SETTLEMENT AGREEMENT BETWEEN

THE UNITED STATES OF AMERICA

AND

MEDBROOK MEDICAL ASSOCIATES, INC.

DJ # NO. 202-83-8


Settlement bullet divider Department of Justice Press Release

BACKGROUND

1.The parties (Parties) to this Settlement Agreement (Agreement) are the United States of America (United States) and Medbrook Medical Associates, Inc. (Medbrook).

2.Medbrook is incorporated under the laws of the state of West Virginia. Medbrook operates professional medical offices where it provides urgent and primary medical care to its patients.

3.This Agreement resolves an investigation of Medbrook conducted by the U.S. Department of Justice (United States) under title III of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12181 - 12189. This matter was initiated by a complaint filed with the United States against Medbrook by a deaf man (Complainant-Husband) and his wife (Complainant-Wife). The complainants alleged that Medbrook violated title III of the ADA by refusing to provide a sign language interpreter to ensure effective communication when Complainant-Husband sought medical services.

4.The United States investigated the complaint and made the following findings. On October 31, 2003, the Complainant-Husband left work early because he was having trouble breathing and went to Medbrook in Bridgeport, West Virginia, because it was the closest medical facility. The Complainant-Wife had just seen a doctor at Medbrook because she was feeling ill and unexpectedly encountered her husband there. She stayed with him while he waited to see a doctor. Complainant-Wife informed the Medbrook receptionist that her husband would need a sign language interpreter because he is deaf. A Medbrook employee advised Complainant-Wife that Medbrook does not hire sign language interpreters. Complainant-Wife told the Medbrook employee that she was not a qualified interpreter, that she did not feel capable of interpreting medical terminology, and that she felt too ill to interpret. Medbrook did not provide a sign language interpreter for Complainant-Husband, leaving Complainant-Wife no choice but to interpret for her husband, although she was ill, does not know signs for medical terminology, and is not a sign language interpreter.

5.The United States made the following determinations. Complainant-Husband is deaf and is therefore a person with a disability within the meaning of 42 U.S.C. § 12102(2)(A) and 28 C.F.R. § 36.104. Because of her marriage to Complainant-Husband, Complainant-Wife is associated with a person with a known disability within the meaning of 42 U.S.C. § 12182(b)(1)(E); 28 C.F.R. § 36.205. Medbrook violated title III of the ADA by failing to provide appropriate auxiliary aids and services necessary to ensure effective communication with the Complainant-Husband. 42 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303(c). Medbrook violated title III of the ADA by leaving the Complainant-Wife no choice but to interpret for her husband when he was seeking medical care at Medbrook even though she was ill and is not a qualified interpreter, thereby denying her equal services because of her association with her deaf husband. 42 U.S.C. § 12182(b)(1)(E); 28 C.F.R. § 36.205. Medbrook’s policy of not providing auxiliary aids and services to Patients and Companions who are deaf, are hard of hearing, or have speech disabilities is continuing and raises an issue of general public importance in violation of Title III of the ADA.

6.In order to avoid further investigation or litigation of the matters at issue in this Agreement, the Parties agree to the following.

DEFINITIONS

7.The term “appropriate auxiliary aids and services” means qualified sign language interpreters, qualified 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.

8.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 medical 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. 28 C.F.R. § 35.104, 28 C.F.R. § 36.104. Someone who is a qualified interpreter for a person who uses American Sign Language may not be a qualified interpreter for an individual who uses a different sign language, such as signed English. Likewise, an interpreter who knows tactile interpreting may be the only interpreter who is qualified to interpret for someone who is both deaf and blind.

9.The term “staff” shall mean any person working for Medbrook, whether as an officer, agent, employee, volunteer, or independent contractor, including, without limitation, nurses, doctors, therapists, technicians, physician’s or nurse’s assistants, nurse practitioners, office managers, administrative assistants, secretaries, receptionists, and other clerical staff.

10.The term “Patient” shall mean any person who is treated by or who seeks treatment or medical consultation from Medbrook.

11.The term “Companion” means a person who is (1) deaf or hard of hearing and who accompanies a deaf or hard of hearing Patient, or (2) deaf or hard of hearing and who accompanies a hearing Patient, or (3) hearing and who accompanies a deaf or hard of hearing Patient; and who is (I) legally authorized to make health care decisions on behalf of the Patient, or (ii) designated by the Patient to communicate, or circumstances otherwise indicate should communicate, with any member of Medbrook staff about the Patient, the Patient’s needs, condition, history, or symptoms, or (iii) authorized to help the Patient act on information or instructions by any member of Medbrook staff, or (iv) the Patient’s next of kin or health care surrogate or such person with whom Medbrook or any member of its staff ordinarily and regularly communicates concerning the Patient’s medical condition and medical advice.

12.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.

THE PARTIES

13.Medbrook’s facilities in Bridgeport, West Virginia, are the professional offices of a private health care provider whose operations affect commerce and are, therefore, a place of public accommodation within the meaning of title III of the ADA, 42 U.S.C. § 12181(7)(F) and title III’s implementing regulation, 28 C.F.R. § 36.104. Medbrook is, therefore, the owner and operator of a place of public accommodation and, as such, is covered by title III of the ADA as provided by 42 U.S.C. § 12182(a); 28 C.F.R. § 36.104.

14.The Attorney General of the United States (Attorney General) is authorized to investigate alleged violations of title III of the ADA and to bring a civil action in federal court if the United States is unable to secure voluntary compliance. 42 U.S.C. § 12188(b); 28 C.F.R. §§ 36.502, 36.503.

15.In consideration of the terms of this Agreement, the United States agrees to refrain from undertaking further investigation or filing a civil suit in this matter regarding the areas covered under the Remedial Actions section of this Agreement, except as provided in the Enforcement and Implementation sections of the Agreement.

16.In consideration for the United States’ agreement to refrain from further investigation and possible litigation as set out below, Medbrook agrees to take the actions specified in this Agreement.

REMEDIAL ACTIONS

17.Within thirty (30) days of the effective date of this Agreement, Medbrook will implement policies, practices, and procedures to ensure that Patients and Companions who are deaf or hard of hearing are provided with appropriate auxiliary aids and services that afford effective communication. These policies, practices, and procedures shall be in written form and shall require the following:

a.  At the time a Patient or Companion with a hearing or communication disability requests a primary care appointment at Medbrook, the staff member taking the request will have the person making the request fill out the Communication Assessment Form (Form) attached hereto as Attachment A. If the person requesting the appointment is communicating by telephone or TTY, or is unable to fill out the Form by himself or herself, the staff member scheduling the appointment will fill out the Form by asking the person requesting the appointment the questions listed on the Form and accurately writing his or her answers on the Form.

b.  A managerial member of Medbrook staff shall review each Communication Assessment Form on the day it is received or completed by staff to determine if it includes any requests for auxiliary aids and services. If the Form requests any auxiliary aids or services, Medbrook shall make a determination the same day concerning the appropriate auxiliary aids and services to be provided to that Patient or Companion for the appointment in question. In making this determination, Medbrook must make an individualized determination in consultation with the Patient or Companion for whom the auxiliary aids and services were requested and must take into account all relevant facts and circumstances, including but not limited to the following:

    1. The nature, length and importance or potential importance of the communication at issue;
    2. The communication skills and knowledge of the person for whom the auxiliary aids and services were requested;
    3. The Patient’s health status or changes to the Patient’s health status;
    4. The reasonably foreseeable health care activities of the Patient (e.g., medical tests or procedures, rehabilitation services, discussions concerning billing and insurance, self-care, prognoses, diagnoses, and medical history) and the possible questions and explanations arising from these reasonably foreseeable health care activities;
    5. The preferences of the Patient or Companion requesting the auxiliary aids and services.

c.  If Medbrook will provide the auxiliary aids and services requested, a member of Medbrook’s staff will contact the Patient or Companion requesting the auxiliary aids and services by telephone, TTY, or relay service, as appropriate, to confirm that the auxiliary aids and services requested will be provided. This confirmation must take place within 24 hours of the time the auxiliary aids and services are first requested.

d.  If, after completing the assessment required by Paragraph 17(b), Medbrook believes that either no auxiliary aids and services should be provided, or that different auxiliary aids and services than the one(s) requested should be provided, a member of Medbrook staff will:

  1. Inform the Patient or Companion requesting the auxiliary aids and services by telephone, relay service, or TTY, as appropriate, within 24 hours of the request being made and discuss this determination with the requester.
  2. If the Patient or Companion agrees with Medbrook’s assessment, Medbrook will provide the auxiliary aids and services agreed upon.
  3. If the person requesting the auxiliary aids and services does not agree with the assessment, Medbrook will, in good faith, reconsider its determination, using any additional information provided by the Patient or Companion.
  4. After reconsidering the initial assessment regarding the auxiliary aids and services that will be provided for the visit in question, Medbrook will inform the person requesting the auxiliary aids and services of this determination. If Medbrook does not agree to provide the auxiliary aids and services requested, a manager on Medbrook’s staff will write and sign a memorandum explaining the decision and all facts and reasoning that provide the basis for it. Medbrook will provide a copy of that memorandum to the Patient or Companion at the time of his or her visit, or, if the visit is canceled, the memorandum will be sent to him or her immediately via first class mail. A copy of all documents created in accordance with this paragraph will be simultaneously provided to the United States. Medbrook will also provide notice to the United States regarding any complaints received pursuant to this process, written or oral, within ten (10) days of its receipt.
  5. Copies of these documents and all others created by any member of Medbrook’s staff pursuant to this Agreement must be maintained by Medbrook on the premises of its professional office located at [insert address].

18.In any instance where a Patient or Companion requests that one or more family member[s], friend[s], or other person[s] be present to provide interpreting or other auxiliary aids and services affording that Patient or Companion effective communication without cost to Medbrook, that person must be allowed to be present at the time of the appointment with any member of Medbrook staff.

19.All costs incurred in obtaining and using sign language interpreters or other auxiliary aids and services shall be paid by Medbrook. Medbrook will not charge persons for whom it furnishes auxiliary aids and services for those auxiliary aids and services nor will Medbrook charge them more for the other services received in its offices than it would charge other Patients receiving the same services who do not utilize auxiliary aids and services.

20.To ensure that qualified sign language interpreters and qualified oral interpreters are available, within thirty (30) days of the effective date of this Agreement, Medbrook will enter into a written contractual arrangement with one or more qualified sign language interpreters or sign language interpreter agencies specifying that a sign language interpreter will be made available for office appointments at Medbrook’s professional office or at any other office or medical facility where Medbrook provides treatment, consultation, or other medical services within twenty-four (24) hours of a request being made for primary care appointments, and within two (2) hours of a request being made for urgent care.

21.Within thirty (30) days of the effective date of this Agreement, Medbrook will post a notice (Notice) in a conspicuous location in the waiting room(s) of its professional offices. The Notice, written in a bold black font at least eighteen (18) points in size on a contrasting background, will set out the policies and procedures for requesting a sign language interpreter or other form of auxiliary aid or service. This Notice will inform Patients, family members, and Companions of their right under the ADA to request a sign language interpreter or other form of auxiliary aid or service if needed for effective communication while receiving services from Medbrook, as well as the policies and procedures for requesting a sign language interpreter or other form of auxiliary aid or service and for requesting reconsideration of any denial of such a request. The language of the Notice attached to this Agreement at Attachment B meets this requirement.

22.Within thirty (30) days of the effective date of this Agreement, Medbrook will prominently post and maintain on its Internet website (www.medbrook.com) the following notice:

In accordance with the Americans with Disabilities Act (ADA), Medbrook Medical Associates, Inc., will provide auxiliary aids and services, which may include qualified sign language interpreters, when they are necessary to ensure effective communication with individuals who are deaf or hard-of-hearing.

The notice shall be accessible via a conspicuous link from Medbrook’s home page which directs patients with disabilities to additional information.

23.Within thirty (30) days of the effective date of this Agreement, Medbrook will provide one hour of mandatory training for all members of its staff who have contact with Patients regarding their responsibilities and duties under the ADA and the terms of this Agreement. All new staff members whose duties involve contact with Patients will be trained regarding their responsibilities and duties under the ADA and the terms of this Agreement promptly after beginning to work for Medbrook.

24.The ADA authorizes the Attorney General to seek a court award of compensatory damages on behalf of individuals aggrieved as the result of violations of the ADA. 42 U.S.C. § 12188(b)(2)(B); 28 C.F.R. § 36.504(a)(2). Within ten (10) days of the effective date of this Agreement, Medbrook will compensate Complainant-Husband and Complainant-Wife in this matter by sending each of them a certified check in the amount of four thousand dollars ($4,000.00), via certified mail, to the address provided by the United States. Medbrook will simultaneously send a copy of the checks and the accompanying letter to counsel for the United States. In consideration for the compensatory damages set forth above, the United States agrees that within ten (10) days of its receipt of the Agreement signed by Medbrook, it will obtain Complainant-Husband’s and Complainant-Wife’s signatures on copies of the “Waiver and Release of Claim form attached hereto as Attachment C. The United States will mail an original of the signed Waiver and Release of Claim forms signed by Complainant-Husband and Complainant-Wife to Medbrook within fifteen (15) days of the United States’ receipt of same.

25.The ADA authorizes the Attorney General to seek a civil penalty as a result of violations of the ADA. 42 U.S.C. § 12188(b)(2)(C); 28 C.F.R. § 36.504(a)(3). Within ten (10) days of the effective date of this Agreement, Medbrook will issue and deliver to counsel for the United States a check or money order in the amount of one thousand dollars ($1,000.00) payable to the United States Treasury as a civil penalty.

IMPLEMENTATION AND ENFORCEMENT OF THE SETTLEMENT AGREEMENT

26.Within ninety (90) days of the effective date of this Agreement, Medbrook will provide the United States with a copy of all training materials used to train its staff, a list of the staff trained that includes the date and time of their training, photographs of the notices posted in its offices pursuant to this Agreement, and a copy of its contract(s) with one or more sign language interpreter or sign language interpreter agency.

27.Beginning ninety (90) days after the effective date of this Agreement and continuing every six months thereafter throughout the life of the Agreement, Medbrook will send the United States a written report including a copy of all Forms completed by Patients, Companions, or staff since the last report, copies of all memoranda prepared pursuant to this Agreement since the last report, and a detailed description of the auxiliary aid or service provided in response to each request.

28.If at any time Medbrook desires to modify any portion of this Agreement because of changed conditions making performance impossible or impractical or for any other reason, Medbrook will promptly notify the United States in writing, setting forth the facts and circumstances thought to justify modification and the substance of the proposed modification. Until there is written Agreement by the United States to the proposed modification, the proposed modification will not take effect. These actions must receive the prior written approval of the United States, which approval shall not be unreasonably withheld or delayed.

29.The United States may review compliance with this Agreement at any time. If the United States believes that this Agreement or any of its requirements have been violated, it may institute a civil action in Federal District Court to enforce this Agreement or the requirements of title III, following written notice to Medbrook of possible violations and a period of 30 days in which Medbrook has the opportunity to cure the alleged violations.

30.For purposes of the immediately preceding paragraph, it is a violation of this Agreement for Medbrook to fail to comply in a timely manner with any of its requirements without obtaining sufficient advance written agreement with the United States for an extension of the relevant time frame imposed by the Agreement.

31.Failure by the United States to enforce this entire Agreement or any of its provisions or deadlines shall not be construed as a waiver of the United States’ right to enforce other deadlines and provisions of this Agreement.

32.This Agreement shall be binding on Medbrook and its agents, employees, contractors, and volunteers who work in any of Medbrook’s offices. In the event Medbrook seeks to transfer or assign all or part of its interest in any facility covered by this Agreement, and the successor or assignee intends on carrying on the same or similar use of the facility, as a condition of the transfer or assignment Medbrook shall obtain the written accession of the successor or assignee to any obligations remaining under this Agreement for the remaining term of this Agreement.

33.The effective date of this Agreement is the date of the last signature below.

34.This Agreement, including Attachments A, B, and C, constitutes the entire agreement between the Parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written Agreement, will be enforceable under its provisions.

35.This Agreement is limited to the facts set forth above and does not purport to remedy or resolve any other existing or potential violations of the ADA or any other Federal law.

36.This Agreement does not affect Medbrook’s continuing responsibility to comply with all applicable aspects of title III of the ADA. In particular, title III imposes an obligation to make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford goods, services, and facilities to individuals with disabilities, an obligation to provide auxiliary aids and services when necessary to provide effective communication for people with disabilities, and the obligation to remove barriers to access for people with disabilities when it is readily achievable to do so. 28 C.F.R. 28 C.F.R. §§ 36.211, 36.302, 36.304, 36.305.

37.A copy of this document or any information contained in it will be made available to any person by Medbrook or the United States on request.

38.This Agreement will remain in effect for three (3) years from the effective date of this Agreement.

39.The signer of this document, in a representative capacity for Medbrook represents that he or she is authorized to bind Medbrook to this Agreement.

40.The date this Agreement becomes effective is the date of the last signature below.

41.See Addendum attached hereto and made a part hereof.

 

FOR MEDBROOK MEDICAL ASSOCIATES, INC.:  

FOR THE UNITED STATES:

Grace Chung Becker
Acting Assistant Attorney General
Civil Rights Division

 

______________________________
Kelly R. Nelson, M.D.
Authorized Representative
Medbrook Medical Associates, Inc.

 

__________________________________
Harry M. Rubenstein, Esquire
Attorney
Medbrook Medical Associates, Inc.

  __________________________________
John L. Wodatch, Chief
Jeanine M. Worden, Deputy Chief
Elizabeth Bacon, Supervisory Attorney
Sunny Pietrafesa, Trial Attorney
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Ave., NW
DRS 1425 NYA
Washington, D.C. 20530
(202) 616-2217
     

 

 

 

ATTACHMENT A: COMMUNICATION ASSESSMENT FORM

 

                                            am/pm
Date                      Time


Name of Person with Disability

Patient’s Name (if not person with disability)

Nature of Disability:

❏ Deaf
❏ Hard of Hearing
❏ Speech Disability
❏ Other: ____________________

Relationship to Patient:

❏ Self
❏ Family Member
❏ Friend / Companion
❏ Other: __________________

Do you want a professional sign language or oral interpreter for your visit?

❏ No.I do not use sign language and do not use interpreters to lip read.
❏ No.I prefer to have family members/ friends help with communication.
❏ No.I do not feel an interpreter is necessary or do not want one for this visit.
❏ Yes. Choose one (free of charge):

❏ American Sign Language (ASL) interpreter
❏ Pidgin Signed English (PSE) interpreter
❏ Signed English interpreter
❏ Oral interpreter
❏ Other. Explain: ___________________________________________

Which of these would be helpful for you for effective communication? (free of charge)

❏ TTY/TDD (text telephone)
❏ Assistive listening device (sound amplifier)
❏ Qualified note-takers
❏ Writing back and forth
❏ CART: Computer-assisted Real Time Transcription Service
❏ Other. Explain: _________________________________________

We ask this information so we can communicate with you effectively. All communication aids and services are provide FREE OF CHARGE. If you need further assistance, please ask a member of our office staff.

Any questions? Please call our office, ______________(voice), ______________ (TTY), or visit us during normal business hours.

 

 

Attachment B

Medbrook Medical Associates, Inc. and its office staff are committed to providing equal access to patients, family members, and companions with disabilities.

To ensure effective communication, Medbrook provides qualified sign language and oral interpreters, computer assisted real time transcription services (CART), and other auxiliary aids and services free of charge for patients, family members, and companions who are deaf, are hard of hearing, or have speech disabilities.

To request auxiliary aids or services, please speak to ______________. If an auxiliary aid or service is denied, you can request a reconsideration by providing this office with a written statement explaining why you need the aid or service that was denied. If needed, office staff can help write down your request for reconsideration. If you have any problems, please speak to _________________ directly.

The Americans with Disabilities Act (ADA) prohibits discrimination against people with disabilities. People who are deaf, are hard of hearing, or have speech disabilities have the right under the ADA to request auxiliary aids and services. For more information about the ADA, call the Department of Justice’s toll-free ADA Information Line at 1-800-514-0301 (voice), 1-800-514-0383 (TTY) or visit the ADA Home Page at www.ada.gov.

 

 

ATTACHMENT C

WAIVER AND RELEASE OF CLAIMS

 

I, _________________________, hereby agree that in consideration of the terms set forth in the Settlement Agreement between the United States of America and Medbrook Medical Associates, Inc., I hereby release Medbrook Medical Associates, Inc., and all of its agents, directors, managers, employees, contractors, and volunteers, as well as any affiliated entities, successors and assigns, without limitation from any and all legal claims arising from or related to the facts and circumstances described in the Settlement Agreement resolving complaint number 202-83-8 filed with the United States under title III of the Americans with Disabilities Act. This includes, but is not limited to, all claims for monetary or equitable relief that I may have under federal, state, or local law. I have been advised that, before signing this release, I have the right to consult a private attorney regarding its contents. I have read this release and understand its contents, and choose to sign it of my own free will and not under duress.

AGREED:

 

______________________              ________________________________________
Date                                                   Signature

 

 

ADDENDUM

Medbrook does not admit to any wrongdoing concerning this matter. However, Medbrook acknowledges the serious legal implications and the need to provide services as identified herein. It is Medbrook’s understanding that the Patien-Husband did not suffer from any medical maltreatment or mistreatment.

Since the incident and the subsequent investigation by the United States, Medbrook has cooperated in good faith and has resolved the issues favorably to all concerned. Medbrook does not condone lack of patient care of attention to the needs of the patient and apologized for the concerns expressed by the Complainants.

Prior to the execution of this Agreement, Medbrook had undertaken many of the steps under the “Remedial Action” Section, including entering into an agreement with the Center for Hearing and Deaf Services, adopting a policy and implementing training. Medbrook will submit verification and on-going documentation as indicated by this Agreement.

 





December 12, 2008