SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES AND METHODIST HEALTHCARE
AMERICANS WITH DISABILITIES ACT
Background and Jurisdiction
- The Parties to this Settlement Agreement are the United States and Methodist LeBonheur Healthcare.
- This matter was initiated by a complaint filed with the United States Attorney's Office for the Western District of Tennessee against Respondent. The complaint was investigated and a compliance review undertaken by the United States Attorney's Office under the authority granted by Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12188(b)( I )(A)(I).
- The United States alleges that Methodist LeBonheur Healthcare discriminated against the complainant, who is deaf and sight imparied, by failing to provide appropriate auxiliary aids and services necessary for effective communication. Specifically, the United States alleges that the Hospital violated the ADA, 42 U.S.C. §§ 12181-12189, and the U.S. Department of Justice's implementing regulation, 28 C.F.R. Part 36, when the Hospital failed to make a thorough assessment of the complainant's communications needs and failed to provide a sign-language interpreter for the complainant despite repeated requests for an interpreter by the complainant's niece resulting in the attending physician noting that he could not communicate with the complainant.
- Methodist LeBonheur Healthcare is a public accommodation within the meaning of Title III of the ADA, 42 U.S.C. § 12181(7)(F) and its implementing regulation at 28 C.F.R. § 36.104.
- Section 302(a) of the ADA, 42 U.S.C. § 12182(a), prohibits any person that owns, operates, leases or leases to a place of public accommodation from discriminating on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation. See 28 C.P.R. § 36.201(a).
- On the basis of its investigation, the United States Attorney's Office has determined that the complainant was denied appropriate services necessary for effective communication, in violation of 42 U.S.C. § 12182(b)(2)(A)(iii).
- The Parties desire to settle this matter without resorting to litigation and have, therefore, entered into this Settlement Agreement.
- "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, assisted listening devices, assisted listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, TTYs, large-print materials, acquisition or modification of equipment or devices, universal sound signalers, sonic blink strobe receivers, telephone signalers, and other methods of delivering effective communication that may have come into use or will come into existence in the future. See 28 C.F.R. § 36.303(b).
- "Hospital" or "Methodist Hospital" means Methodist LeBonheur Healthcare and the acute care hospitals it operates at the following locations in the Western District of Tennessee:
1265 Union Avenue, Memphis, TN
||3960 New Covington Pike, Memphis, TN
||1300 Wesley Drive, Memphis, TN 7691
||Poplar Avenue, Germantown, TN 225 S.
|Extended Care Hospital
||Claybrook, Memphis, TN
|LeBonheur Children's Medical Center
||50 N. Dunlap Street, Memphis, TN
- "Hospital personnel" means all employees and independent contractors with contracts to work on a substantially full-time basis for Methodist LeBonheur Healthcare (or on a part time basis exclusively for Methodist LeBonheur Healthcare), including, without limitation, nurses, physicians, social workers, technicians, admitting personnel, billing staff, security staff, therapists, and all volunteers who have or are likely to have direct contact with Deaf or hard-of-hearing "Patients" or "Companions," as defined in this Settlement Agreement.
- "Qualified sign language interpreter," "oral interpreter," or "interpreter" means a person who meets the requirements of the ADA and its implementing regulations, see 28 C.F.R. § 36.104, and 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 Settlement Agreement. Someone who has only a rudimentary familiarity with sign language or finger spelling is not a "qualified sign language interpreter" under this Settlement Agreement. Likewise, someone who is fluent in sign language but who does not possess the ability to process spoken communication into the proper signs or to observe someone signing and change their signed or finger spelled communication into spoken words is not a qualified sign language interpreter. 28 C.F.R. § 36.303.1
- "Patient" shall be broadly construed to include any individual who is seeking or receiving health care services, including mental health services, from Methodist LeBonheur Healthcare, whether as an in-patient or an out-patient.
- "Companion" means a person who is deaf or hard- of- hearing and is one of the following:
- 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
- a person legally authorized to make health care decisions on behalf of the Patient; or
- such other person with whom the Hospital personnel would ordinarily and regularly communicate with concerning the Patient's medical condition.
- "Effective Date of this Settlement Agreement" means the date this Settlement Agreement is signed by both parties.
- "Parties" means United States of America and Methodist LeBonheur Healthcare.
- "Aggrieved Party" means Lee Amos Blair. Lee Amos Blair is deaf and blind and is, thus, a person with a disability within the meaning of Title III of the ADA, 42 U.S.C. § 12102(2), and its implementing regulation at 28 C.F.R. § 36.104.
Prohibition of Discrimination
- Nondiscrimination. Methodist LeBonheur Healthcare will provide appropriate auxiliary aids and services, including qualified sign language interpreters, where such aids and services are necessary, to ensure effective communication with deaf and hard-of-hearing Patients and Companions. Pursuant to 42 U.S.C. § 12182(a), Methodist LeBonheur Healthcare will also provide deaf and hard-of-hearing Patients and Companions with the full and equal enjoyment of the services, privileges, facilities, advantages, and accommodations of the Hospital as required by this Settlement Agreement and the Americans with Disabilities Act.
- Nondiscrimination by Association. Methodist LeBonheur Healthcare 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.
- Retaliation and Coercion. Methodist LeBonheur Healthcare will not retaliate against or coerce in any way any person who is trying to exercise his or her rights under this Settlement Agreement or the Americans with Disabilities Act.
- Appropriate Auxiliary Aids and Services. Pursuant to 42 U.S.C. § 12182(b)(2)(A)(iii), Methodist LeBonheur Healthcare will provide to deaf or hard-of-hearing Patients and Companions any appropriate auxiliary aids and services that may be necessary for effective communication after making the assessment described in paragraphs 21-25 of this Settlement Agreement. Appropriate auxiliary aids and services will be provided as soon as practicable, except that the provision of sign language and oral interpreters must be within the time frame described in paragraph 35 of this Settlement Agreement.
- 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 person with a disability, where possible. A Model Communication Assessment Form is attached to this Settlement Agreement as Exhibit A, and Methodist LeBonheur Healthcare will develop a form similar to Exhibit A within thirty (30) days of the effective date of this Settlement Agreement. The assessment made by Hospital personnel will take into account all relevant facts and circumstances, including without limitation the following:
- the nature, length, and importance of the communication at issue;
- the individual's communication skills and knowledge;
- the Patient's health status or changes thereto;
- the Patient's and/or Companion's request for or statement of need for an interpreter;
- the reasonably foreseeable health care activities of the Patient (e.g. group therapy sessions, medical tests or procedures, rehabilitation services, meetings with healthcare professionals or social workers, or discussions concerning billing, insurance, self-care, prognoses, diagnoses, history, and discharge); and
- the availability at the required times, day or night, of appropriate auxiliary aids and services.
- Time for Assessment. The determination of which appropriate auxiliary aids and services are necessary, and the timing, duration, and frequency with which they will be provided, must be made at the time an appointment is scheduled for the Deaf or hard-of-hearing Patient or on the arrival of the deaf or hard-of-hearing Patient or Companion at the Hospital, whichever is earlier. 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. In the event that communication is not effective, Hospital personnel will reassess which appropriate auxiliary aids and services are necessary, in consultation with the person with a disability, where possible.
- Ongoing Relationships. If a Deaf or hard-of-hearing Patient or a Companion has an ongoing relationship with the Hospital, with respect to each of these subsequent visits, Methodist LeBonheur Healthcare will continue to provide the appropriate auxiliary aids or services to the deaf or hard-of-hearing Patient or his or her Companion without requiring a request for the appropriate auxiliary aids or services by the Patient or Companion for each visit. Hospital personnel will keep appropriate 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.
- Medical Concerns. Nothing in this Settlement 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 the Patient's medical condition.
- Determination Not to Provide Appropriate Auxiliary Aid or Service. If, after conducting an assessment, Methodist LeBonheur Healthcare determines that the circumstances do not warrant provision of an appropriate auxiliary aid or service, understanding that some form of effective communication must be ensured, 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 (and Companion, if applicable); will be maintained with the Auxiliary Aid & Service Log described in paragraph 27 of this Settlement Agreement; and will be placed in the Patient's medical chart.
- Administrators. Methodist LeBonheur Healthcare will designate at least one employee at each of the hospitals it operates as Administrator or Co-Administrators, and at least one such employee will always be on duty and 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 appropriate auxiliary aids and services and qualified sign language and oral interpreters. The Administrator or Co-Administrators 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. Methodist LeBonheur Healthcare will circulate and post broadly within the Hospital the name, telephone number, function, and office location of the Administrator, including a TTY telephone number, through which the Administrator or Co-Administrator on duty can be contacted twenty-four (24) hours a day seven days a week by deaf or hard-of-hearing Patients and Companions in order to obtain assistance. The Administrator or Co-Administrators will be responsible for the complaint resolution mechanism described in paragraph 28 of this Settlement Agreement. The Administrator or Co-Administrators will be designated by Methodist Hospital no later than 30 days following execution of this Agreement.
- Auxiliary Aid and Service Log. Methodist LeBonheur Healthcare will maintain a log at each hospital of each request for an appropriate auxiliary aid and service, the time and date the request is made, the name of the deaf or hard-of-hearing Patient (and Companion, if applicable), the time and date of the scheduled appointment (if a scheduled appointment was made), the nature of the auxiliary aid or service provided, the time and date the appropriate auxiliary aid and service was provided, or a statement that the appropriate auxiliary aid and service was not provided. Such logs will be maintained by the Administrator for the entire duration of the Settlement Agreement, and will be incorporated into the semi-annual Compliance Reports as described in paragraph 56 of this Settlement Agreement.
- Complaint Resolution. Methodist LeBonheur Healthcare will maintain an effective complaint mechanism for the resolution of disputes regarding effective communication with deaf and hard-of-hearing Patients and Companions. Methodist LeBonheur Healthcare will maintain records of all complaints regarding effective communication, whether oral or written, made to Methodist LeBonheur Healthcare and actions taken with respect thereto. Methodist LeBonheur Heal health care will notify deaf and hard-of-hearing persons of Methodist Lelsonheur Healthcare's complaint resolution mechanism, to whom complaints should be made, and of the right to receive a written response to the complaint. A written response shall be completed within thirty (30) days of receipt of the complaint. Copies of all complaints or notes reflecting oral complaints and the responses thereto will be maintained by the Administrator for the entire duration of the Settlement Agreement.
- Prohibition of Surcharges. All appropriate auxiliary aids and services required by this Settlement Agreement will be provided free of charge to the Deaf or hard-of-hearing Patient and/or Companion.
- Individual Notice in Absence of Request. If a deaf or hard-of-hearing Patient and/or Companion does not request appropriate auxiliary aids or services, but Hospital personnel have reason to believe, after conducting the assessment described in paragraphs 21-25 of this Settlement Agreement, that such person would benefit from appropriate auxiliary aids or services for effective communication, Methodist LeBonheur Healthcare will specifically inform the Deaf or hard-of-hearing Patient and/or Companion that appropriate auxiliary aids and services are available free of charge.
- Communication with Patients and Companions. Methodist LeBonheur Healthcare will take appropriate steps to ensure that all Hospital personnel having contact with a Deaf or hard-of-hearing Patient or a Companion are made aware of such person's disability so that effective communication with such person will be achieved. In addition, Methodist Lelsonheur Healthcare will take appropriate steps to ensure that all Hospital personnel having contact with a Deaf or hard-of-hearing Patient or Companion are aware of: (a) Methodist LeBonheur Healthcare's policies and procedures implementing this Settlement Agreement and the ADA; (b) Methodist LeBonheur Healthcare's policies and procedures governing requests for appropriate auxiliary aids and services by deaf and hard-of-hearing Patients and Companions; and (c) the role of the Administrators described in paragraph 26 of this Settlement Agreement.
Sign Language and Oral Interpreters
- Circumstances Under Which Interpreters Will Be Provided. The Hospital shall provide qualified sign language interpreters to Patients and Companions who are deaf or hard-of- hearing and whose primary means of communication is sign language, and qualified oral interpreters to such Patients and Companions who rely primarily on lip reading, as necessary for effective communication. The determination of when such interpreters shall be provided to Patients or Companions shall be made as set forth in paragraphs 21-25 above. The following are examples of circumstances when it may be necessary to provide interpreters:
- determination of a Patient's medical history or description of ailment or injury;
- provision of Patients' rights, informed consent or permission for treatment;
- determination and explanation of Patient's diagnosis or prognosis, and current condition;
- explanation of procedures, tests, treatment, treatment options or surgery;
- religious services and spiritual counseling provided by the Hospital;
- explanation of living wills or powers of attorney (or their availability);
- diagnosis or prognosis of ailments or injuries;
- explanation of medications prescribed (such as dosage, instructions for how and when the medication is to be taken, and side effects or food or drug interactions);
- determination of any condition or allergy of Patient that may affect choice of medication;
- explanation regarding follow-up treatments, therapies, test results or recovery;
- blood donations or apheresis (removal of blood components);
- discharge planning and discharge instructions;
- provision of mental health evaluations, group or individual therapy, counseling and other therapeutic activities, including but not limited to grief counseling and crisis intervention;
- explanation of complex billing or insurance issues that may arise;
- educational presentations, such as classes concerning birthing, nutrition, CPR, and weight management;
- any other circumstance in which a qualified sign language interpreter is necessary to ensure a Patient's rights provided by law.
The foregoing list of circumstances is neither exhaustive nor mandatory, and shall not imply that there are not other circumstances when it may be appropriate to provide interpreters for effective communication nor that an interpreter must always be provided in these circumstances.
- Chosen Method for Obtaining Interpreters. Within thirty (30) days after execution of this Settlement Agreement, the Hospital will identify one or more sign language interpreter services and will make appropriate arrangements with said services to provide qualified sign language and oral interpreters at the request of the Hospital.
- Provision of Sign Language Interpreters Throughout a Hospitalization. Methodist LeBonheur Healthcare will develop a policy and implement procedures to ensure that once a deaf or hard-of-hearing Patient has been hospitalized and the assessment described in paragraphs 21-25 of this Settlement Agreement has determined that a qualified sign language interpreter is necessary to achieve effective communication during the hospitalization of the Patient, sign language interpreters are made available to cover important post-surgery sessions, doctor rounds, and other physician-patient meetings, without the Patient or Companion having to renew the request for a sign language interpreter. Methodist LeBonheur Healthcare will provide notice to all deaf and hard-of-hearing Patients and Companions of this policy.
- Provision of Interpreters in a Timely Manner.
- Non-scheduled Interpreter Requests: Time Standards. "Non-scheduled interpreter requests" means a request for an interpreter which is made during the appearance at the Hospital by a deaf or hard-of-hearing Patient or Companion for examination or treatment that was not scheduled prior to the time such Patient or Companion came to the Hospital. For non-scheduled interpreter requests, Hospital personnel will make the Hospital's request for an interpreter within fifteen (15) minutes after completing the assessment described in paragraphs 21-25, above. Methodist LeBonheur Healthcare's will meet the following overall time standards for providing qualified sign language interpreters to deaf or hard-of-hearing Patients and/or Companions. Methodist LeBonheur Healthcare will maintain a response time of one (1) hour in eighty percent (80%) of non-scheduled interpreter requests within any six (6) month period. Deviations from the standard response time will be addressed with the interpreting service provider, and performance goals will be reviewed with the U.S. Attorney's Office.
- Scheduled Incidents. For "scheduled incidents," Methodist LeBonheur Healthcare will make a qualified sign language interpreter available at the time of the scheduled appointment. "Scheduled incidents" are situations in which there are two (2) or more hours between the time when a Deaf or hard-of-hearing Patient or Companion makes a request for an interpreter and when the services of the interpreter are required. If an interpreter fails to arrive for the scheduled incident, the Hospital will immediately call the interpreter service for another qualified sign language interpreter upon notice that the interpreter failed to arrive.
- Data Collection on Interpreter Response Time and Effectiveness: Feedback Forms. Methodist LeBonheur Healthcare will monitor the performance of each qualified sign language interpreter it uses to provide communication to deaf or hard-of-hearing Patients or Companions. As part of the Auxiliary Aid and Service Log, described in Section paragraph 27 of this Settlement Agreement, the Hospital shall collect information regarding response times for each request for an interpreter. Methodist LeBonheur Healthcare shall also prepare a form requesting feedback concerning the timeliness and effectiveness of interpreter services. Such feedback form shall be provided to each deaf or hard-of-hearing Patient or Companion who requested an interpreter. Methodist LeBonheur Healthcare shall use the feedback forms for monitoring and evaluating the performance of each interpreter it provides to Patients and Companions. The Administrator shall maintain the completed feedback forms for the Term of this Settlement Agreement.
- Video Interpreting Services. Video interpreting services can provide immediate, effective access to interpreting services seven days per week, twenty-four hours a day in a variety of situations including emergencies and unplanned incidents and can also be used as a stop-gap measure until a qualified interpreter is available. When using video interpreting services, Methodist LeBonheur Healthcare shall ensure that a) the service delivers high quality, clear, delay-free full-motion video and audio over a dedicated high-speed Internet connection; b) the service provides a clear and sharply delineated picture of the interpreter's and the Patient's or Companion's heads, arms, hands, and fingers, regardless of the body position of the Patient or Companion; and c) voices being transmitted are clear and easily understood. Provision of Video Interpreting Services shall be provided in accordance with the conditions provided in Exhibit C. Within 120 days of the execution of this settlement agreement Methodist LeBonheur Healthcare shall establish the capability for offering video interpreting services.
- Modification of Performance Standards. In the event that the response time standards described in paragraph 35 of this Settlement Agreement cannot be maintained despite Methodist LeBonheur Healthcare's good faith efforts, the Hospital is entitled to request the consent of the United States to such modifications of the response time standards as may be reasonable under the circumstances. The United States will consider any such request reasonably and in good faith, and any such modification to which the parties agree will be deemed an amendment to this Settlement Agreement.
- Compliance with Applicable Laws. The consent of the United States in this Settlement Agreement does not affect Methodist LeBonheur Healthcare's independent responsibilities under any applicable federal, state, or local laws or regulations.
- Staff Interpreters. Methodist LeBonheur Healthcare may, but has no obligation to, satisfy its sign language interpreter obligations under this Settlement Agreement by hiring qualified staff and/or contract interpreters. Staff interpreters must meet the definition of "qualified sign language interpreter," as detailed in this Settlement 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 the Hospital is otherwise obligated to provide under this Settlement Agreement. Methodist LeBonheur Healthcare 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 Settlement Agreement.
- Notice to Deaf or 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, Methodist LeBonheur Healthcare will inform such a person (or a family member or friend, if such person is not available) of the current status of efforts being taken to secure a qualified interpreter on his or her behalf. The Hospital will provide additional updates to the Patient or Companion as necessary until an interpreter is secured. Notification of efforts to secure a qualified sign language interpreter does not lessen Methodist LeBonheur Healthcare's obligation to provide qualified interpreters in a timely manner as required by paragraph 35 of this Settlement Agreement.
- Other Means of Communication. Methodist LeBonheur Healthcare 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 Methodist LeBonheur Healthcare's obligation to provide qualified sign language interpreters in a timely manner as required by paragraph 35 of this Settlement Agreement.
- 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, Methodist LeBonheur Healthcare 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 waiver of a qualified sign language interpreter is made in the Patient's chart or records. This provision in no way lessens Methodist LeBonheur Healthcare's obligation to provide appropriate auxiliary aids and services as required under this Settlement Agreement.
Notice to Community
- Policy Statement. Within ninety (90) days of the entry of this Settlement Agreement, the Hospital shall 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 shall be 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 "TTY's."
- Website. The Hospital will include on its website the policy statement described above.
- 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 and their 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, televisions with caption capability or 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 Information Office at __________(voice or TTY), room_______________ .
The Hospital will also include in its Handbook a description of its complaint resolution mechanism.
- Format of Notices. Within sixty (60) days of the effective date of this Agreement, the Hospital will make the following information available in American Sign Language (ASL) using videotape, DVD, or CD-ROM format:
- the Patient's Bill of Rights;
- health care directives;
- information regarding the Hospital's policies and procedures governing free sign language interpreter services, including the contents of the Hospital's feedback form concerning the effectiveness and timeliness of interpreters that the Hospital provides, and
- complaint resolution procedures.
Notice to Hospital Personnel and Physicians
- The Hospital shall 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 for use by persons working at the Hospital. This policy statement shall include, but is not limited to, language to the following effect:
If you recognize or have any reason to believe that a Patient, relative, or close friend or Companion of a Patient is deaf or hard-of-hearing, you must advise the person that appropriate auxiliary aids and services, such as sign language and oral interpreters, TTY's note takers, written materials, telephone handset amplifiers, assistive listening devices and systems, telephones compatible with hearing aids, televisions with captioning or closed caption decoders, and open 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. AU other personnel should direct that person to the appropriate Program Administrator at ____________and reachable at_____________ . This offer and advice must likewise be made in response to any overt request for appropriate auxiliary aids or services.
The Hospital will distribute this document within thirty (30) days of the entry of this Settlement Agreement to all Hospital personnel and both employed and affiliated physicians (physicians with practicing or admitting privileges), and to all new Hospital personnel and newly employed or affiliated physicians upon their affiliation or employment with the Hospital. In addition, this statement will also be distributed to all Hospital personnel and employed and affiliated physicians on an annual basis.
- Training of Administrators. Methodist LeBonheur Healthcare will provide special mandatory training for the Administrator(s) within sixty (60) days of designation as provided in paragraph 26 of this Settlement Agreement. Such training will be sufficient in duration and content to train the Administrator in:
- the heath care needs of the deaf and hard-of-hearing;
- the various degrees of hearing impairment, language, and cultural diversity in the deaf community;
- identification of communication needs of persons who are deaf;
- the unique needs and problems encountered by late-deafened individuals;
- the psychological implications of deafness and its relationship to interaction with hearing health care professionals;
- recommended and required charting procedures governing requests for auxiliary aids and services;
- types of auxiliary aids and services available in the community and Hospital;
- the proper use and role of qualified sign language interpreters;
- making and receiving calls through TTYs and the relay service;
- the Hospital's complaint resolution procedure described in paragraph 29 of this Settlement Agreement; and
- any other applicable requirements of this Settlement Agreement.
- Training of Emergency Department Personnel. Except for affiliated physicians, who are governed by paragraph 55 of this Settlement Agreement, Methodist LeBonheur Healthcare will provide special mandatory in-service training 2 to Hospital personnel who have Patient responsibility and who work or volunteer in the emergency department. The training will address the special needs of deaf and hard-of-hearing Patients and Companions and will include the following objectives:
- to promptly identify communication needs and preferences of persons who are deaf or hard-of-hearing;
- to secure qualified interpreter services as quickly as possible when necessary; and
- to use, when appropriate, flash cards and pictographs (in conjunction with any other available means of communication that will augment the effectiveness of the communication).
Such training must be provided within 90 days of the effective date of this Settlement Agreement and will be conducted annually thereafter.
- Training of Employee Physicians. Methodist LeBonheur Healthcare will provide specialized mandatory in-service training to physicians who are employed by the Hospital. This training will include the following objectives:
- to promptly identify communication needs and preferences of Patients and Companions who are deaf or hard-of-hearing;
- to secure qualified interpreter services as quickly as possible when necessary; and
- to ensure that their staff members notify Methodist LeBonheur Healthcare of deaf and hard-of-hearing Patients and Companions as soon as Patients schedule admissions, tests, surgeries, or other health care services at the Hospital. Such training must be provided within 120 days of the signing of this Settlement Agreement and will be conducted annually thereafter.
- Training of Psychiatric Personnel and Social Workers. Methodist LeBonheur Healthcare will provide specialized mandatory in-service training to Hospital personnel with Patient responsibility who work in the Department of Psychiatry (or its equivalent) or are members of the Social Work Department (or its equivalent). This training will include the following objectives:
- to promptly identify communication needs and preferences of deaf or hard-of hearing Patients and Companions;
- to secure qualified interpreter services as quickly as possible when necessary; and
- to facilitate appropriate interaction between deaf or hard-of-hearing Patients and other Patients, when appropriate (e.g., group therapy sessions and other times when interaction with persons other than Hospital personnel is encouraged). Such training must be provided within 120 days of the effective date of this Settlement Agreement and will be conducted annually thereafter.
- Training of Telephone Operators. AU Hospital personnel who receive incoming telephone calls from the public will receive special instructions by Methodist LeBonheur Healthcare on using TTYs or relay services to make, receive and transfer telephone calls and will receive training generally on the existence in the Hospital of an Administrator, as detailed in paragraph 26 of this Settlement Agreement, and the complaint resolution process, as described in paragraph 28 of this Settlement Agreement. Such training must be provided within 60 days of the signing of this Settlement Agreement and will be conducted annually thereafter.
- Training of Other Key Personnel. Except for affiliated physicians, who are governed by paragraph 55 of this Settlement Agreement, Methodist LeBonheur Healthcare will also provide special ADA training to the following Hospital personnel not otherwise trained as provided above: all clinical directors and nursing supervisors; personnel who staff the admissions desk (or its equivalent for in-patient registration) a central registry desk (or its equivalent for out-patient registration) and/or a general information desk; all triage nurses and other image professionals; and heads of each department in which communication with Patients and Companions occurs. Hospital personnel responsible for billing and insurance issues who routinely interact with Patients and Companions will receive special training on the availability of auxiliary aids and services and the existence in the Hospital of an Administrator, as described in paragraph 26 of this Settlement Agreement. Such training must be provided within 120 days of the effective date of this Settlement Agreement and will be conducted annually thereafter.
- Training of New Employees. Methodist LeBonheur Healthcare will provide the training specified above to new Hospital personnel within thirty (30) days after the commencement of their services for Methodist LeBonheur Healthcare. Such training must be comparable to training provided to specific departments as necessary. A screening of a video of the original training will suffice to meet this obligation.
- Training Attendance Sheets. Methodist LeBonheur Healthcare will maintain for the duration of this agreement attendance sheets of all training conducted pursuant to paragraphs 48-54 of this Settlement Agreement, which will include the names and respective job titles of the attendees, as well as the date, time, and location of the training session.
- Training of Affiliated Physicians.
- Training Sessions. Methodist LeBonheur Healthcare 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 Methodist LeBonheur Healthcare (admitting or surgical privileges, etc.) to attend. Training may be provided at department meetings, periodic medical staff meetings, or by web site. information. Methodist LeBonheur Healthcare will provide training videotapes or appropriate web site. information containing substantially similar information to any affiliated physician upon request.
- Written materials. Within one hundred and twenty (120) days of the effective date of this Settlement Agreement, Methodist LeBonheur Healthcare win distribute a set of' materials to all affiliated physicians. This material may be distributed through any usual means of distributing information including faxing, mailing ling, email notification, or through training sessions. These materials will direct affiliated physicians to the Methodist MD web page which will include: (1) Methodist LeBonheur Healthcare's policy statement for persons working at the hospital as described in paragraph 46 and any relevant forms; and (2) a request that physicians' staff members notify Methodist LeBonheur Healthcare of those deaf and hard-of-hearing Patients and Companions as soon as they schedule admissions, tests, surgeries, or other health care services at a Hospital.
Reporting, Monitoring and Violations
- Compliance Reports. Beginning three months after the effective date of this Settlement Agreement and every six months thereafter for the entire duration of the Settlement Agreement, Methodist LeBonheur Healthcare will provide a written report ("Compliance Report") to the U.S. Attorney's Office regarding the status of its compliance with this Settlement Agreement. The Compliance Report will include data relevant to the Settlement Agreement, including but not limited to:
- the number of requests for qualified sign language interpreters received by Methodist LeBonheur Healthcare by deaf and hard-of-hearing Patients and Companions;
- the number of times a qualified sign language interpreter was provided by Methodist LeBonheur Healthcare's;
- the number of times Methodist LeBonheur Healthcare denied a request for a qualified sign language interpreter and the reason for the denial;
- the number of times a request for a qualified sign language interpreter was accepted by Methodist LeBonheur Healthcare but the interpreter failed to appear and the reasons for the failure;
- the date and the time a qualified sign language interpreter was requested by a Deaf or hard-of-hearing Patient or Companion and the date and time the interpreter actually began interpreting for such Patient or Companion;
- 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 paragraph 35 of this Settlement Agreement, is more than one (I) hour for any request; and
- the number of complaints received by Methodist LeBonheur Healthcare at the Hospital by deaf and hard-of-hearing Patients and Companions regarding auxiliary aids and services and/or effective communication, and the resolution of such complaints including any supporting documents.
Methodist LeBonheur Healthcare will maintain appropriate records to document the information contained in the Compliance Reports and will make them available, upon request, to the U.S. Attorney's Office.
- Complaints. During the Term of this Settlement Agreement, Methodist LeBonheur Healthcare will notify the U.S. Attorney's Office if any person commences a lawsuit, complaint, charge, or grievance alleging that Methodist LeBonheur Healthcare 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 twenty (20) days of the date Methodist LeBonheur Healthcare received notice of the allegation and will include, at a minimum, the nature of the allegation, the name of the person making the allegation, and any documentation possessed by Methodist LeBonheur Healthcare relevant to the allegation. Methodist LeBonheur Healthcare will reference this provision of the Settlement Agreement in the notification to the U.S. Attorney's Office.
Compensatory Relief for Complainant and Release
- Within ten (l0) days of the entry of this Settlement Agreement, the Hospital will send by certified mail, return receipt requested, a check in the amount of forty thousand ($40,000) dollars made out to Lee Amos Blair. This check is compensation pursuant to 42 U.S.C. § 12188(b)(2)(B), for the effects of the alleged discrimination suffered as described in paragraph 4. The check shall be mailed to: Office of the United States Attorney, Suite 811, 200 Jefferson Avenue, Memphis, TN 38103, Attn: Gary Vanasek.
- Within five (5) days of the effective date of this Agreement, the United States will deliver to counsel for the Hospital a release signed by Lee Amos Blair. The release will be substantially in the form of Exhibit B.
Payment of Penalty to the United States
- Within thirty (days) of the effective date of this Settlement Agreement, the Hospital will pay to the United States of America the sum of three thousand ($3,000.00) dollars pursuant to 42 U.S.C. § 12188(b)(2)©.
Enforcement and Miscellaneous
- Duration of the Settlement Agreement. This Settlement Agreement will be in effect for three (3) years from the date hereof, after which time the Agreement shall end; provided, however, the Agreement shall terminate in two years from the effective date if both of the following conditions are met: (1) Methodist LeBonheur Healthcare is in compliance as of the second anniversary of the effective date of this Agreement, with all provisions and obligations set forth in the Agreement; and (2) in the event that there has been an allegation of a violation of any of the aforesaid paragraphs, there has been an investigation and response by Methodist LeBonheur Healthcare that the United States considers to be effective, timely and adequate.
- Changing Circumstances. During the term in which this Settlement 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 and Companions who are deaf or hard-of-hearing 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, it may propose changes to this Agreement by presenting written proposals to the United States Attorney's Office. Such changes will then be made to the Agreement if the United States, upon review, grants its approval, which approval will not be unreasonably withheld.
- Enforcement. The Attorney General is authorized, pursuant to section 308(b)(I)(B) of the Act, to bring a civil action under Title III, enforcing the ADA in any situation where a pattern or practice of discrimination is believed to exist or a matter of general public importance is raised. In consideration of the terms of this agreement as set forth above, the Attorney General agrees to refrain from undertaking further investigation or from filing a civil suit under Title III in this matter, except as provided in paragraph 64, below. Nothing contained in this Settlement Agreement is intended or shall be construed as a waiver by the United States of any right to institute proceedings against Methodist LeBonheur Healthcare for violations of any statutes, regulations, or rules administered by the United States or to prevent or limit the right of the United States to obtain relief under the ADA.
- Enforcement. The United States may review compliance with this settlement agreement at any time and can enforce this Settlement Agreement if the United States believes that it or any requirement thereof has been violated by instituting a civil action in U.S. District Court. If the United States believes that this Settlement Agreement or any portion of it has been violated, it will raise its clone(s) in writing with Methodist LeBonheur Healthcare, and the parties will attempt to resolve the concern(s) in good faith. The United States will allow Methodist LeBonheur Healthcare with twenty-one days from the date it notifies Methodist LeBonheur Healthcare of any breach of this settlement agreement to cure said breach, prior to instituting any court action to enforce the ADA and the terms of the Agreement.
- Entire Agreement. This agreement and the attachments hereto constitute the entire agreement between the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written agreement, shall be enforceable. This agreement is limited to the facts set forth herein and does not purport to remedy any other potential violations of the ADA or any other federal law.
- Binding. This Settlement 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.
- Non-Waiver. Failure by any party to seek enforcement of this Settlement Agreement pursuant to its terms with respect to any instance or provision shall not be construed as a waiver to such enforcement with regard to other instances or provisions.
For the United States of America:
United States Attorney
Gary A. Vasek, Assistant
United States Attorney
200 Jefferson Avenue
Memphis, TN 38103
For Methodist LeBonheur Healthcare
Executive Vice-President and Chief
Methodist LeBonheur Healthcare
1211 Union Avenue
Memphis, TN 38104
Model Communication Assessment Form
We ask this information so we can communicate effectively with Patients and/or Companions who are deaf or hard of hearing effectively. All communication aids and services are provided FREE OF CHARGE. If you need further assistance, please ask your nurse or other hospital personnel.
Name of Patient or Companion:
Nature of Disability:
Hard of Hearing
Relationship to Patient:
Does the person with a disability want a professional sign language or oral interpreter?
Yes. Choose one (free of charge):
American Sign Language (ASL)
Other. Explain: _________________
Which of the following would be helpful for the person with a disability? (free of charge)
TTY/TDD (text telephone)
Assistive listening device (sound amplifier)
Writing back and forth
Other. Explain: __________________
If the person with a disability, or the Patient who the person with a disability is with, is
ADMITTED to the hospital, which of the following should be provided in the patient room?
Telephone handset amplifier
Telephone compatible with hearing aid
Flasher for incoming calls
Paper and pen for writing notes
Other. Explain: __________________________________
Please call _________(voice),_______________ (TTY), or visit us during normal business hours. We are located in room ____________________________
I, Lee Amos Blair, execute this Release for the benefit of Methodist LeBonheur Healthcare ("Hospital").
WHEREAS, I originally claimed that the Hospital discriminated against me which resulted ina complaint filed with the United States Attorney's Office for the Western District of Tennessee (the "United States") because of the Hospital's alleged failure to provide appropriate auxiliary aids and services necessary for effective communication;
WHEREAS, the United States engaged in Settlement negotiations on behalf of itself and me;
WHEREAS, the United States and the Hospital have agreed to a settlement in this matter (the "Settlement"),
WHEREAS, the Settlement reached is contingent on my execution of this Release:
NOW THEREFORE, in consideration of the mutual promises and covenants contained herein and in consideration of the payment to me of the sum of forty thousand ($40,000.00) dollars as set forth in the Settlement Agreement, I agree as follows:
1. I hereby release and forever discharge the Hospital, its subsidiaries, successors" assigns, shareholders, directors, officers, agents, heirs, and current and former employees from any and all causes, suits, reckonings, whether in law or equity, known or unknown, and claims for attorneys' fees, costs, interest and claims for any other damages, whether that be compensatory, exemplary, punitive or any other form, and any other claim whatsoever, which I Now have or have ever had, relating to or arising (or could have arisen) from my charge of discrimination or the allegations of this Settlement Agreement attached hereto.
2. I agree and promise that 1will not file suit in any judicial or administrative forum against the Hospital concerning any allegations made in my charge or in the Settlement Agreement attached hereto.
3. I understand and agree that I am settling and releasing my claims against the Hospital. I understand the legal significance of this Release and have had the opportunity to consult with legal counsel concerning the terms and conditions of this Release.
4. This Release is a two-page document. By signing below, I agree to all terms contained in this Release. 1further acknowledge that I have entered into this Release voluntarily and of my own free will.
Sharon K. Brown
Pursuant to Power of Attorney
On Behalf of Lee Amos Blair
Date: August 28 , 2007
Clark & McGill, P.C.:
ATTORNEYS AT LAW
230 South Broad Street • 2nd Floor e Philadelphia, PA 19102,4121
Telephone: (215) 735-5300 • Facsimile: (215) 735-5314
|Hugh C. Clark*
Thomas J. McGiIl, Jr.
Harry R. Seay
James R. lngram .
*Member of PA and NJ bar
|NEW JERSEY OFFICE:
2428 Route 38
Cherry Hill, NJ 08002, 1240
Phone: (856) 321-0110
DURABLE POWER OF ATTORNEY
Know All Men By These Present, that I, Lee Amos Blair of 1094 E. Mclemore, Avenue, Unit 9, Memphis, Tennessee, 38106, do hereby appoint my Niece, Sharon K. Brown of 709 Atwood Road, Philadelphia, Pa, 19151, my true and lawful attorney for me and on my behalf and in my name to perform all such acts as she may deem advisable in her absolute discretion as fully as I could do if personally present, including, without limitation, any of the following:
- To receive any and all monies and other assets now or hereafter due to me from any source.
- Deposit the same in any bank accounts in my name or her name as my attorney-in-fact. To have access to any and all bank safe deposit boxes and storage facility.
- To pay any and all bills, accounts and debts which may be due to me at any time.
- To draw and sign checks withdraw slips and other orders for the payment of money upon any bank accounts belonging to me.
- To borrow money and pledge or mortgage any properties owned by me as security therefore.
- To purchase. rent and otherwise acquire any properties. real and personal, including securities, for me.
- To sign, acknowledge and deliver any and an deeds, agreements, proxies" receipts, releases and satisfactions.
- To make gifts.
- To create a trust for my benefit
- To make additions to my existing trust for my benefit.
- To disclaim my interest in property.
- To renounce fiduciary position.
- To withdraw and receive the income or corpus of any trust
- To authorize my admission to a medical, nursing residential or similar facility and to enter into agreement for my care.
- To authorize medical and surgical procedures.
- To sign and file any and all tax returns. elections, protest, consents, waivers, extensions and closing agreements in any federal, state, or local tax proceedings.
- To compromise any claims, and to engage in litigation on my behalf
- To select an attorney at law to act in my behalf
- To appoint any substitute, with the same powers as though named herein by me.
I hereby ratify and confirm any and all that my said attorney shall do or cause to be done by virtue of these present I specifically direct that my attorney shall not be subject to any liability by reason of her decision, act or failure to act, all of which shall be conclusive and binding upon me, and my estate.
Furthermore, I agree to indemnify my attorney-in-fact, and hold her harmless, from all claims which maybe as a result of her serving as my attorney, and I agree to reimburse her the amount of any damages, cost, and expenses which may be incurred as a result of any such claim.
This Power of Attorney shall not be affected by my subsequent disability or incapacity. I hereby certify that the following is the signature of my said attorney in fact:
Sharon K. Brown
IN WITNESS WHEREOF, intending to be legally bound, I have hereunto set my hand and seal this day of 2005.
Lee Amos Blair
Sworn to and subscribed
before me this 16th day of August, 2005.
My Commission Expires: January 18,2009
Methodist Leone Healthcare shall ensure that appropriate Hospital Personnel are trained, available, and able to operate and connect the VIS system quickly and efficiently at all of the hospitals it operates at all times.
Training shall include attention to the limitations of VIS technology) such as with respect to:
(I) Patients who have limited ability to move their heads, hands, or arms;
(ii) Patients who have vision problems, or cognitive or consciousness issues;
(iii) Patients who are in considerable pain;
(iv) Patients who may be moved to areas of the Hospital that do not have a designated high speed internet line; and
(v) Patients who will be treated in rooms where space configurations mitigate against using the VIS service.
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October 09, 2008