SETTLEMENT AGREEMENT

BETWEEN

THE UNITED STATES OF AMERICA

AND

INOVA HEALTH CARE SERVICES

D.J. No. 202-79-136



I.    BACKGROUND AND PARTIES

A.     The parties to this Settlement Agreement (“Agreement”) are the United States of America and Inova Health Care Services on behalf and in connection with the operations of Inova Fairfax Hospital, 3300 Gallows Road, Falls Church, Virginia 22042 (hereinafter, referred to as “Inova Fairfax” or “Hospital”).  The Agreement covers and applies to the “Inova Fairfax campus,” comprising Inova Fairfax Hospital, Inova Fairfax Hospital Women’s Center/Inova Fairfax Hospital for Children, and Inova Heart and Vascular Institute, located at 3300 Gallows Road, Falls Church, Virginia  22042.

B.     This matter was initiated by a complaint filed with the United States Department of Justice (the “Department”) against Inova Fairfax, D.J. No. 202-79-136, alleging violations of title III of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12181-12189, and its implementing regulation, 28 C.F.R. Part 36. 

C.    The Department is authorized to investigate alleged violations of title III of the ADA, and to bring a civil action in federal court if the Department is unable to secure voluntary compliance, 42 U.S.C. § 12188(b). 

D.    Inova Fairfax is a place of public accommodation covered by title III of the ADA. 42 U.S.C. § 12181(7)(F).

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

F.    It is the Department’s position that Inova Fairfax violated title III of the ADA and its implementing regulation by discriminating against persons who are deaf and those related to or associated with them.  Specifically, it is alleged, inter alia, that Inova Fairfax failed to timely provide a sign language interpreter as requested, and where necessary for effective communication, for Complainant, who is deaf, when she accompanied her daughter to Inova Fairfax after her daughter was involved in a car accident.  And, further, it is alleged that by failing to secure timely qualified interpreting services, Inova Fairfax improperly imposed communication responsibilities on Complainant’s daughter, who, in the course of her emergency treatment, also had to act as interpreter for her mother.  Inova Fairfax denies that it has violated any legal or other obligations.

G.    As a result of ongoing discussions, the United States and Inova Fairfax have reached agreement that it is in the parties’ best interest, and the United States believes that it is in the public interest, to resolve this matter according to the terms set out below.  This Agreement shall not be construed as an admission of liability by Inova Fairfax.


II.   DEFINITIONS

A.     The term “appropriate 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 systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, TTY’s, large print materials, acquisition or modification of equipment or devices, and other methods of delivering effective communication that may have come into use or will come into existence in the future.

B.    The term “Companion” means: a person who is deaf or hard of hearing and is either (a) legally authorized to make health care decisions on behalf of the patient; (b) designated by the patient to communicate, or circumstances otherwise indicate should communicate, with Hospital personnel and/or physicians about the patient, the patient’s needs, condition, history, or symptoms; (c) authorized to help the patient act on information or instructions by Hospital personnel and/or physicians; or (d) the patient’s next of kin or health care surrogate or such person with whom Hospital personnel and/or physicians ordinarily and regularly communicate concerning the patient’s medical condition and medical advice.

C.     The term “Patient” means: a person who is deaf or hard of hearing and is seeking and/or receiving medical services at Inova Fairfax.

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

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


III.    TERMS OF AGREEMENT

A.    Design and Implementation of Program

1.     Within ninety (90) days of the effective date of this Agreement, Inova Fairfax will design and implement a program (Program) that will effectively implement the provisions of this Agreement, including without limitation:

(a)    Developing, coordinating and overseeing the development of specific procedures to fully implement this Agreement;

(b)    Scheduling, announcing and promoting all training required by this Agreement;

(c)    Drafting, maintaining and providing all reports required by this Agreement; and

(d)    Modifying medical and intake forms as necessary to ensure that once a Patient or Companion enters the Hospital, the Hospital makes the communication assessment required in this Agreement. 

2.    The Program will include, among other things:

(a)    The designation of the Patient Relations Office as the office within the Hospital that will maintain full information for the general public regarding access to and the operations of the Program.  The Patient Relations Office will supervise a combination voice/TTY telephone line or a dedicated TTY telephone line, will publicize its purpose and telephone number broadly within the Hospital and to the public, will respond to telephone inquiries during normal business hours and will maintain a recording system for inquiries received after normal business hours.

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

B.    Provision of Appropriate Auxiliary Aids and Services.

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

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

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

(b)    The individual’s communication skills and knowledge;

(c)    The patient’s health status or changes thereto;

(d)    The Patient’s and/or Companion’s request for or statement of need for an interpreter;

(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.

3.    Time for Assessment.  The determination of which appropriate auxiliary aids and services are necessary for effective communication with a Patient, and the timing, duration and frequency with which they will be provided, will begin, where feasible, at the time an appointment is scheduled, but no later than the arrival of the Patient at the Hospital.  Hospital personnel will perform and document in the Patient’s medical chart a communication assessment as part of each initial inpatient assessment.  The determination of which appropriate auxiliary aids and services are necessary for effective communication with a Companion, and the timing, duration and frequency with which they will be provided, will begin at the time a request for auxiliary aids or services by or for such person is made.  The Hospital shall reassess which appropriate auxiliary aids and services are necessary, in consultation with the Patient or Companion where possible, in the event that communication is not effective.

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

5.    Ongoing Relationships.  If a Patient or a Companion has an ongoing relationship with the Hospital involving scheduled successive visits to the Hospital, the Hospital will, where feasible, continue to provide the appropriate auxiliary aids or services without requiring a separate request for each successive visit.

6.    Medical Concerns. Nothing in this Agreement will require that an electronic device or equipment constituting an appropriate auxiliary aid be used when or where its use may interfere with medical or monitoring equipment or may otherwise constitute a threat to a Patient’s medical condition.  This provision in no way lessens the Hospital’s obligation to provide auxiliary aids and services as required under this Agreement.

7.    Determination Not to Provide Interpreter Service. If, after conducting a communication assessment, the Hospital determines that the circumstances do not warrant provision of an interpreter service, the Hospital shall so advise the person requesting the interpreter service and shall document the date and time of denial, the name and title of the Hospital personnel who made the determination, and the basis for the determination.  A copy of this document shall be provided to the Patient (and Companion, if applicable), and maintained with the log described in Section III.B.8, below.

8.    Maintenance of Log.  In conjunction with the implementation of the Program as set out in Section III.A., i.e., within ninety (90) days of the effective date of this Agreement, the Hospital will maintain a log of each request for an interpreter service, the Patient’s (and Companion’s, where applicable) name, the time and date of the scheduled appointment (if a scheduled appointment was made), the time and date the interpreter service was provided, or a statement that the interpreter service was not provided.  Such logs, and the documentation described in Section III.B.7, will be maintained by the Hospital, for a period of two years from the original request.

9.    Complaint Resolution.  The Hospital will maintain an effective complaint resolution mechanism regarding use of the Program by Patients and Companions and will maintain records of all complaints, whether oral or written, made to the Hospital and actions taken with respect thereto. The Hospital will notify deaf and hard of hearing persons of the Hospital’s complaint resolution mechanism, to whom complaints should be made, and the right to receive a written response to the complaint if requested. Copies of all complaints or notes reflecting oral complaints and the responses thereto will be maintained by the Hospital for a period of two years from the original request.  Upon request, the Hospital will provide the Patient and/or Companion a written response to the complaint in a timely manner.

10.    Prohibition of Surcharges. All appropriate auxiliary aids and services required by this Agreement will be provided free of charge to the Patient or Companion.

C.    Sign Language and Oral Interpreters

1.    The Hospital will provide qualified sign language interpreters to Patients and Companions whose primary means of communication is sign language, and qualified oral interpreters to such Patients and Companions who rely primarily on lip reading, as necessary for effective communication.

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

(a)    Determination of a Patient’s medical history or description of ailment or injury;

(b)    Provision of Patient’s rights, informed consent, or permission for treatment;

(c)    Diagnosis or prognosis of ailments or injuries;

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

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

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

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

(h)    Discharge planning and discharge instructions;

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

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

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

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

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

The foregoing list does not imply that an interpreter must always be provided in these circumstances.  Nor does it suggest that there are not other circumstances when it may be appropriate to provide interpreters for effective communication.

3.    Chosen Method for Obtaining Interpreters. The Hospital will continue to maintain one or more contracts with an interpreter service provider or providers (“IS Provider”) to provide qualified sign language and oral interpreters at the request of the Hospital, and in accordance with the requirements of this Agreement.  In lieu of utilizing a contracted IS Provider, the Hospital may hire one or more qualified sign language interpreters to be available 24 hours per day.

(a)    The Hospital and IS Provider may contract to provide on-site interpreters or interpretive services through the use of interactive audio/video conference system technology.  When choosing the interactive audio/video conference system, the Hospital agrees to take appropriate steps whenever necessary to make the system effective, such as dedicating high-speed phone lines in appropriate locations for quick connection and clear picture, protecting patient confidentiality, and training staff in how to use it.

(b)    The Hospital may, but has no obligation to, satisfy its obligations under this Agreement by hiring qualified staff and/or contract 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, but the staff interpreters’ performance of those other duties will not excuse the Hospital’s requirements under this Agreement.

4.    Provision of Interpreters in a Timely Manner.

(a)    Non-scheduled incidents. For “non-scheduled incidents,” the Hospital shall contact its interpreter service provider as soon as practicable, which in most instances will be within 15 minutes of the Patient’s or Companion’s request to the Hospital.  However, the time within which the interpreter is provided shall be no more than (a) two hours from the time the call is placed to the interpreter service if the service is provided through a contract interpreting service or a staff interpreter who is located off-site at the time the need arises or (b) 30 minutes from the time the Patient’s or Companion’s request is made if the service is provided through an interactive audio/video conference system or an on-site staff interpreter.  “Non-scheduled incidents” are situations in which there are less than two hours (or less than four hours if a request is made between the hours of 8 p.m. and 8 a.m. or on a weekend or holiday) between the time when a Patient or a Companion makes a request for an interpreter and the time when the services of an interpreter are required.

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

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

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

7.    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 unavailable) of the current status of efforts being taken to secure a qualified interpreter on his or her behalf. Additional updates are to be provided thereafter as necessary until an interpreter is secured.  Notification of efforts to secure a qualified interpreter does not lessen the Hospital’s obligation to provide qualified interpreters in a timely manner as required by this Agreement.

8.    Other Means of Communication.  Between the time that an interpreter is requested and when an interpreter is made available, the Hospital will continue to try to communicate with the Patient or Companion for such purposes and to the same extent as they would have communicated with the person but for the disability, using all available methods of communication, particularly written notes or sign language pictographs.  If such alternate methods of communication result in “effective communication,” the Hospital is relieved of its obligation to continue efforts to seek out an interpreter for that communication.  However, this provision in no way lessens the Hospital’s obligation to provide qualified interpreters in a timely manner as required by this Agreement for other communications with the Patient or Companion where necessary for effective communication.

9.    Restricted Use of Certain Persons to Facilitate Communication. The Hospital may not require, coerce, or rely upon a family member, companion, case manager, advocate, or friend of a Patient or Companion to interpret or facilitate communications between Hospital personnel or physicians and such Patient or Companion.  However, such person may be used to interpret or facilitate communication if the Patient or Companion does not object, if such person wishes to provide such assistance and if such use is necessary or appropriate under the circumstances, giving appropriate consideration to any privacy issues that may arise.  This provision in no way lessens the Hospital’s obligation to provide appropriate auxiliary aids and services as required under this Agreement.

D.    Notice to Community.

1.    Policy Statement.  Within ninety (90) days of the effective date of this Agreement, the Hospital will post and maintain signs of conspicuous size and print at all Hospital admitting stations, the emergency department, and wherever a Patient’s Bill of Rights is required by law to be posted. Such signs will provide, generally:

Sign language and oral interpreters, TTY’s, and other auxiliary aids and services are available free of charge to patients, their family members, and companions who are deaf or hard of hearing. For assistance, please contact any Hospital personnel or the Patient Relations Office at ____________

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

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

To ensure effective communication with patients, their family members, and companions who are deaf or hard of hearing, we provide appropriate auxiliary aids and services free of charge, such as: sign language and oral interpreters, TTY’s, note takers, written materials, telephone handset amplifiers, assistive listening devices and systems, telephones compatible with hearing aids, closed caption decoders, and open and closed captioning of most Hospital programs. Please ask your nurse or other Hospital personnel for assistance, or contact the Patient Relations Office at ____________.

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

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

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

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

The Hospital will distribute this document within ninety (90) days of the effective date of this Agreement to all Hospital personnel with patient responsibility and affiliated physicians (physicians with practicing or admitting privileges), and to all new Hospital personnel with patient responsibility and newly affiliated physicians upon their employment or affiliation with the Hospital.  Thereafter, the Hospital will distribute this document to all Hospital personnel and affiliated physicians on an annual basis.

F.    Training of Hospital Personnel

The Hospital will provide mandatory in-service training 1, as set out below, to the following Hospital personnel.  This training will include the following objectives: to promptly identify communication needs and preferences of Patients and Companions; to secure as quickly as possible appropriate auxiliary aids and services (including, where necessary, qualified interpreter services); and to identify and recognize treatment- or Department-specific needs or issues that may arise (e.g., training on the use, when appropriate, of flash cards and pictographs in the Emergency Department to augment the effectiveness of communication while awaiting an interpreter; or training on methods to facilitate interaction between Patients and others, when appropriate, such as for group therapy sessions). 

1.    Emergency Department Personnel.  Within sixty (60) days of the effective date of this Agreement, and annually thereafter, the Hospital will provide special mandatory in-service training to Hospital personnel with patient responsibility who work or volunteer in the Emergency Department to address the special needs of deaf and hard of hearing Patients and Companions utilizing that department, and to ensure compliance with this Agreement, including, without limitation, Sections III.B.3 (Time For Assessment) and III.B.4 (Individual Notice in Absence of Request), and, where applicable, Section III.C.4 (Provision of Interpreters in a Timely Manner). 

1 For purposes of this Agreement, "in-service training" includes, without limitation, such means of training or familiarization of Hospital personnel as are customarily utilized by the Hospital, including, without limitation, written policies and procedures, videotapes, training materials, training sessions, seminars, conferences and the like.

2.    Hospital Personnel with Patient Responsibility.  Within one hundred eighty (180) days of the effective date of this Agreement, and annually thereafter, the Hospital will provide specialized mandatory in-service training to Hospital personnel with or likely to have patient responsibility, including, without limitation, the following categories and their equivalents:  nurses, nurses aides, therapists, social workers, and medical technicians. 

3.    Other Key Personnel.  Within one hundred eighty (180) days of the effective date of this Agreement, and annually thereafter, the Hospital will provide specialized mandatory in-service training to key personnel not otherwise trained as provided above, including: all clinical directors and nursing supervisors; all senior-level administrators; personnel who staff the Admission desk (or its equivalent for in-patient registration), the Central Registry desk (or its equivalent for out-patient registration), the General Information desk; all triage nurses and other triage professionals; administrative heads of each partment in which communication with Patients or their families and friends is likely to occur; desk clerks in units or departments where such individuals are likely to have communications with Patients or their families and friends; and personnel responsible for billing and insurance issues who routinely interact with Patients and Companions. 

4.    Operators.  All Hospital personnel who receive incoming telephone calls from the public will receive special instructions on using TTY’s to make and receive telephone calls and will receive training generally on the existence of the Program implemented by this Agreement, the contact information for the Patient Relations Office and/or the individuals knowledgeable about the Program, and the complaint resolution processes.

5.    Affiliated Physicians.

(i)    Training Sessions.  The Hospital will annually conduct one or more training sessions on the communication needs of persons who are deaf or hard of hearing, and will invite all physicians who are affiliated in any way with the Hospital (admitting or surgical privileges, etc.) to attend. The Hospital will provide training videotapes that contain substantially similar information to any affiliated physician upon request.

(ii)    Written materials.  Within ninety (90) days of the effective date of this Agreement, the Hospital will distribute a set of materials to all affiliated physicians. These materials will contain at least the following: the Hospital’s Policy Statement and any relevant forms; a description of the Hospital’s Program and a request that physician’s staff members notify the Hospital about Patients and Companions as soon as they schedule admissions, tests, surgeries or other health care services at the Hospital.

6.    Others.  The Hospital will develop and implement an internal program that will provide appropriate training to all Hospital personnel not trained under the preceding sections. This training will take place at such times as may be necessary to permit the Hospital to meet all of its obligations under this Agreement.

7.    New Personnel. For Hospital personnel hired after the initial training described herein, the Hospital will provide the training specified above within thirty (30) days after the individual’s commencement of service for the Hospital.  Such training must be comparable to training provided to specific departments as necessary.  A screening of a video of the original training will suffice to meet this obligation.  The Hospital shall maintain attendance sheets of all training conducted pursuant to this Agreement, which shall include the names and respective job titles of the attendees, as well as the date, time and location of the training session.

G.    Miscellaneous Injunctive Relief.

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

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

H.    Specific Relief to Complainants.  Within thirty (30) days of the effective date of this Agreement, Inova Fairfax agrees to send a copy of this Agreement, Exhibit 1 or 1A, as applicable, and Exhibits 2 or 2A, as applicable, hereto attached, to Complainants by certified mail, return receipt requested, or by overnight currier.  Exhibits 1 and 1A, notifying the respective Complainants that an Agreement has been reached with the United States, include an offer by Inova Fairfax to pay the Complainants $27,500 (Twenty-seven thousand five hundred dollars) and $27,500 (Twenty-seven thousand five hundred dollars), respectively, as compensatory damages, and explain that, in order to accept the relief offered, Complainants must return an executed “Release of ADA Claims,” Exhibit 2 or 2A, as applicable, to Inova Fairfax within thirty (30) days of receipt of said documents.  Inova Fairfax will send the undersigned counsel for the United States a copy of Exhibits 1, 1A, 2, and 2A when they are sent to Complainants.

I.    If Complainants accept Inova Fairfax’s offer of relief as set out in Exhibits 1 and 2, and 1A and 2A, respectively, Inova Fairfax will, within fifteen (15) days of receipt of the signed “Release of ADA Claims,” send Complainants, by certified mail, return receipt requested, or by overnight currier, a check for $27,500 (Twenty-seven thousand five hundred dollars) and $27,500 (Twenty-seven thousand five hundred dollars), respectively.  Inova Fairfax will provide to the United States a copy of the checks and transmittal letters sent to Complainants.  If Complainants refuse Inova Fairfax’s offer of compensatory damages, described herein and in Section III.H., Complainants waive any right or claim to relief under this Agreement.

J.  Consideration.  In consideration of the terms of this Agreement, the United States agrees to close the investigation of the underlying complaint, D.J. # 202-79-136, and to refrain from bringing a civil action against Inova Fairfax regarding any alleged violation in that complaint, except as provided in Section IV.C.1 of the Agreement.


IV.    ENFORCEMENT AND IMPLEMENTATION

A.    Compliance Reports. Six (6) months after the effective date of this Agreement, and every six (6) months thereafter during the term of this Agreement, the Hospital must provide a written report (“Report”) to the Department of Justice regarding its efforts to comply with this Agreement.  Each Report must identify each instance in which a Patient or Companion requested interpreter services and the services provided to the individual(s), as required under Section III.B.8 (Maintenance of Log).  In the event that the Hospital does not provide interpreter services to a Patient or Companion, the Report must state: (1) the procedure followed by the Hospital in determining whether to provide interpreter services to the Patient or Companion; (2) the Hospital’s reasons for not providing interpreter services to the Patient or Companion; and (3) documentation between the Hospital and its interpreter service provider(s).  The Hospital must maintain appropriate records, including, but not limited to, those described in this Agreement, to document the information contained in the Report.  All Reports will comply with all Virginia and United States laws, regulations, and restrictions concerning confidentiality.

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

C.    Violation of Agreement.  The Department may review compliance with this Agreement at any time and may enforce this Agreement if the United States believes that it or any requirement thereof has been violated.  If the United States believes that this Agreement or any portion of it has been violated, the Department will give notice (including reasonable particulars) of such violation to the Hospital’s chief executive officer.  The Hospital must respond to such notice and/or cure such noncompliance as soon as practicable but no later than thirty (30) days thereafter, except that any event of noncompliance that prevents or restricts a patient from receiving urgent health care services must be cured without delay.  The United States and the Hospital will negotiate in good faith toward in an attempt to resolve any dispute relating thereto; if the parties are unable to reach a satisfactory resolution, the United States may bring a civil action in federal district court to enforce this Agreement or title III, and may in such action seek any relief available under law.

D.    Term of the Agreement.  The Agreement shall become effective as of the date of the last signature below and shall remain in effect for thirty (30) months from that date.

E.    Changing Circumstances. During the thirty (30) months in which this Agreement will be in effect, there may be a change in circumstances such as, for example and without limitation, an increased or decreased availability of qualified sign language or oral interpreters or developments in technology to assist or improve communications with persons who are deaf or hard of hearing. If the Hospital determines that such changes create opportunities for communicating with Patients or Companions more efficiently or effectively than is required under this Agreement, or create difficulties not presently contemplated in the provision of appropriate auxiliary aids and services, the Hospital may propose changes to this Agreement by presenting written notice to the Department of Justice.  The Department will consider any such request reasonably and in good faith, and any such modification that is agreed to will be deemed an amendment to this Agreement.

F.    Scope.  This Agreement constitutes the entire agreement between the parties relating to D.J. No. 202-79-136, and concerns only the ADA claims under, arising out of, or related toD.J. No. 202-79-136.  This Agreement does not purport to remedy any other potential violations of the ADA or any other federal law, nor does it constitute evidence that Inova Fairfax violated any other legal duty that may be implicated in the facts underlying this Agreement.  This Agreement does not affect Inova Fairfax’s continuing responsibility to comply with all aspects of the ADA.

G.    Binding. This Agreement shall be binding on Inova Fairfax, its agents and employees.  In the event Inova Fairfax seeks to transfer or assign all or part of its interest in any facility covered by this Agreement, and the successor or assign intends on carrying on the same or similar use of the facility, as a condition of sale Inova Fairfax shall obtain the written accession of the successor or assign to any obligations remaining under this Agreement for the remaining term of this Agreement.

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

I.    Public Agreement.  The Department or the Hospital will provide a copy of the Agreement to any person upon request.

J.    Signatory.  A signatory to this document in a representative capacity for Inova Fairfax represents that he or she is authorized to bind that party to this Agreement.



 

FOR THE UNITED STATES:

ALBERTO R. GONZALES
Attorney General

WAN J. KIM
Assistant Attorney General
Civil Rights Division

CHUCK ROSENBERG
United States Attorney
Eastern District of Virginia
2100 Jamieson Avenue
Alexandria, Virginia 22314
Tel: (703) 299-3700

JOHN L. WODATCH, Chief
PHILIP L. BREEN, Special Legal Counsel
ALLISON J. NICHOL, Deputy Chief
Disability Rights Section
Civil Rights Division




 
  _______________________________                              
LAURA F. EINSTEIN, Trial Attorney      
KATHLEEN WOLFE, Trial Attorney
Civil Rights Division - Disability Rights Section
United States Department of Justice
950 Pennsylvania Avenue NW - NYA
Washington, DC 20530
Tel: (202) 353-0368



FOR INOVA HEALTH CARE SERVICES
on behalf and in cooperation with
INOVA FAIRFAX HOSPITAL:



4/09/2007
Date
  By: ________________________             
Douglas P. Cropper, Administrator               
3/29/07
Date


 



Exhibit 1

Ms. Joan C. Kemp

Address
Address

            Re:             Kemp v. Inova Fairfax Hospital/Inova Fairfax Hospital for Children
                              D.J. No. 202-79-136

Dear Ms. Kemp:

  The United States and Inova Health Care Services on behalf of and in cooperation with Inova Fairfax Hospital (“Inova Fairfax”) have entered into a Settlement Agreement to resolve your complaint, D.J. No. 202-79-136, alleging disability discrimination by Inova Fairfax.  A copy of the Agreement is enclosed.

   Pursuant to the Agreement, Inova Fairfax hereby offers you a monetary award of $27,500 (Twenty-seven thousand five hundred dollars), which shall be considered compensatory in nature. To receive the monetary award, you must communicate your acceptance to Inova Fairfax by executing the enclosed “Release of ADA Claims” and returning it to Inova Fairfax within thirty (30) days of your receipt of this letter.  You must send the signed “Release of ADA Claims” by mail to:

Address
Address
Address
Address

If you have any questions concerning the Agreement, you may contact Kathleen P. Wolfe, the attorney for the U.S. Department of Justice, at (202) 307-0663.

Sincerely,                                      

(Representative for Inova Fairfax)

Encls.

 



Exhibit 1A

Ms. Jamie Yost

Address
Address

            Re:             Kemp v. Inova Fairfax Hospital/Inova Fairfax Hospital for Children
                               D.J. No. 202-79-136

Dear Ms. Yost:

   The United States and Inova Health Care Services on behalf of and in cooperation with Inova Fairfax Hospital (“Inova Fairfax”) have entered into a Settlement Agreement to resolve the complaint, D.J. No. 202-79-136, alleging disability discrimination by Inova Fairfax.  A copy of the Agreement is enclosed.

   Pursuant to the Agreement, Inova Fairfax hereby offers you a monetary award of $27,500 (Twenty-seven thousand five hundred dollars), which shall be considered compensatory in nature. To receive the monetary award, you must communicate your acceptance to Inova Fairfax by executing the enclosed “Release of ADA Claims” and returning it to Inova Fairfax within thirty (30) days of your receipt of this letter.  You must send the signed “Release of ADA Claims” by mail to:

Address
Address
Address
Address

If you have any questions concerning the Agreement, you may contact Kathleen P. Wolfe, the attorney for the U.S. Department of Justice, at (202) 307-0663.

Sincerely,                                      

(Representative for Inova Fairfax)

Encls.





RELEASE OF ADA CLAIMS

D.J. No. 202-79-136

For and in consideration of the acceptance of relief offered to me by Inova Health Care Services on behalf of and in cooperation with Inova Fairfax Hospital (“Inova Fairfax”) pursuant to a Settlement Agreement between the United States of America and Inova Fairfax:  I, Joan C. Kemp, release and discharge Inova Fairfax, its subsidiaries, affiliates, insurers, successors and assigns, and its current, past, and future officers, directors, shareholders, employees, and agents, of and from all legal and equitable claims under, arising out of, or related to my complaint, D.J. No. 202-79-136, concerning Inova Fairfax’s failure to provide effective communication in violation of the Americans with Disabilities Act. 

This Release constitutes the entire agreement between myself and Inova Fairfax without exception or exclusion.  This Release will be considered null and void in the event that Inova Fairfax fails to send me a check in the amount of $27,500 (Twenty-seven thousand five hundred dollars) within fifteen (15) days of receipt of this signed Release.

I acknowledge that a copy of the Agreement between the United States and Inova Fairfax has been made available to me.  I further acknowledge that I have had the opportunity to review the terms of this Release with an attorney of my choosing, and, to the extent that I have not obtained that legal advice, I voluntarily and knowingly waive my right to do so.

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

Signed this _______ day of ____________, 2007.



_______________________________
Joan C. Kemp                                           



Sworn and subscribed to before me this _______ day of _____________, 2007.

_______________________________
Notary public



My commission expires:____________

 

 



Exhibit 2A

RELEASE OF ADA CLAIMS

D.J. No. 202-79-136

For and in consideration of the acceptance of relief offered to me by Inova Health Care Services on behalf of and in cooperation with Inova Fairfax Hospital (“Inova Fairfax”) pursuant to a Settlement Agreement between the United States of America and Inova Fairfax:  I, Jamie Yost, release and discharge Inova Fairfax, its subsidiaries, affiliates, insurers, successors and assigns, and its current, past, and future officers, directors, shareholders, employees, and agents, of and from all legal and equitable claims under, arising out, of or related to the complaint, D.J. No. 202-79-136, concerning, solely, Inova Fairfax’s failure to provide effective communication in violation of the Americans with Disabilities Act (ADA). 

This Release constitutes the entire agreement between myself and Inova Fairfax without exception or exclusion, and concerns only the ADA matter raised in D.J. No. 202-79-136.  This Release will be considered null and void in the event that Inova Fairfax fails to send me a check in the amount of $27,500 (Twenty-seven thousand five hundred dollars) within fifteen (15) days of receipt of this signed Release.

I acknowledge that a copy of the Agreement between the United States and Inova Fairfax has been made available to me.  I further acknowledge that I have had the opportunity to review the terms of this Release with an attorney of my choosing, and, to the extent that I have not obtained that legal advice, I voluntarily and knowingly waive my right to do so.

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

Signed this _______ day of ____________, 2007.

____________________________
Jamie Yost                                          

Sworn and subscribed to before me this _______ day of _____________, 2007.

_______________________________
Notary public



My commission expires:____________




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April 9, 2007