SETTLEMENT AGREEMENT

BETWEEN

JESSIE FOX,

THE UNITED STATES OF AMERICA,

AND

TRINITY REGIONAL MEDICAL CENTER AND TRINITY HEALTH SYSTEMS

DJ#: 202-27-43


I. BACKGROUND AND PARTIES

A. The parties to this Settlement Agreement are Plaintiff Jessie Fox, Plaintiff-Intervenor the United States of America, and Defendants Trinity Health Systems and Trinity Regional Medical Center. Trinity Health Systems is a private, non-profit organization that operates a health care system consisting, inter alia, of hospitals and other health services, including the Trinity Regional Medical Center, located at 802 Kenyon Road, Fort Dodge, Iowa. The closest metropolitan area to the Hospital is approximately two hours away by car.

B. On March 3, 2011, Plaintiff filed this lawsuit against Defendants, alleging, among other things, that they failed to provide her with sign language interpreters and otherwise failed to effectively communicate with her in violation of title III of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12181-12189, and Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. § 794. Plaintiff sought, among other things, monetary damages, injunctive relief, and attorneys’ fees.

C. After Plaintiff filed her lawsuit, the United States Department of Justice (the “Department”) opened an investigation into the allegations made by Plaintiff in order to determine whether Defendants violated title III of the ADA.

D. 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 Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of discrimination or any person or group of persons has been discriminated against and such discrimination raises an issue of general public importance, 42 U.S.C. § 12188(b)(1)(B).

E. After completing its investigation, the United States filed a complaint in intervention in this lawsuit against Trinity Regional Medical Center and Trinity Health Systems claiming that Defendants violated title III of the ADA, 42 U.S.C. §§ 12181-12189, and its implementing regulation, 28 C.F.R. §§ 36.101-36.608, by failing to provide appropriate auxiliary aids and services, including qualified sign language interpreters, when such aids and services were necessary to ensure effective communication with deaf individuals at Trinity Regional Medical Center. The complaint-in-intervention also alleges that Defendants discriminated against friends and family of deaf patients by forcing them to serve as sign language interpreters when they were neither qualified nor willing to do so, in violation of 42 U.S.C. § 12182(b)(1)(E).

F. This Court has jurisdiction of this action under 28 U.S.C. §§ 1331 and 1345, and 42 U.S.C. § 12188. The parties agree that venue is appropriate.

G. Trinity Health Systems is the parent corporation of Trinity Regional Medical Center (the “Hospital”), and is responsible for overseeing its operations, making Trinity Health Systems a public accommodation. 42 U.S.C. § 12182(a); 42 U.S.C. § 12181(7)(F). Trinity Regional Medical Center is also a public accommodation because it is a private entity that operates a place of public accommodation – i.e., a hospital. Id.

H. 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. 42 U.S.C. § 12188(b)(1)(B). The Attorney General has reasonable cause to believe that Defendants have engaged in a pattern or practice of discrimination under title III of the ADA, 42 U.S.C. 12188(b)(1)(B)(i).

I. Defendants recognize that the United States and Plaintiff claim Defendants violated title III of the ADA by failing to provide sign language interpreters as requested and where necessary for effective communication to deaf individuals during hospital visits from December 2008 to March 2011. While Defendants dispute the allegations, they recognize that individuals who are deaf or hard of hearing are entitled to the full and equal enjoyment of the services, privileges, facilities, advantages, and accommodations of Trinity Regional Medical Center under the ADA. Moreover, Defendants acknowledge that under title III of the ADA they cannot require friends and family of deaf patients or companions to serve as sign language interpreters when they are neither willing nor qualified to do so.

J. As a result of ongoing discussions, the United States, Plaintiff Fox, and Defendants agree that it is in their best interest, and the United States believes that it is in the public interest, to resolve this lawsuit on mutually agreeable terms without further litigation. Accordingly, the parties agree to the terms of this Settlement Agreement without trial or further adjudication of any issues of fact or law.

K. The parties agree that the Court shall retain jurisdiction over the Private Plaintiff’s and the United States’ action to enforce the terms of this Settlement Agreement.

In resolution of this action, the parties hereby AGREE to the following:

II. DEFINITIONS

A. The term “auxiliary aids and services” may include but is not limited to: qualified interpreters on-site or through video remote interpreting (VRI) services; notetakers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning (for video display or education, for example); voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing. 28 C.F.R. § 36.303(b)(1) (effective March 15, 2011).

B. The term “Companion” means: a person who is deaf or hard of hearing and is either (a) a person whom the patient, consistent with privacy regulations, 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; (b) a person legally authorized to make health care decisions on behalf of a patient; or (c) such other person with whom the hospital personnel would ordinarily and regularly communicate with concerning the patient’s medical condition including, but not limited to, the patient’s next of kin or health care surrogate. When the term “companion” is not capitalized, it shall have its ordinary meaning.

C. The term “Hospital Personnel” means: all employees, agents, and independent contractors of the Hospital, including, without limitation, nurses, physicians, social workers, technicians, admitting personnel, billing staff, security staff, therapists, and all volunteers.

D. The term “non-scheduled incidents” are situations in which there are fewer than thirty-six (36) hours between the time when a “Patient” or a “Companion” (as defined in this Agreement) makes a request for an interpreter (or when the circumstances indicate that there is a need or desire for an interpreter) and the time when the services of an interpreter are desired; except when the request for an interpreter or circumstances indicate there is a need or desire for an interpreter occurs between 8:00 p.m. on a Friday and 11:59 p.m. on a Saturday, at which point “non-scheduled incidents” are those when there are less than 48 hours notice of the need for interpreter services. The term “scheduled incidents” are appointments or situations in which there are thirty-six (36) or more hours between the time when a “Patient” or a “Companion” (as defined in this Agreement) makes a request for an interpreter (or when the circumstances indicate that there is a need or desire for an interpreter) and when the services of the interpreter are desired; except when the request for an interpreter or circumstances indicate there is a need or desire for an interpreter occurs between 8:00 p.m. on a Friday and 11:59 p.m. on a Saturday, at which point “scheduled incidents” are appointments or situations where there are more than 48 hours notice of the need for interpreter services.

E. The term “Patient” means: a person who is deaf or hard of hearing and is seeking and/or receiving services, accommodations, privileges, or advantages at Trinity Regional Medical Center. When the word “patient” is not capitalized, it shall have its ordinary meaning. Whenever the Hospital is required to consult, interview, or otherwise take into account the wishes of a Patient under this Agreement, and the Patient is a minor or relies upon others to make decisions about medical care for himself or herself, the Hospital shall take the required action as if the Patient’s adult guardian is the Patient (i.e., the adult guardian makes the requests for auxiliary aids and services on behalf of the minor Patient), unless the Patient is otherwise by law competent to consent to treatment.

F. The term “sign language interpreter,” “oral interpreter,” or “interpreter” means: an interpreter who is able to interpret competently, accurately and impartially, both receptively and expressively, using any specialized medical terminology for a “Patient” or a “Companion” (as defined in this Agreement) who is deaf or hard of hearing. Someone who has only a rudimentary familiarity with sign language or finger spelling is not a “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 sign language interpreter.

G. 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.

H. The term “video remote interpreting” (VRI) means an interpreting service that uses video conference technology and provides “(1) [r]eal-time, full-motion video and audio over a dedicated high-speed, wide-bandwidth video connection or wireless connection that delivers high-quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in communication; (2) [a] sharply delineated image that is large enough to display the interpreter's face, arms, hands, and fingers, and the participating individual's face, arms, hands, and fingers, regardless of his or her body position; (3) [a] clear, audible transmission of voices; and (4) [a]dequate training to users of the technology and other involved individuals so that they may quickly and efficiently set up and operate the VRI. 28 C.F.R. § 36.303(f).

III. TERMS

1. Effective Communication and Equal Access

The Hospital shall provide appropriate auxiliary aids and services, including qualified sign language interpreters, where such aids and services are necessary to ensure effective communication with Patients and Companions. Pursuant to 42 U.S.C. § 12182(a), the Hospital shall also provide Patients and Companions with the full and equal enjoyment of the services, privileges, facilities, advantages, and accommodations of the Hospital as required by this Agreement and the ADA.

The Hospital shall 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. See 42 U.S.C. § 12182(b)(1)(E).

The Hospital shall not retaliate against or coerce in any way any person who made, or is making, a complaint according to the provisions of this Agreement or exercised, or is exercising, his or her rights under this Agreement or the ADA. See 42 U.S.C. § 12203.

The Hospital shall implement and follow the requirements set forth below within ninety (90) days of entry of this Agreement, except where a particular provision sets forth a different deadline.

2. Patient Intake for Non-Scheduled Incidents

A. At the first opportunity to interact with a patient or, where appropriate, a patient’s companion, which may come at the time an appointment is scheduled or upon notification that an individual is being transported to the Hospital but not later than the arrival of a patient to the Hospital, Hospital Personnel shall inquire into whether the patient and any of the patient’s accompanying companion(s) is/are deaf or hard of hearing.

B. If there is any indication from such inquiry or from Hospital Personnel’s observations or interactions with the patients, companions, or guardians that they may be deaf or hard of hearing, Hospital Personnel shall immediately provide the patient and/or the companion with a Deaf or Hard of Hearing Communication Request Form (“Form”), whether in paper or electronic form. See attached Exhibit A. Hospital Personnel shall assist in filling out the Form, if necessary, including filling it out in advance of the patient’s arrival to the Hospital. The Form shall be filled out by either the Patient and/or the Companion, or may be completed by Hospital Personnel based exclusively on the information provided by those individuals. A separate Form shall be completed for each individual Patient or Companion. After being completed, the Form(s) shall be maintained in the patient’s medical chart.

C. If a patient identifies a Companion who is not presently at the Hospital but is expected at the Hospital during the patient’s stay, Hospital Personnel shall provide the patient with the contact information of Hospital Personnel who can assist the Companion in completing a Deaf or Hard of Hearing Communication Request Form in advance of arriving at the Hospital and with the contact information of Hospital Personnel who can assist the Companion in completing the Form at the Hospital (if the Form is not completed in advance). If at any point during a patient’s stay, a Companion identifies himself or herself as deaf or hard of hearing, the Hospital shall promptly provide him/her with the Form, if it has not done so already.

D. In the event that circumstances indicate that a patient is deaf or hard of hearing, but a Form cannot be completed by or on behalf of the patient due to exigent circumstances (e.g., incapacitation of non-minor Patient), Hospital Personnel shall promptly comply with the requirements set forth in Paragraph 3(A) below, and shall facilitate completing the Form as soon as practicable thereafter.

E. If a Patient or Companion has an ongoing relationship with the Hospital, with respect to each of the subsequent visits, the Hospital shall not require the Patient or Companion to complete a Deaf or Hard of Hearing Communication Request Form for each visit. Hospital Personnel will keep appropriate records that reflect the ongoing request for and provision of auxiliary aids and services to Patients and Companions, and shall use the Patient’s or Companion’s prior Deaf or Hard of Hearing Communication Request Form, unless the Patient and/or Companion indicates otherwise (in which case a new Form shall be filled out and kept on file).

F. The patient’s medical chart shall be conspicuously labeled (such as with a sticker or label on the cover) to alert Hospital Personnel to the fact that the Patient or Companion is deaf or hard of hearing. If the Hospital maintains the patient’s medical chart in electronic format, a similar label shall be placed in the electronic record.

3. Provision of Interpreter

A. Non-Scheduled Incidents

1. Regarding non-scheduled incidents, if on the Deaf or Hard of Hearing Communication Request Form, the Patient or Companion

a. expresses a preference for VRI over an on-site interpreter, the Hospital shall have the VRI computer equipment set up, logged on, and available to the Patient or Companion as soon as practicable but no later than 15 minutes after filling out the Form or arrival to the Hospital (if a completed Form is already on file for such individual). An online interpreter shall be available to the Patient or Companion via the VRI service as soon as practicable, but no later than 25 minutes from log-on, provided that any delay between 10 to 25 minutes from the time of logon to the time an online interpreter is secured is permissible only when such delay is caused by the VRI provider, not Hospital personnel or equipment. The VRI equipment shall stay with the Patient or Companion for the duration of the patient’s stay and shall be used by the Patient or Companion, subject to the limitations contained in Paragraph II.5(D);

b. has not expressed a preference between an on-site interpreter and VRI or cannot fill out the Form and no Form is on file for such individual but there is some indication that he/she would benefit from an interpreter, the Hospital shall, at a minimum, have the VRI computer equipment set up, logged on, and available to the Patient or Companion as soon as practicable, but no later than 15 minutes after filling out the Form or arrival to the Hospital (if the Form cannot be filled out and a Form is not on file with the Hospital). An online interpreter shall be available to the Patient or Companion via the VRI service as soon as practicable but no later than 25 minutes from log-on, provided that any delay between 10 to 25 minutes from the time of logon to the time an online interpreter is secured is permissible only when such delay is caused by the VRI provider, not Hospital personnel or equipment. The VRI equipment shall stay with the Patient or Companion for the duration of the patient’s stay and shall be used by the Patient or Companion (if VRI is not substituted by an on-site interpreter), subject to the limitations contained in Paragraph II.5(D);

c. has expressed a preference for an on-site interpreter and the patient is expected to be in the Hospital for less than twelve (12) hours, the Hospital shall, at a minimum, have the VRI computer equipment set up, logged on, and available to the Patient or Companion as soon as practicable, but no later than 15 minutes after filling out the Form or arrival to the Hospital (if a completed Form is already on file for such individual). An online interpreter shall be available to the Patient or Companion via the VRI service as soon as practicable but no later than 25 minutes from log-on, provided that any delay between 10 to 25 minutes from the time of logon to the time an online interpreter is secured is permissible only when such delay is caused by the VRI provider, not Hospital personnel or equipment. The VRI equipment shall stay with the Patient or Companion for the duration of the patient’s stay and shall be used by the Patient or Companion (if VRI is not substituted by an on-site interpreter), subject to the limitations contained in Paragraph II.5(D); and

d. has expressed a preference for an on-site interpreter and the patient is expected to be in the Hospital twelve (12) hours or more (or for a Patient or Companion who expressed a preference for an on-site interpreter and was originally expected to be in the Hospital less than twelve (12) hours but whose Hospital stay has exceeded that length of time), the Hospital shall – in addition to doing what is required in Paragraph II.3(A)(1)(c) above – make “Reasonable Efforts” to secure an on-site interpreter. “Reasonable Efforts” mean that Hospital Personnel must, within thirty (30) minutes of providing VRI for the Patient or Companion and at least once during each business day thereafter for the duration of the patient’s stay, make inquiries with at least three (3) different interpreter agencies1 to determine the earliest possible date/time that an on-site interpreter can be provided to the Hospital. The Hospital shall document its efforts on the Steps Taken to Secure an On-Site Interpreter Sheet. See Attached Exhibit B. In situations where an on-site interpreter was not secured, the Hospital shall obtain from interpreter agencies information about their efforts to secure an interpreter. Hospital shall contract with the on-site interpreter or interpreter agency that can provide the earliest available interpreter, except that the Hospital is not required to contract with such interpreter or agency if the interpreter will arrive within one (1) hour of the anticipated discharge of the patient. If after making Reasonable Efforts to secure an on-site interpreter, the Hospital cannot find one that can arrive to the Hospital prior to one (1) hour of the anticipated discharge of the patient, the Hospital shall continue to rely on VRI, subject to the limitations contained in Paragraph II.5(D).

e. Nothing in this Agreement shall prohibit or prevent the Hospital from providing greater access to on-site interpreters.

B. Scheduled Incidents

For scheduled incidents in which a Patient or Companion requests an on-site interpreter or expresses a preference for one, the Hospital shall provide an on-site interpreter at the scheduled time of the incident or appointment. For scheduled incidents in which a Patient or Companion requests VRI or does not express a preference between VRI and on-site interpreting, the Hospital shall ask the Patient or Companion for a preference. If there is still no preference, the Hospital shall provide the Patient or Companion, at a minimum, with VRI at the scheduled time of the incident or appointment and for the duration of such incident or appointment, subject to the limitations contained in Paragraph II.5(D).

C. In all instances in which an on-site interpreter has been provided, Hospital Personnel shall initiate an interactive discussion with the Patient or Companion (or both, if both are hearing impaired) with the use of the interpreter, in order to determine the interpreter schedule over the anticipated duration of the patient’s stay. If the Companion is not available for such discussion, Hospital Personnel shall initiate the discussion with the Companion as soon as practicable upon becoming aware of his or her return to the Hospital. The Hospital shall be responsible for creating the interpreter schedule and shall determine the duration and frequency that on-site interpreters are provided over the duration of the patient’s stay; however, such schedule shall be created giving substantial weight to the Patient’s or Companion’s preference after conducting the interactive discussion, which will include, at a minimum, the factors set forth in Paragraph II.3(D). Such schedule may never provide less than what is necessary to ensure effective communication with the Patient and/or Companion.

D. If the patient is expected to be in the Hospital more than forty-eight (48) hours, the dates and times that an on-site interpreter will be provided to the Patient and/or Companion shall be memorialized in an Interpreter Schedule. See “Interpreter Schedule,” attached hereto at Exhibit C. The Interpreter Schedule(s) shall identify the schedule of on-site interpreters for each day that the patient is in the Hospital’s care. The Hospital shall notify the Patient and/or Companion of any changes required to the Interpreter Schedule. When completing the Interpreter Schedule, Hospital Personnel shall consult with the Patient and/or Companion to identify their preferred schedule for an on-site interpreter; to facilitate such consultation, the Hospital shall provide the following information to the Patient and/or Companion:

(i) the anticipated period of time that the patient will be in the Hospital;

(ii) the nature of the patient’s condition, including its seriousness and stability;

(iii) the likelihood of Hospital Personnel or other medical personnel needing to communicate with the Patient or Companion at unexpected or unforeseen times;

(iv) the most common hours that Hospital Personnel will need to communicate with the Patient or Companion; and

(v) the availability of interpreter services free of charge.

E. If a patient whom the Hospital earlier anticipated would be in the Hospital for fewer than forty-eight (48) hours ultimately stays for forty-eight (48) hours or more, the Hospital shall follow the procedures set forth in Paragraph II.3(D), above, within sixty (60) minutes of the patient’s forty eighth (48th) hour or as soon thereafter as the patient’s medical circumstances or the Companion’s circumstances (e.g., if the Companion is no longer present at the Hospital) permit.

F. The Schedule(s) shall be maintained in the patient’s medical chart, and the Patient and/or Companion shall be provided with a copy.

G. Throughout the patient’s stay, Hospital Personnel shall consult with the Patient or Companion periodically to assess the effectiveness of the Interpreter Schedule and to update or modify it, as necessary. Each time a Patient and/or Companion is consulted regarding modifications or updates to the Schedule, Hospital Personnel shall within a reasonable time provide the Patient and/or Companion with the latest information related to Paragraph II.3(D)(i)-(v). Any time a change is made to the Interpreter Schedule, a notation will be made, and the document shall be maintained in the patient’s medical chart.

H. The Hospital shall provide on-site interpreters in conformance with the Interpreter Schedule. Hospital Personnel shall make best efforts to schedule procedures, exams, check-ups, meetings, medical rounds, and consultations with the Patient and/or Companion in accordance with the Interpreter Schedule, except in the case of medical emergencies or unforeseen urgent care matters.

I. If the Patient and/or Companion requests an auxiliary aid or service, other than an on-site interpreter or VRI, at any point during the Hospital stay that is necessary for effective communication, including on the Deaf or Hard of Hearing Communication Request Form, the Hospital shall provide such auxiliary aid or service, within 15 minutes.

J. If a Patient and/or Companion does not request or refuses auxiliary aids and services but Hospital Personnel have reason to believe that such person would benefit from them, Hospital Personnel shall inform the person that auxiliary aids and services, including interpreters, are available free of charge. The Hospital may elect to schedule an on-site interpreter or provide VRI if deemed necessary by the Hospital or medical staff.

K. If a Patient and/or Companion indicates to Hospital Personnel that he or she wants an on-site interpreter after failing to request one on the Deaf or Hard of Hearing Communication Request Form, Hospital Personnel shall provide the Patient or Companion with a new Deaf or Hard of Hearing Communication Request Form. Hospital Personnel shall then comply with the requirements of Paragraphs II.2 and II.3 as if the Patient or Companion had originally requested an interpreter. Both the original Deaf or Hard of Hearing Communication Request Form and the new one shall be kept in the patient’s medical chart.

L. If the Hospital fails to provide a requested auxiliary aid or if it provides one outside of the required time period, the Hospital shall keep a record of such incident, including the date and time that it occurred, the name of the Patient and/or Companion involved, and an explanation for the delay or refusal.

M. The Hospital’s requirements to provide interpreter services 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 of whether the prescribed criteria have been met. Force majeure events are events outside the reasonable control of the Hospital, the interpreter service provider, or the interpreter called to provide service, such as severe 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). In such instances, the Hospital shall make its best efforts to ensure prompt, effective communication by, for example, immediately contacting other interpreter agencies in an attempt to secure another interpreter.

5. Video Remote Interpreting

A. Whenever VRI is provided or used, the Hospital shall comply with 28 C.F.R. 36.303(f). The Hospital shall ensure that appropriate Hospital personnel be trained, available, and able to operate and connect the VRI system quickly and efficiently at all times.

B. Once per week, Hospital staff shall check the VRI software to ensure that the latest updates have been properly installed and test the VRI equipment to make sure that it is working properly.

C. If there is any indication that a Patient or Companion is having difficulty with VRI due to the size of the VRI equipment’s screen, Hospital staff shall immediately connect the VRI service to a large-screen television or a larger computer monitor for the Patient or Companion. Hospital staff shall be trained on how to set up the VRI on larger television screens or computer monitors in a quick manner.

D. If, based on the circumstances, VRI is not providing effective communication after VRI has been provided, the Hospital shall make “Appropriate Efforts” to secure an on-site interpreter. “Appropriate Efforts” mean that Hospital staff must, within fifteen (15) minutes of the circumstances giving rise to ineffective communication and every three (3) hours thereafter, make inquiries with at least three (3) different interpreter agencies to determine the earliest possible date/time that an on-site interpreter can be provided to the Hospital. Hospital shall document its efforts on the Steps Taken to Secure an On-Site Interpreter Sheet. See Attached Exhibit B. In situations where an on-site interpreter was not secured, Hospital shall obtain from interpreter agencies information about their efforts to secure an interpreter. Hospital shall contract with the on-site interpreter or interpreter agency that can provide the earliest available interpreter, except that the Hospital is not required to contract with such interpreter or agency if the interpreter will arrive after the anticipated discharge of the patient.

E. The Hospital may continue to rely on VRI and may use any other appropriate auxiliary aids or service, including the exchange of written notes and using pictographs, until an on-site interpreter is made available or if an interpreter is not available subject to the requirements of Paragraph II.5.D. Subject to the abilities of its electronic medical records system, the Hospital shall keep any written notes used to communicate with a Patient or Companion at any time in the patient’s medical file.

6. Maintenance Log

The Hospital shall maintain a log of each request for auxiliary aids and services with the following information: the patient’s and, if applicable, the Companion’s name; the time and date of the scheduled incident or the words “non scheduled incident” if no scheduled appointment applies to the request; the time and date that the request for an auxiliary aid or service was made (or that circumstances indicated that there was a need or desire for an interpreter) or that the Patient and/or Companion arrived at the Hospital (if they have a Deaf or Hard of Hearing Communication Request Form on file); the type of auxiliary aid or service requested, e.g., whether it was an on-site interpreter or VRI, and whether the Patient or Companion indicated a preference for one over the other, and, if so, which one was preferred; and the time and date the auxiliary aid or service was actually provided and the type of aid or service that was provided (or a statement that the interpreter service was not provided).

Such logs shall be maintained by the Hospital for the Term of the Agreement (as defined herein, infra).

The Hospital shall also maintain a separate log of any problems associated with providing VRI, including any difficulty setting up the VRI service, any blurry or fuzzy images when providing VRI, any delays in setting up the service beyond the time limits set forth in Section II.3, or any audio or visual problems with VRI. For each such incident, the log shall note the date it occurred, the name(s) of the Patient and/or Companion involved, the cause of the difficulty, the course of action taken by the Hospital to resolve the problem, and how long it took to resolve the problem.

7. Complaint Resolution

The Hospital shall follow its complaint resolution process for use by patients and/or companions and will maintain records of all complaints (whether oral or written) made to the Hospital regarding the provision of auxiliary aids and/or regarding the communication needs or desires of Patients or Companions. The Hospital shall further maintain records of any actions taken with respect thereto. The Hospital shall notify persons who are deaf and hard of hearing in writing 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 shall be maintained by the Hospital for the Term of the Agreement (as defined herein, infra). Upon request, the Hospital shall provide the Patient and/or Companion a written response to the complaint in a timely manner.

Within seven (7) days of receipt of any complaint related to auxiliary aids or interpreter services, and/or any complaint related to the communication needs or desires of Patients and/or Companions, the Hospital shall send an electronic message to the Department of Justice, at an email address to be provided, with a copy of any such complaint or, if an oral complaint was made, a description of the complaint and the Hospital’s response.

8. Prohibition of Surcharges

All auxiliary aids and services required by this Agreement shall be provided free of charge to the Patient and/or Companion.

9. Notice to Patients and Companions

As soon as Hospital Personnel have determined that the Hospital will undertake Reasonable or Appropriate Efforts to obtain an on-site interpreter for a Patient and/or a Companion, the Hospital shall inform such person (or a companion, if such person is unavailable) of the current status of efforts being taken to secure an interpreter on his or her behalf. Additional updates are to be provided thereafter as necessary until an on-site interpreter is secured.

10. Restricted Use of Certain Persons to Facilitate Communication

The Hospital may not require, coerce, or rely upon a family member, companion, advocate, patient, or friend of a patient and/or companion to interpret or facilitate communications between Hospital Personnel and a Patient and/or Companion. However, such person may be used to interpret or facilitate communications (1) in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available, or (2) where the individual with a disability specifically requests that the accompanying adult interpret or facilitate communication, the accompanying adult agrees to provide such assistance, and reliance on that adult for such assistance is appropriate under the circumstances. The Hospital shall not rely on a minor to interpret or facilitate communication, except in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available. This provision in no way lessens the Hospital’s obligation to provide appropriate auxiliary aids and services as required under this Agreement.

11. Notice

A. The Hospital shall post and maintain signs of conspicuous size and print, in conformance with the requirements of the ADA Standards for Accessible Design, 28 C.F.R. Part 36, App. A, at 4.30 (2010), at all Hospital admitting stations; the emergency department; nurse’s stations or in the patient and visitor elevator lobby on the same floor; and wherever a Patient’s Bill of Rights is required by law to be posted. The signs shall include the international symbols for “interpreters” and “TTY’s.” Such signs shall state: Are you or your companion deaf or hard of hearing and in need of assistance? If so, please notify Hospital staff so that we can help. To ensure effective communication with patients, their family members, and companions who are deaf or hard of hearing, we provide auxiliary aids and services free of charge, such as: sign language and oral interpreters, TTY’s, video remote interpreting (VRI), written materials, telephone handset amplifiers, pocketalkers, telephones compatible with hearing aids, and open and closed captioning of most Hospital programs.

Please ask your nurse or other Hospital personnel for assistance, or contact ____________.

B. The Hospital shall include the statement identified in Paragraph II.11(A) in a conspicuous place on its Internet and Intranet websites and shall remove any information that indicates a limitation on the type of companions that the Hospital may provide auxiliary aids to.

C. The Hospital shall publish a written policy statement regarding the Hospital’s policy with persons who are deaf or hard of hearing. The policy statement should include, but is not limited to, language that states: “If you recognize or have any reason to believe that a patient or a companion of a patient is deaf or hard of hearing, you must advise the person that auxiliary aids and services such as sign language and oral interpreters will be provided free of charge. If you have any questions, call ____________.” This statement shall also be posted in a prominent place on the Hospital’s Intranet page.

The Hospital shall distribute this written policy statement within ninety (90) days of the effective date of this Agreement to all Hospital Personnel. Thereafter, the Hospital shall distribute this written policy statement to all Hospital Personnel (including affiliated physicians) on an annual basis.

D. Should there be any change to the contact information provided pursuant to Paragraphs II.11(A)-(C), such information shall be updated and redistributed/reposted within five (5) business days of the change.

E. The Hospital shall ensure that any prior notices, signs, documents, or training materials that provide different information on how to secure an interpreter, who to call regarding interpreter services, who is able to receive auxiliary aids or services, or who to contact for auxiliary aids are no longer available at the Hospital.

12. Training of Hospital Personnel

A. Within ninety (90) days, and annually thereafter, the Hospital shall provide mandatory in-service training to Hospital Personnel identified immediately below with the following objectives: to inform them of the new procedures set forth in this Agreement; to inform them of the procedures that they should follow in order to arrange interpreter services or other auxiliary aids; and to educate Hospital Personnel on their obligations under this Agreement. Training shall also include information regarding (i) the differences between American Sign Language and English, and (ii) the limitations associated with lip-reading for many people who are deaf or hard of hearing:

a. Hospital Personnel with patient responsibility who work or volunteer in the Emergency Department;

b. Hospital Personnel with or likely to have patient responsibility, including, without limitation, the following categories and their equivalents: doctors, nurses, nurse’s aides, therapists, social workers, case managers, and medical technicians; and

c. 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 department in which communication with patients or their companions, 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 companions, families and friends; and personnel responsible for billing and insurance issues who routinely interact with patients and their companions, families, and friends.

B. All Hospital Personnel who receive incoming telephone calls from the public shall receive special instructions on using TTY’s, Relay, and video relay to make and receive telephone calls via TTY, Relay, or Video Relay Services (VRS), and shall receive training generally on the existence of the requirements of this Agreement.

C. For persons employed by the Hospital who begin their affiliation with the Hospital after the training sessions required in the immediately preceding provisions (Paragraphs II.12 (A)-(B), the Hospital shall provide the training specified above within sixty (60) days after the individual’s commencement of service to the Hospital.

D. 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.

13. Specific Relief to Complainants

Defendants agree to pay a total sum of $80,000.00 (eighty thousand dollars) to Plaintiff Jessie Fox; $19,000.00 (nineteen thousand dollars) to Janice Fox; $19,000.00 (nineteen thousand dollars) to a trust in the name of, and set up for the benefit of, Addison Nguyen; $40,000.00 (forty thousand dollars) to Renae Gailey; and $40,000 (forty thousand dollars) to Leonard Schnetter. Checks will be made payable to each individual and the Newkirk Law Firm, and will be distributed to the Newkirk Law Firm Trust Account. Payment of these amounts by check or wire transfer shall be rendered to Private Plaintiff’s counsel within fifteen (15) days after Defendants’ receipt of the signed releases attached hereto as Exhibits D-1 through D-5 2 , which counsel for Private Plaintiff shall send via overnight mail to Defendants.

14. Civil Penalty

Defendants shall issue a check or money order in the amount of $20,000 (twenty thousand dollars), payable to the United States Treasury as a civil penalty, pursuant to 42 U.S.C. §12188(b)(2)(C) and 28 C.F.R. § 36.504(a)(3). Counsel for Defendants shall deliver the check or money order, via Federal Express, to counsel for the United States within ten (10) days of the effective date of this Agreement.

IV. REPORTING AND ENFORCEMENT

15. Implementation

A. The Hospital shall coordinate and oversee the Hospital’s compliance with this Agreement, including coordinating and/or conducting trainings, maintaining and providing reports and logs, and creating and modifying forms.

B. The Hospital shall designate one or more individuals who shall be available twenty-four (24) hours per day, seven (7) days per week, to answer questions and provide assistance regarding the use of auxiliary aids and services, and qualified sign language and oral interpreters available under the Agreement. Such individuals shall know where the appropriate auxiliary aids are stored and how to operate them and will be responsible for their maintenance, repair, replacement and distribution. Defendants shall ensure that all auxiliary aids are maintained in good working order and replaced or repaired as necessary.

16. Compliance Reports

Six (6) months after the effective date of this Agreement, and every six (6) months thereafter during the term of this Agreement, Defendants shall provide a written report (“Report”) to the Department of Justice regarding its efforts to comply with this Agreement. Each Report shall provide the Maintenance Log required under Paragraph II.6, as well as any copies of Exhibits A, B, and C that have been created for that reporting period. In the event that the Hospital does not provide the requested auxiliary aids or services to a Patient and/or Companion who has requested them, the Report shall state all of the Hospital’s reasons for not providing such aids or services to the Patient and/or Companion, and any documentation supporting such reasons. In the event that the Hospital does not provide auxiliary aids to a Patient and/or Companion in compliance with the timetable established in Paragraph II.3, the Report shall provide all of the Hospital’s reasons for not meeting the applicable timetable, and any documentation supporting such reasons.

The Report shall also contain copies of the attendance sheets identified in Paragraph II.12(D). Hospital personnel shall maintain appropriate records, including, but not limited to, those described in this Agreement, to document the information contained in the Report. The Hospital shall also provide to the Department of Justice, upon request, all invoices relating to the Hospital’s provision of interpreter aids or services.

17. Complaints

During the term of this Agreement, the Hospital shall notify the Department if any individual brings any lawsuit or administrative charge alleging that the Hospital failed to provide interpretive services or auxiliary aids to Patients and/or Companions. Such notification must be provided in writing via Federal Express to the Department of Justice within seven (7) 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.

18. 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 shall give notice (including reasonable particulars) of such violation to the Hospital’s counsel. Defendants 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 Defendants shall negotiate in good faith in an attempt to resolve any dispute relating thereto; if the parties are unable to reach a satisfactory resolution, the United States may file a Motion with the Court for failure to comply with this Agreement.

19. Term of the Agreement

This Agreement shall become effective as of the date of the last signature below and shall remain in effect for three (3) years from that date.

20. Scope

This Agreement does not purport to remedy any violations or potential violations of the ADA or Section 504 or any other federal law, other than the violations set forth in the United States’ Complaint and the Plaintiff’s Complaint in Fox v. Trinity Regional Medical Ctr., et al.. Further, this Agreement does not include awards for attorney fees to the Plaintiffs, which will be separately addressed between the Plaintiff and Defendants.

21. Binding

This Agreement shall be binding on Trinity Health System and Trinity Regional Medical Center, as well as their agents, employees and contractors. In the event that Defendants seek to transfer or assign all or part of their 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, Defendants shall obtain the written accession of the successor or assign to any obligations remaining under this Agreement for the remaining term of this Agreement.

22. Costs and Expenses

The Defendants shall bear their own costs and expenses associated with, or arising from, the performance of their obligations under this Agreement.

23. 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.

24. Provision of Agreement

The Defendants shall provide a copy of the Agreement to any person upon request and shall issue a notice in the surrounding area newspapers that medical services and interpreters will be provided by the Hospital in order to better support the deaf community.

25. Authority

The signatories represent that they have the authority to bind the respective parties identified below to the terms of this Agreement.

 

AGREED AND CONSENTED TO:

 

FOR THE UNITED STATES:

 

ERIC H. HOLDER, JR.
Attorney General of the United States

 

STEPHANIE M. ROSE
United States Attorney
Northern District of Iowa

 

THOMAS E. PEREZ
Assistant Attorney General

 

EVE L. HILL
Senior Counselor to the Assistant Attorney General
Civil Rights Division

 

_____________________________________
ALLISON J. NICHOL, Chief
KATHLEEN P. WOLFE, Special Litigation Counsel
Disability Rights Section
Civil Rights Division

 

_____________________________________
STEPHANIE WRIGHT
Assistant United States Attorney

 

____________________________________        Date:__________________________

ALBERTO RUISANCHEZ
Deputy Chief
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue NW - NYA
Washington, D.C. 20530
Telephone: (202) 305-1291
Facsimile: (202) 305-9775
Email: alberto.ruisanchez@usdoj.gov
Attorneys for the United States

 

FOR PLAINTIFF JESSIE FOX:

By: ____________________________       Date:____________________________

 

Title:___________________________

 

FOR DEFENDANTS:

By: ____________________________      Date:___________________________

 

Title: ___________________________

Exhibit A

Deaf or Hard of Hearing Communication Request Form

We ask this information so that we can communicate effectively with patients and/or companions who are deaf or hard of hearing. All communication aids and services are provided FREE OF CHARGE. Each person requesting communication aids should complete a separate form. If you need further assistance, please contact _________________________

 

_____________________
Patient’s Name
_________________________
Medical Record #
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Name of Person with Disability (if different than patient)

Nature of Disability:

❏ Deaf

❏ Hard of Hearing

❏ Speech Impairment

❏ Other: ____________________

Relationship to Patient:

❏ Self

❏ Family member

❏ Friend

❏ Other: _____________________

Please select the communication aid(s) you would like to assist you in communicating with Hospital staff during your stay as a patient or companion . Your requests will be carefully addressed by Hospital staff.

❏ Interpreter on-site

American Sign Language (ASL) Signed English Oral interpreter

❏ Video Remote Interpreter

American Sign Language (ASL)    

❏ TTY/TDD (text telephone)

     

❏ Assistive listening device (sound amplifier)

     

❏ Telephone handset amplifier

     

❏ Telephone compatible with hearing aid

     

❏ Flasher for incoming calls (in patient’s room)

     

❏ Other. Explain: _________________________________________

     

No. I do not use sign language and/or do not use interpreters.
No. I prefer to have only family members/friends help with communication.
Name of family member/friend:____________________________________
No. Please state other reason:_______________________________________.

 

If you requested both an interpreter on-site and a video remote interpreter above, do you have a preference between the two?

❏ Yes, I prefer an interpreter on-site

❏ Yes, I prefer video remote interpreter

❏ No, I do not have a preference between the two

If you have any questions, please call ______________ (voice), 515-574-0700 (TTY).
Email at: TRMCInterpreter@ihs.org

 

Completed by: ______________________________
                        (Please print name)

Signature:___________________________________

Date: _____________       Time: _____________

 

Contact Information: ______________    _______________    _______________
                                  Home phone        Cell phone               Email

 

** If at any point during your Hospital visit, you wish to change any of the answers to the questions on this form, please notify _______________.

Exhibit B

Steps Taken to Secure an On-Site Interpreter Sheet

Patient Name:

Name of Person Who Requests On-Site Interpreter (if different from above):

Date:

Time:

Time of Request for an On-Site Interpreter:

Contact #1

Name of Interpreter Agency Co:_____________________       Date Called:_____________________

Time Called:____________________________________

Person who made call:____________________________

Name of person you spoke with:____________________       

Left Message (circle one): Yes    No

When is the earliest date/time that an on-site interpreter can be provided? ______________________________

Contact #2

Name of Interpreter Agency Co:_____________________       Date ________ Called:_____________________

Time Called:____________________________________

Person who made call:____________________________

Name of person you spoke with:____________________       Left Message (circle one): Yes No

When is the earliest date/time that an on-site interpreter can be provided? ______________________________

Contact #3

Name of Interpreter Agency Co:_____________________       Date __________ Called:_____________________

Time Called:____________________________________

Person who made call:____________________________

Name of person you spoke with:____________________       Left Message (circle one): Yes No

When is the earliest date/time that an on-site interpreter can be provided? ______________________________

Contact #4

Name of Interpreter Agency Co:_____________________       Date _______

Called:_____________________

Time Called:____________________________________

Person who made call:____________________________

Name of person you spoke with:____________________       Left Message (circle one): Yes No

When is the earliest date/time that an on-site interpreter can be provided? ______________________________

Contact #5

Name of Interpreter Agency Co:_____________________       Date ___________

Called:_____________________

Time Called:____________________________________

Person who made call:____________________________

Name of person you spoke with:____________________       Left Message (circle one): Yes No

When is the earliest date/time that an on-site interpreter can be provided? ______________________________

Contact #6

Name of Interpreter Agency Co:_____________________       Date ___________

Called:_____________________

Time Called:____________________________________

Person who made call:____________________________

Name of person you spoke with:____________________       Left Message (circle one): Yes No

When is the earliest date/time that an on-site interpreter can be provided? ______________________________

 

***Continue to contact interpreter agencies and fill out such Sheets as required by the Agreement.

Exhibit C

On-Site Interpreter Schedule

Established for: ___________________________
                         (Patient/Companion Name)

 

Patient Name: ___________________________

 

Location (Room/Bed): ___________________________

 

Date

Times that On-Site Interpreter Will be Provided

   
   
   
   
   
   

Included in this schedule are the planned times when you have requested an on-site interpreter.

I,________________________, have approved the Interpreter Schedule above and have no objection to it. I am aware that I can modify this Schedule by contacting __________________. I have been provided a copy of this Schedule.

____________________________
Signature

____________________________
Date & Time

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Exhibit D

RELEASE OF ADA AND REHABILITATION ACT CLAIMS

For and in consideration of the acceptance of relief offered to me by Trinity Regional Medical Center and Trinity Health Systems pursuant to a Settlement Agreement between Jessie Fox, the United States of America, and Trinity Regional Medical Center and Trinity Health Systems: I, _____________, release and discharge Trinity Regional Medical Center and Trinity Health Systems, 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 complaints concerning Trinity Regional Medical Center’s failure to provide effective communication in violation of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, filed in the United States District Court for the Northern District of Iowa, with the exception of the attorney fees which will be negotiated between the Plaintiff and Defendants.

This Release will be considered null and void in the event that Trinity Health Systems fails to send a check or wire transfer in the amount specified in the Settlement Agreement within fifteen (15) days of receipt of this signed Release.

I acknowledge that I have had the opportunity to review the terms of this Release with my attorneys.

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 ____________, 2012.

 

Sworn and subscribed to before me this
_______ day of _____________, 2012.

Notary public

My commission expires:____________

 

1. The selection of interpreter agencies to be contacted and used by the Hospital under this Agreement shall be approved in advance by Private Plaintiff’s counsel.

2. Private plaintiffs shall set up a conservatorship on behalf of Addison Nguyen and obtain court approval for the conservator to sign the release (D-___) on behalf of Addison Nguyen.

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