents or restricts a deaf or hard-of-hearing Patient from receiving urgent health care services must be cured without delay.

If HealthEast cures the violation as provided above, the matter will no longer be considered a violation of this Agreement and no additional relief will be necessary. Within twenty business (20) days after the date HealthEast receives a Notice of Violation, HealthEast shall respond in writing to all the Parties indicating whether it is attempting to cure the alleged violation, whether it disagrees that a violation has occurred, or otherwise responding to the Notice of Violation. If HealthEast, in good faith, disagrees that a violation has occurred, the Parties will meet to resolve the disagreement in good faith and the cure period shall be extended by the time period that the Parties are meeting to resolve the disagreement over the alleged violation, but not to exceed thirty (30) days.

If after forty-five (45) days fol1owing the date HealthEast receives the Notice of Violation, the violation has not been satisfactorily cured by HealthEast, the United States, the State of Minnesota, or the Blumenfelds may commence an action for appropriate relief in U.S. District Court for the District of Minnesota.

This process is in addition to the process provided in the Minnesota Human Rights Act, Minn. Stat. Chapter 363A, and nothing herein prevents the State of Minnesota or its Department of Human Rights from using the processes in the Minnesota Human Rights Act for alleged violations of the Act.

VII.COMPENSATORY DAMAGES

A.COMPENSATORY DAMAGES TO AGGRIEVED PARTIES

In settlement of claims by the Blumenfelds for compensatory damages alleged, HealthEast has agreed to pay Eric and Katherine Blumenfeld $26,000. Form 1099s shall be issued to the Blumenfelds in the amounts of the payments set forth above, and they shall be solely responsible for the payment of any and all taxes due in connection with such payments.

B.RELEASES

To receive the monetary relief provided for under this Agreement, the Blumenfelds will each complete and execute a release to be agreed upon by HealthEast and the Blumenfelds.

VIII.MISCELLANEOUS PROVISIONS

A.CHANGING CIRCUMSTANCES

During the Term of this Agreement, there may be a change in circumstances such as, for example and without limitation, an increased or decreased availability of Qualified Sign Language Interpreters or developments in technology to assist or improve communications with persons who are deaf or hard of hearing. If any Party to this Agreement determines that such changes create opportunities for communicating with deaf or hard-of-hearing Patients and Companions more efficiently or effectively than is required under this Agreement, or create difficulties not presently contemplated in the provision of auxiliary aids and services, the Party may propose changes to this Agreement by presenting written notice to the other Parties. Such changes will then only be incorporated in this Agreement if all the Parties to this Agreement grant their approval, which will not be unreasonably withheld. The Parties will negotiate in good faith.

B.BINDING.

This Agreement is final and binding on the Parties including all principals, agents, executors, administrators, representatives, successors in interest, beneficiaries, assigns, heirs, and legal representatives thereof. Each Party has a duty to so inform any such successor in interest.

C.NON-WAIVER .

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

D.SEVERABILITY.

In the event that a court determines that any provision of this Agreement is unenforceable, such provision will be severed from this Agreement and all other provisions will remain valid and enforceable, provided however that if the severance of any such provision materially alters the rights or obligations of the Parties hereunder, the Parties will, through reasonable, good faith negotiations, agree upon such other amendments to this Agreement as may be necessary to restore the Parties as closely as possible to the relative rights and obligations initially intended by them hereunder.

E.NOTICES.

Any notice required under this Agreement will be provided to the following persons at the following addresses:

For the United States:

Chief, Civil Division
U.S. Attorney's Office
600 U.S. Courthouse
300 South Fourth Street
Minneapolis, MN 55415

For the State of Minnesota:

Commissioner, Minn. Dept. of Human Rights
Sibley Square by Mears Park
190 East Fifth Street, Suite 700
St. Paul, MN 55101

For the Blumenfelds:

Minnesota Disability Rights Center
Attn: Roderick J. Macpherson I11
430 First Avenue North #300
Minneapolis, MN 55401

For HealthEast:

Carol Beehler
System Director, Risk Management
HealthEast
1690 University Avenue West
Suite 480
St. Paul, MN 55104

Mark Whitmore, Esq.
Bassford Remele
33 So. Sixth St.
Suite 3800
Minneapolis, MN 55402

 

 

United States v. HealthEast
DOJ # 2004V00576
AND
State of Minnesota v. HealthEast
MDHR # 44836

Dated:
May 20, 2008
 

FRANK J. MAGILL, JR.
Acting United States
Attorney

____________________________
BY: GREGORY G. BROOKER
Assistant U.S. Attorney
Atty. Reg. No. 166066
600 U.S. Courthouse
300 South Fourth Street
Minneapolis, MN 55415
(612) 664-5689


    ATTORNEYS FOR UNITED STATES OF AMERICA


Dated:
May 14, 2008
 

MINNESOTA DEPARTMENT OF HUMAN
RIGHTS

_______________________________
By: VELMA J. KORBEL
COMMISSIONER


Dated:
May 7, 2008
  _______________________________
Katherine Blumenfeld


Dated:
5 /7/08
  _______________________________
Eric Blumenfeld


Dated:
May 7, 2008
 

MINNESOTA DISABILITY LAW CENTER

 

_______________________________
BY: RODERICK J. MACPHERSON III
Atty. Reg. no 66163
430 First Avenue North
Suite 300
Minneapolis, MN 55401

 

Attorneys for Katherine and Eric Blumenfeld

 

Dated:
May 15, 2008
 

HEALTHEAST

_______________________________
By: Timothy Hanson
HealthEast
President and Chief Executive
Officer
HealthEast
559 Capitol Blvd
St. Paul 55102

 

 

BASSFORD REMELE

_______________________________
BY: MARK. R. WHITMORE
Atty Reg No. 232439
33 So. Sixth St.
Suite 3800
Minneapolis, MN 55402
(612) 333-3000

 

Attorneys for HealthEast


 


 




October 09, 2008