UNITED STATES OF AMERICA,
THE STATE OF MINNESOTA,
ST. MARY'S DULUTH CLINIC HEALTH SYSTEM
Settling Case Nos. USAO # 2004V00563 AND MDHR # 45012
On May 13, 2004, the United States of America ("United States") commenced an investigation of a complaint lodged by Jack Bender ("Bender") under Title III of the Americans With Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12181-12189, the U.S. Department of Justice's implementing regulation, 28 C.F.R. Part 36, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Section 504"). Bender's federal complaint alleged, inter alia, that St. Mary's Duluth Clinic Health System ("SMDC") violated Title III of the ADA by discriminating on the basis of disability against persons who are deaf and/or hard of hearing and those related to or associated with them.
On October 15, 2004, Bender filed a charge of discrimination with the Minnesota Department of Human Rights ("MDHR") alleging that SMDC violated the Minnesota Human Rights Act ("MHRA") by failing to provide reasonable accommodation for his disability. The MDHR commenced an investigation of Bender‘s complaint.
II. SUMMARY OF CLAIMS
In his federal complaint and in his state charge of discrimination, Bender alleges that he had out-patient surgery scheduled for May 10, 2004, at 9:15 a.m., at St, Mary's Medical Center in Duluth, Minnesota. St. Mary's Medical Center is owned and operated by SMDC. Bender alleges that seven days prior to his surgery he informed SMDC that both he and his wife were deaf and that they would be in need of a sign language interpreter for the full day to communicate pre-operation and post-operation medical information. Bender states that on the day of his surgery, he and his wife arrived at the hospital at 7:00 a.m. but there was no interpreter present. Bender states that he asked the hospital staff where the interpreter was, and hospital staff checked and determined that interpreter service had been arranged for 9:30 a.m. Bender states that an interpreter arrived at approximately 8:15 a.m.
Bender states that his surgery, which had been scheduled for 9:15 a.m., was rescheduled to 11:00 a.m. The interpreter the hospital had scheduled needed to leave for another assignment at 11:30 a.m. Bender alleges the interpreter called an agency to request another interpreter, and that interpreter arrived at 11:00 a.m. Bender states that his surgery went forward at 11:00 a.m., but that the second interpreter had to leave around 2:15 p.m. for another appointment. Bender alleges that when he awoke from surgery, there was no interpreter available to give aftercare instructions from the nurse. Bender states that he was discharged at approximately 5:00 p.m. There was no interpreter to communicate discharge instructions. Bender states that although the hospital provided written discharge instructions, this was not effective communication because he did not fully understand what was going on at the time and his wife had difficulty understanding the nurse.
Bender alleges that SMDC violated the ADA, Section 504, and the MHRA by failing to provide effective communication on May 10, 2004, the day of his out-patient surgery. He states that he in advance notified SMDC of the fact that he and his wife were deaf and that an interpreter would need to be present from 7:00 a.m. until late afternoon following his surgery and recovery. Bender alleges that SMDC violated the ADA, Section 504, and the MHRA in failing to reasonably accommodate him by providing an interpreter throughout his surgical procedure, recovery, and release.
III. INVESTIGATION AND FINDINGS
The United States Department of Justice ("Department") and the U.S. Attorney for the District of Minnesota ("U.S. Attorney") are authorized under 28 C.F.R. Part 35, Subpart F, to investigate the allegations of the complaint in this matter to determine SMDC's compliance with Title III of the ADA. It has the authority to issue findings, and, where appropriate, negotiate and secure voluntary compliance agreements. Furthermore, the Department and U.S. Attorney are authorized under 42 U.S.C. § 12133 to bring civil actions enforcing Title III of the ADA should they fail to secure voluntary compliance pursuant to Subpart F.
Pursuant to Minn. Stat. § 363A.28, subd. 6, the MDHR conducted an investigation into the allegations in Bender's charge of discrimination. Under Minn. Stat. § 363A.28, subd. 8, the MHRA has the authority and obligation to endeavor to eliminate the unfair discriminatory practices through education, conciliation, and voluntary settlement agreements. Furthermore, the MDHR is authorized under Minn. Stat. §§363A. 28, subd. 6; 363A. 29; and 363A.33 to begin an administrative proceeding or a civil action to enforce the MHRA in if efforts to obtain voluntary compliance are unsuccessful.
SMDC is a private, non-profit corporation and the corporate parent of non-profit corporations that own and operate two acute care hospitals licensed by the State of Minnesota. SMDC operates facilities that are "public accommodations" within the meaning Title III of the ADA, 42U.S.C. § 12181(7)(F), and it's implementing regulation at 28 C.F.R. § 36. 104. SMDC owns and operates "places of public accommodation" within the meaning of the MHRA, Minn. Stat. §363A.03, subd. 34.
Following its investigation, the United States determined that SMDC failed to provide effective communication to the Benders on May 10, 2004. The MDHR completed its separate investigation and concluded that there was probable cause to believe that an unfair discriminatory practice was committed during the hospitalization of Bender. Specifically, the United States and the MDHR concluded that SMDC failed to provide a sign language interpreter to the Benders on May 10, 2004, in order to convey important discharge and post-surgery care instructions. In addition, the United States and the MDHR determined that SMOC lacked an effective protocol for obtaining interpreters for scheduled surgeries. Although SMDC disputes these findings and Bender's allegations, SMDC agrees to resolve this matter as set forth below.
IV. AGREEMENT REGARDING SETTLEMENT OF CLAIMS
The United States, the MDHR, Bender, and SMDC ("The Parties") agree that the federal complaint and the state charge of discrimination filed against SMDC should be resolved without further proceedings. The Parties recognize that SMDC has voluntarily taken substantial steps to address the accommodation of deaf and hard-of-hearing patients and companions. This Settlement Agreement shall not constitute nor be construed an admission by SMDC of any legal liability to the Parties.
1. "Auxiliary Aids and Services" means qualified sign language or oral interpreters, note takers, computer-assisted real time transcription services, written materials, telephone handset amplifiers, assistive listening devices, assistive listening closed captioning, TTYs / TDDs, large-print materials, acquisition or modification of equipment and other methods of delivering effective communication that may have come into use or will come into existence in the future.
2. "Hospital," "Hospitals," or "SMDC" means the following hospitals and facilities owned and operated by corporations controlled by SMDC: St. Mary's Medical Center and Miller Dwan Medical Center located in Duluth, Minnesota.
3. "Hospital Personnel" means all employees and independent contractors of SMDC including, without limitation, nurses, physicians, social workers, counselors, technicians, admitting personnel, billing staff, security staff, and therapists. Hospital Personnel also means all volunteers who have or are likely to have direct contact with deaf or hard-of-hearing "Patients" or "Companions" as defined in this Settlement Agreement.
4. "Qualified Sign Language Interpreter," "Oral Interpreter," or "Interpreter" means a person who is able to interpret competently, accurately, and impartially, both receptively and expressively, using any specialized terminology necessary for effective communication in a medical setting to a deaf or hard-of-hearing "Patient" or a "Companion" as defined in this Settlement Agreement. Furthermore, as agreed to between the parties, specifically the Minnesota Department of Human Rights and SMDC, to be considered a "qualified sign language interpreter," "oral interpreter," or "interpreter," a person must have the following minimum certificate qualifications, which are current and up to date:
(a) a valid Certificate of Interpretation (CI) and Certificate of Transliteration (CT) from the Registry of Interpreters for the Deaf (RID); or a Comprehensive Skills Certificate (CSC) from RID; or
(b) a valid Level 4 or 5 Certificate from the National Association for the Deaf (NAD).
For purposes of this Settlement Agreement, the Parties agree that future certifications that are the equivalent of these NAD or RID certifications will be considered valid minimum certification, so long as those certifications are kept current.
5. "Patient" shall be broadly construed to include any individual who is seeking or receiving health care services, including mental health services, from SMDC, whether as an inpatient or an out-patient.
6. "Companion" means a person who is deaf or hard of hearing and is one of the following:
(a) a person whom the Patient indicates should communicate with Hospital Personnel about the Patient, participate in any treatment decision, play a role in communicating the Patient's needs, condition, history, or symptoms to Hospital Personnel, or help the Patient act on the information, advice, or instructions provided by Hospital Personnel; or
(b) a person legally authorized to make health care decisions on behalf of the Patient, including but not limited to guardians, conservators, and persons holding powers of attorney; or with such other person with whom the Hospital Personnel would ordinarily and regularly communicate with concerning the Patient's medical condition.
7. "Effective Date of this Settlement Agreement" means September 1, 2008, except that Section VII of this Agreement shall be effective pursuant to its provisions.
8. "TTYs" or "TDDs" mean devices that are used with a telephone to communicate with persons who are deaf or hard of hearing by typing and reading communications. See 28 C.F .R. §36.104; 28 C.F.R. § 35.164.
V. EQUITABLE RELIEF
A. GENERAL OBLIGATIONS
1. Nondiscrimination Based on Disability.
SMDC will provide deaf and hard-of-hearing Patients and companions with the full and equal enjoyment of services, privileges, facilities, advantages, and accommodations of SMDC as required by this Settlement Agreement, the ADA, Section 504, and the MHRA.
2. Nondiscrimination by Association.
SMDC 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.
SMDC will not retaliate against or coerce in any way any person who is trying to exercise his or her rights under this Settlement Agreement, the ADA, Section 504, or the MHRA.
B. PROVISION OF AUXILIARY AIDS AND SERVICES
1. Deaf and Hard-of-Hearing Coordinators.
SMDC will designate a SMDC System Deaf and Hard-of Hearing Coordinator who will provide overall coordination for the Hospitals for the implementation of this Settlement Agreement and for ensuring effective communication with deaf and hard-of-hearing patients. In addition, SMDC will designate a Deaf and Hard-of Hearing Coordinator at each of the Hospitals who will work with the SMOC System Deaf and Hard-of-Hearing Coordinator to implement this Settlement Agreement and to provide effective communication with deaf and hard-of-hearing Patients at his or her respective Hospital.
In addition to the Deaf and Hard-of-Hearing Coordinators, each Hospital will identify a group of employees and/or identify employees from one or more Hospital departments or functions ("Deaf and Hard-of-Hearing Response Team Members") so that at least one of these employees is always on call and coverage is available twenty four (24) hours a day, seven (7) days a week, to answer questions and provide appropriate assistance regarding immediate access to and proper use of the auxiliary aids and services and qualified sign language and oral interpreters. The Deaf and Hard-of-Hearing Response Team will know how to contact and provide interpreters including when requests are needed after regular business hours. The Deaf and Hard-of-Hearing Response Team members will know where the auxiliary aids are stored and how to operate them. The Deaf and Hard-of-Hearing Coordinators will be responsible for their maintenance, repair, replacement, and distribution.
SMDC will circulate and post broadly within the Hospitals the telephone number(s), function, and office location(s) of the Deaf and Hard-of-Hearing Coordinators and the Deaf and Hard-of-Hearing Response Team Members, including TTY telephone number, so that the Deaf and Hard-of-Hearing Response Team Members can be contacted twenty-four (24) hours a day by deaf and hard-of-hearing Patients and Companions in order to obtain the assistance of the Deaf and Hard-of-Hearing Response Team Members. The Deaf and Hard-of Hearing Coordinators will coordinate with the Patient Relations Department each Hospital regarding the complaint resolution mechanism described in this Settlement Agreement.
2. Auxiliary Aids and Services.
SMDC will provide to deaf and hard-of-hearing Patients and Companions such auxiliary aids and services as are necessary for effective communication.
3. General Assessment Criteria.
The determination of which auxiliary aids and services are necessary, and the timing, duration, and frequency with which they will be provided shall be made by Hospital Personnel at the time the deaf or hard-of-hearing Patient or Companion contacts the Hospital and requests an interpreter or other auxiliary aid or service. Hospital Personnel will perform and document, in the deaf or hard-of-hearing Patient's medical chart, a communication assessment as part of each initial in-patient assessment.
The assessment made by Hospital Personnel will take into account all relevant facts and circumstances, including, without limitation, the following:
(a) the nature, length, and importance of the communication at issue;
(b) the individual's communication skills and knowledge;
(c) the Patient's health status or changes thereto;
(d) the Patient's and/or Companion's request for or statement of need for an interpreter; and
(e) the reasonably foreseeable health care activities of the patient (e.g., group therapy sessions, medical tests or procedures, rehabilitation services, meetings with heal the care professionals or social workers, or discussions concerning billing, insurance, self-care, prognoses, diagnoses, history, and discharge).
In the event that communication is not effective, Hospital Personnel will reassess which auxiliary aids and services are necessary, in consultation with the person with a disability, where possible.
4. Time for Assessment.
a. Scheduled Appointments.
Hospital personnel will determine which auxiliary aids and services are necessary and the timing, duration, and frequency with which they will be provided, at the time an appointment is scheduled for the deaf or hard-of-hearing patient. Hospital Personnel will perform and document, in the deaf or hard of-hearing Patient's medical chart, a communication assessment as part of each initial in-patient assessment.
b. Nonscheduled Incidents.
The determination of which auxiliary aids and services are necessary, and the timing, duration, and frequency with which they will be provided shall be made by Hospital personnel upon the arrival of the deaf or hard-of-hearing Patient or Companion at the Hospital. Hospital Personnel will perform and document, in the deaf or hard-of-hearing Patient's medical chart, a communication assessment as part of each initial in-patient assessment.
5. Continuation of Provision of Auxiliary Aids and Services.
After conducting the General Assessment described in this Settlement Agreement, SMDC will continue to provide auxiliary aids or services to the deaf or hard-of-hearing Patient or his or her Companion during the entire period of hospitalization and subsequent visits without requiring subsequent requests for the auxiliary aids or services by the Patient or Companion. Hospital Personnel will keep records that reflect the ongoing provision of auxiliary aids and services to deaf or hard-of-hearing Patients and Companions, such as notations in the Patients' medical charts.
6. Medical Concerns.
Nothing in this Settlement Agreement will require that an electronic device or equipment constituting an auxiliary aid to be used whom or where its use may interfere with medical or monitoring equipment or may otherwise constitute a threat to any Patient's medical condition.
7. Determination not to Provide Auxiliary Aids or Services.
If, after conducting the General Assessment described in this Settlement Agreement, SMDC determines that the circumstances do not warrant provision of an auxiliary aid or service, Hospital Personnel will also 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 he provided to the deaf or hard-of-hearing Patient (or Companion, if applicable); will be maintained with the Auxiliary Aid and Service Log described in this Settlement Agreement; and will be placed in the Patient's medical chart.
The obligations of SMDC to provide auxiliary aids and services, including qualified sign language interpreters, is not in any way waived when the Patient signs a waiver form waiving his or her right to an interpreter or other auxiliary aid or service.
9. Auxiliary Aid and Service Log.
SMDC will keep a log of auxiliary aids and services it provides. The Log shall be incorporated into the Compliance Reports as described in this Settlement Agreement and shall include the following information:
(a) the time and date each auxiliary aid or service is provided;
(b) the time and date a request is made for an auxiliary aid or service by a Patient or Companion; (if a request is made by a Patient or Companion);
(c) the time and date hospital staff requests an auxiliary aid or service;
(d) a code, which identifies the deaf or hard-of-hearing Patient (and Companion, if applicable);
(e) the time and date of the scheduled appointment (if a scheduled appointment was made); and
(f) the nature of the auxiliary aid or service provided, or a statement that the auxiliary aid or service was not provided and the reason why it was not provided.
As part of the Auxiliary Aid and Service Log, SMDC will also collect information regarding the response times for each request for an interpreter, as well as the qualifications (certification levels) of each interpreter who responds to a request to interpret. Such logs will be retained by SMDC for at least two (2) years.
10. Complaint Resolution.
SMDC will use its current Patient Grievance/Complaint Policy and Process for the resolution of concerns or grievances/complaints raised by deaf and hard-of-hearing Patients and Companions regarding effective communication. SMDC will notify deaf and hard-of-hearing persons of SMDC's conflict resolution mechanism, to whom complaints should be made, and the right to receive a written response to the complaint if requested.
SMDC will use the Deaf and Hard-of-Hearing Coordinators, the Deaf and Hard-of-Hearing Response Team Members, and other appropriate Hospital Personnel to respond to and address any concerns or grievances/complaints raised by deaf and hard-of hearing Patients and Companions regarding effective communication as soon as reasonably possible, with a goal of resolving all such matters raised while the Patient is in the Hospital so that effective communication is provided while the Patient is in the Hospital. SMDC will promptly provide the deaf or hard-of-hearing Patient and/or Companion a written response to the complaint, but no later than thirty (30) days after the resolution of the grievance/complaint. SMDC will maintain records of all grievances/complaints regarding effective communication with deaf or hard -of-hearing Patients and Companions, whether oral or written including copies of all complaints or notes reflecting oral complaints, made to SMDC and actions taken with respect thereto for at least two (2) years.
11. Prohibition of Surcharges.
All auxiliary aids and services required by this Settlement Agreement, the ADA, Section 504, and/or the MHRA, will be provided free of charge to the deaf or hard-of-hearing Patient and/or Companion.
C. PROVISION OF SIGN LANGUAGE INTERPRETERS AND ORAL INTERPRETERS.
1. Circumstances under which Interpreters will be provided.
As necessary for effective communication, SMDC will provide Qualified Sign Language Interpreters to deaf and/or hard of-hearing Patients and Companions whose primary means of communication is sign language. As necessary for effective communication, SMDC will also provide Qualified Oral Interpreters to deaf or hard-of-hearing Patients and Companions who rely primarily on lip reading. The following are examples of circumstances when it may be necessary to provided interpreters:
(a) determination of Patient's medical, psychiatric, psycho social, nutritional, and functional history or description of condition;
(b) provision of Patient's rights, informed consent, or permission for treatment, and current condition;
(c) determination and explanation of Patient's diagnosis or prognosis, and current condition;
(d) explanation of procedures, tests, treatment, treatment options, or surgery;
(e) explanation of medications prescribed (such as dosage, instructions for how and when the medication is to be taken and side effects or food or drug interactions);
(f)Explanation regarding follow-up treatments, therapies, test results, or recovery;
(g) blood donation or aphaeresis (removal of blood components);
(h) discharge planning and discharge instructions;
(i) provision of mental health evaluations, group and individual therapy, counseling, and other therapeutic activities, including but not limited to grief counseling and crisis intervention;
(j) explanation of complex billing or insurance issues that may arise;
(k) educational presentations, such as classes concerning birthing, nutrition, CPR, and weight management;
(l) religious services and spiritual counseling;
(m) explanation of living wills or powers of attorney (or their availability); and
(n) any other circumstances in which a qualified sign interpreter is necessary to ensure a patient's rights provided by law.
The foregoing list of circumstances is not exhaustive and does not imply that there are not other circumstances when it may be appropriate to provide interpreters for effective communication. This list also is not intended to imply that an interpreter must always be provided in these and/or other circumstances.
2. Provision of Sign Language Interpreters throughout a Hospitalization.
During a hospitalization, it will not be necessary for the Patient to renew the request for a sign language or other auxiliary aid or service. SMDC will provide notice to all deaf and hard-of hearing Patients and Companions of its policy to provide sign language interpreters and other auxiliary aids and services throughout a hospitalization without the need for continual separate requests for such aids and services. SMDC will make sign language interpreters available during a hospitalization in the circumstances set forth in this Settlement Agreement.
3. Method for Obtaining Sign Language Interpreters.
SMDC will hire one or more Qualified Sign Language Interpreters ("Staff Interpreters") to be available twenty-four(24) hours per day and/or enter into one or more written contracts with interpreter service providers to provide Qualified Sign Language Interpreters ("Contract Interpreters") at the request of SMDC.
SMDC may, but has no obligation to, satisfy its sign language interpreter obligations under this Settlement Agreement by hiring qualified Staff Interpreters. Staff Interpreters must also meet the definition of "Qualified Sign Language Interpreters," "Oral Interpreters," and "Interpreters" as defined in this 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 SMDC is otherwise obligated to provide under this Settlement Agreement. SMDC may assign other duties to Staff Interpreters, but the Staff Interpreters' performance of those other duties will not excuse SMDC's requirements under this Settlement Agreement.
SMDC must maintain a policy and practice for providing interpreters on a twenty-four (24) hours/seven (7) days a week basis, which must include designating one or more persons in each of the Hospitals who are responsible on a twenty-four (24) hour per day basis for making all arrangements necessary for providing qualified sign language interpreters when they are requested by deaf or hard-of-hearing Patients or Companions. The Deaf and Hard of-Hearing Coordinators and Response Team Members described in this Settlement Agreement may serve in this function.
4. Qualification Records.
SMDC will be responsible for ensuring that only "Qualified Sign Language Interpreters," "Oral Interpreters," and "Interpreters" as defined in this Settlement Agreement are used in the Hospitals on or after September 1, 2007. SMDC will make proof of the current qualifications of the Qualified Sign Language Interpreters, including Staff Interpreters and Contract Interpreters who provide services or who are scheduled to provide services to a particular deaf or hard-of-hearing Patient available for examination by that deaf or hard-of-hearing Patient and/or Companion within two (2) business days following a request by such Patient or Companion.
5. Provision of Interpreters in a Timely Manner.
a. Non-scheduled Interpreter Requests.
SMDC will meet the following time standards for providing Qualified Sign Language Interpreters to deaf and/or hard of-hearing Patients and/or Companions in non-scheduled incidents:
(1) SMDC will maintain a response time of one (1) hour at least eighty percent (80%) of non-scheduled interpreter requests and of two (2) hours in one hundred percent (100%) of nonscheduled interpreter requests.
(2) The response time will be measured from the time beginning ten (10) minutes after an interpreter is requested by a Patient or Companion who is deaf or hard of hearing and ending when the interpreter begins interpreting for the Patient or Companion.
(3) The foregoing response times are subject to force majeure events. Force majeure events are events outside the reasonable control of SMDC, the Contract Interpreter, or the interpreter called to respond, including but not limited to weather conditions and other "Acts of God," unanticipated illness or injury of the interpreter, and unanticipated transportation problems.
(4) Hospital Personnel will make requests for Staff or Contract Interpreters within ten (10) minutes of the time a request is made for an interpreter by a Patient or Companion.
(5) "Non-scheduled Interpreter Requests" means a request for an interpreter which is made during the appearance at the Hospital by a deaf or hard-of-hearing Patient or Companion for examinations or treatment that was not scheduled prior to the time such Patient or Companion came to the Hospital or when the Hospital receives notice that a deaf or hard-of-hearing Patient or Companion is on his or her way to the emergency room of the hospital.
(6) If an interpreter is called for the nonscheduled event and then fails to show, SMDC will take whatever additional actions are necessary to make a Qualified Sign Language Interpreter available for the Patient and/or Companion.
b. Scheduled Incidents.
For scheduled events, SMDC will make a Qualified Sign Language Interpreter available at the time of the scheduled appointment. If an interpreter fails to show for the scheduled appointment, SMDC will take whatever additional actions are necessary to make a Qualified Sign Language Interpreter available to the Patient and/or Companion.
c. Modification of Performance Standards.
In the event that the response time standards described in this Settlement Agreement cannot be maintained despite SMDC's good-faith efforts, SMDC is entitled to request the consent of the United States and the State of Minnesota to such modification of the response time standards as may be reasonable under the circumstances. The United States and the State of Minnesota will consider any such request reasonably and in good faith, and any such modification to which SMDC, the United States, and the State of Minnesota agree will be memorialized as an amendment to this Settlement Agreement.
d. Compliance with applicable Laws.
The consent of the United States and the State of Minnesota in this Settlement Agreement does not affect SMDC's independent responsibilities under any applicable federal, state, or local laws or regulations.
e. Notice to Deaf and Hard-of-Hearing Patients and Companions.
As soon as Hospital Personnel have determined that a Qualified Sign Language Interpreter is necessary for effective communication with a deaf or hard-of-hearing Patient or Companion, SMDC 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 Sign Language Interpreter on his or her behalf. SMDC will provide additional updates to the Patient or Companion as necessary until a Qualified Sign Language Interpreter is secured. Notification of efforts to secure a Qualified Sign Language Interpreter does not lessen SMDC's obligation to provide Qualified Sign Language Interpreters in a timely manner as required by this Settlement Agreement.
f. Other means of Communication.
SMDC 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 SMDC's obligation to provide Qualified Sign Language Interpreters in a timely manner as required by this Settlement Agreement.
g. Restricted Use of Certain Persons to Facilitate Communication.
Due to confidentiality, potential emotional involvement, and other factors that may adversely affect the ability to facilitate communication, SMDC 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.
D. NOTICE TO COMMUNITY
1. Policy Statement.
Within sixty (60) days of the effective date of this Settlement Agreement, SMDC will post and maintain at all hospital admitting stations, emergency departments, and wherever a Patient's Bill of Rights is required by law to be posted signs of conspicuous size and print, which shall state to the following effect:
Free Sign languages oral interpreters, TTY's and other services are available to deaf or hard-of-hearing persons. Ask us for help or contact [insert hospital contact information here].
These signs will include the international symbols for "interpreters" and "TTYs."
2. Patient and Visitor Information Brochures.
SMDC will include in all future printings of its Patient and Visitor Information Brochures and all similar publications a statement to the following effect:
If you are deaf or hard of hearing, please let us know. We provide many free services including: Sign language interpreters; oral interpreters; TTYs; Telephone amplifiers; Note takers; Written materials; Other services. We also provide these free services to your family or to other people who may be deaf or hard of hearing, while they are with you in the hospital. Ask us for help or contact [insert hospital contact information here].
These brochures will include the international symbols for "interpreters" and TTYs."
SMDC will include on any website it maintains the following statement: "free sign language and oral interpreters, TTYs, and other services are available to deaf and hard-of-hearing persons. Ask us for help or contact [insert hospital contact information here]."
4. Format of Notices.
Upon request, SMDC will provide an interpreter to present the content of the following written materials in American Sign Language (ASL):
(a) the patients' bill of rights;
(b) health care directives pamphlet;
(c) notice of privacy practices.
SMDC will notify deaf and hard-of-hearing Patients of the availability of this service at the time these written materials are given to the Patient.
E. NOTICE TO HOSPITAL PERSONNEL AND PHYSICIANS.
SMDC will publish, in an appropriate form, a written statement regarding SMDC's policy for effective communication with persons, who are deaf or hard of hearing. The policy statement should include, but is not limited to, language to the following effect:
If you recognize or have any reason to believe that a patient, relative, or a close friend or companion of a patient is deaf or hard of hearing, you must advise the person that auxiliary aids and services such as sign language and oral interpreters, TTYs, note takers, written materials, telephone handset amplifiers, assistive listening devices and systems, telephones compatible with hearing aids, closed caption decoders, and open and closed captioning of most hospital programs will be provided free of charge. If you are the responsible health care provider, you must take reasonable and necessary steps to ensure that such aids and services are provided when appropriate. All other hospital personnel should direct that person to [insert hospital contact information here]. This offer and advice must likewise be made in response to any overt request for auxiliary aids or services.
SMOC will distribute, by mail, email, or other means, this statement within ninety (90) days of the Effective Date of this Settlement Agreement to all Hospital Personnel and medical and allied health staff members. SMDC will also distribute this statement, by mail, email, or other means, to all new Hospital Personnel and medical and allied health staff members upon their employment or affiliation with SMDC.
1. Training of Deaf and Hard-of-Hearing Coordinators.
SMDC will provide special mandatory training for the Deaf and Hard-of-Hearing Coordinators and the Deaf and Hard-of-Hearing Response Team Members within sixty (60) days of them being designated as provided for in this Settlement Agreement. Such training will be sufficient in duration and content to train the Deaf and Hard-of-Hearing Coordinators and Deaf and Hard-of-Hearing Response Team Members in: (a) the health care needs of the deaf and hard of hearing; (b) the various degrees of hearing impairment, language, and cultural diversity in the deaf community; (c) identification of communication needs of persons who are deaf; (d) the unique needs and problems encountered by late-deafened individuals; (e) the psychological implications of deafness and its relationship to interaction with hearing health care professionals; (f) recommended and required charting procedures governing requests for auxiliary aids and services; (g) types of auxiliary aids and services available in the community and Hospitals; (h) the proper use and role of qualified sign language interpreters; (I) making and receiving calls through TTY's and the Minnesota Relay Service; (j) the Hospital's complaint resolution described in Section V.B.10 of this Settlement Agreement; and (k) any other applicable requirements of this Settlement Agreement.
2. Training of Other Key Personnel.
No later than ninety (90) days after the effective date of this Settlement Agreement, SMDC will provide training to Hospital employees who fall into the following categories: social workers, patient relations staff, care coordinators, nurse managers, charge nurses, billing office customer service representatives, telephone operators, patient registration staff and other employees as determined by SMDC. This training may be delivered by one or more in-service training methods. The training will address the special needs of deaf and hard-of-hearing Patients and Companions and will include the following objectives: (a) the requirements of Federal and Minnesota law to ensure effective communication with deaf and hard-of-hearing patients; (b) the terms of this Settlement Agreement; (c) the importance of the use of qualified interpreters and other auxiliary aids and services in providing care to deaf and hard-of-hearing patients; (d) types of communication modes and types of auxiliary aids and services; (e) the identify and role of the Deaf and Hard-of-Hearing Coordinators and Deaf and Hard-of-Hearing Response Team Members; (f) SMDC's policy on and tips on assessing t he communication needs of deaf and hard-of-hearing patients; (g) the use of the TTY Machines and the Minnesota Relay Service; and (h) SMDC's procedures implemented to comply with this Settlement Agreement and other procedures specific to the employee's employment category. SMDC will provide the training specified above to new Hospital employees who fall into the categories identified in this Section within sixty (60) days after the commencement of their services for SMDC. A screening of a video of the original training will suffice to meet this obligation.
3. Training of Substantially all Employees in the Identified Categories.
SMDC will use reasonable efforts to provide the Training identified above in Sections 1 and 2 to substantially all of those employees within the identified time frame. The Parties recognize that certain employees may be on leave of absence or in similar categories which may prevent such employees from being trained within the identified time frame. SMDC's failure in such circumstances to provide training within the identified time frame shall not constitute a violation of this Settlement Agreement.
4. Training of Emergency Room Personnel.
SMDC also will provide in-service training to the non-physician employees in the Hospital emergency room on: (1) promptly assessing the communication needs of deaf and hard-of-hearing Patients; (2) securing the services of Qualified Interpreters as quickly as possible; and (3) the use of other aids to augment effective communication with deaf and hard-of-hearing Patients.
5. Training Attendance Sheets.
SMDC will maintain documentation of all training conducted pursuant to Section V.F.1 of this Settlement Agreement, which will include the names and respective job titles of the participants, as well as the date and location, if applicable, of the training session.
6. Training of Medical and Allied Health Staff.
SMDC will conduct one or more training sessions on the communication needs of persons who are deaf or hard of hearing and will invite all medical and allied health staff to attend. SMDC will provide training videotapes that contain substantially similar information to any medical staff physician upon request.
7. Written Materials.
Within one hundred twenty (120) days of the Effective Date of this Settlement Agreement, SMDC will distribute, by mail, email or other means, a set of materials to all medical and allied health staff. These materials will contain at least the following:
(1) SMDC's policy statement and any relevant forms; and (2) a request that physicians' staff members notify SMDC of those deaf and Hard of hearing Patients and Companion as soon as they schedule admission, tests, surgeries, or other healthcare services at a Hospital.
VI. REPORTING, MONITORING, AND VIOLATIONS
1. Compliance Reports.
On the dates detailed below, SMDC will provide a written report ("Compliance Report") to the U.S. Attorney for the District of Minnesota and the Minnesota Department of Human Rights 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:
a. the number of requests for qualified sign language interpreters received by SMDC at the Hospitals by deaf and hard-of hearing Patients and Companions;
b. the number of times a qualified sign language interpreter was provided by SMDC;
c. the number of times SMDC denied a request for a qualified sign language interpreter and the reasons for the denial;
d. the number of times SMDC requested a qualified sign language interpreter but the interpreter failed to show and, for each such situation, the reasons for the failure;
e. in the case of a "non-scheduled interpreter request" as defined in this Settlement Agreement, the date and the time a qualified sign language interpreter is requested by a deaf or hard-of-hearing Patient or Companion and the date and time the interpreter actually began interpreting for such Patient or Companion;
f. for "scheduled interpreter request" as discussed in this Settlement Agreement, SMDC shall report the time the interpreter arrived;
g. an explanation of the reasons for the delay in obtaining a qualified sign language interpreter in those cases where the response time, as defined by this Settlement Agreement, is more than one (1) hour for any request;
h. the number of complaints received by SMDC at the Hospitals by deaf and hard-of-hearing Patients and Companions regarding auxiliary aids and services and/or effective communication and a notation as to whether or not SMDC considers the matter(s) resolved; and
i. the sign-in or training attendance sheets for the training session mandated by section V.F. 5 of this Settlement Agreement.
SMDC will submit the Compliance Report to the U. S. Attorney and the Minnesota Department of Human Rights on or before the following dates: Six (6) months after the Effective Date (due within thirty (30) days of the end of that period) and at six-month intervals thereafter (due thirty (30) days of the end of each of those periods).
SMDC 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 for the District of Minnesota and the Minnesota Department of Human Rights. SMDC shall keep the records throughout the two-year Settlement Agreement period and shall hold on to those records for an additional year following the expiration of the Settlement Agreement.
The reporting requirements of this Settlement Agreement do not require SMDC to disclose or make available protected health information as defined in 42 C.F.R. 164.501.
The Minnesota Department of Human Rights and the U.S. Department of Justice are bound by various state and/or federal laws concerning public access to information.
During the Term of this Settlement Agreement, SMDC will notify the U.S. Attorney for the District of Minnesota and The Minnesota Department of Human Rights if any person commences a lawsuit or administrative charge or files a complaint or grievance alleging that SMDC 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 within thirty (30) days of the date SMDC 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 non-privileged documentation possessed by SMDC relevant to the allegation. SMDC will reference this provision of the Settlement Agreement in the notifications.
B. DISPUTE RESOLUTION PROCESS
In the event that the United States, the State of Minnesota, and/or SMDC have a dispute about any of the terms of this Settlement Agreement, the Parties agree to attempt to negotiate a settlement of such dispute in good faith.
In the event that the United States or the State of Minnesota believes that SMDC has violated any provision of this Settlement Agreement, the United States or the State of Minnesota will notify SMDC and enter into informal discussions to address the alleged violation. The Parties agree to attempt to address alleged violations in good faith.
If the Parties cannot in good faith address the alleged violation during the informal process, the United States or the State of Minnesota may serve on SMDC a Notice of Violation, which shall detail how SMDC has violated the Settlement Agreement, the provisions of the Settlement Agreement allegedly violated, and a suggested course of action for remedying the alleged violation. SMDC shall have sixty (60) days after the date it receives the Notice of Violation to cure the violation, but any violation that prevents or restricts a deaf or hard-of-hearing Patient from receiving urgent health care services must be cured without delay.
If SMDC cures the violation as provided above, the matter will no longer be considered a violation of this Settlement Agreement and no additional relief will be necessary. Within thirty(30) days after the date SMDC receives a Notice of Violation, SMDC shall respond in writing to the United States or the State of Minnesota indicating whether it is attempting to cure the alleged violation, whether it disagrees that a violation has occurred, or otherwise responding to the Notice of Violation. If SMDC, in good faith, disagrees that a violation has occurred, the parties will meet to resolve the disagreement in good faith and the cure period shall be extended by the time period that the Parties are meeting to resolve the disagreement over the alleged violation, but the full cure period, including extension, shall not exceed ninety (90) days.
If after sixty (60) days following the date SMDC receives the Notice of Violation, the violation has not been satisfactorily cured by SMDC and the cure period has not been extended, the United States or the State of Minnesota may commence an action to enforce the Settlement Agreement in U.S. District Court for the District of Minnesota.
This process is in addition to the process provided in the MHRA, Minn. Stat. Chapter 363A, and nothing herein prevents the state of Minnesota or the MDHR from using the processes in the MHRA for alleged violations of the MHRA or this Agreement.
VII. COMPENSATORY DAMAGES AND RELEASES
A. COMPENSATORY DAMAGES
In settlement of claims by Bender for compensatory damages alleged, as agreed to between the Parties, specifically the Minnesota Department of Human Rights and SMDC, SMDC has agreed to pay Bender $12,500 and to pay the Deaf and Hard of Hearing Services Regional Office in Duluth $12,500. A Form 1099 shall be issued to Bender in the amount of $12,500, and he shall be solely responsible for the payment of any and all taxes due in connection with such payment. The payment by SMDC to the Deaf and Hard of Hearing Services Regional Office in Duluth must be used exclusively to fund training and other assistance to health care providers in the northeastern Minnesota region in meeting their legal obligations of deaf and hard-of-hearing patients and companions. SMDC shall deliver the payments required by this paragraph to the MDHR's attorney within thirty days after receipt by SMDC of this Settlement
B. RELEASE BY BENDER
To receive the monetary relief provided for under this Settlement Agreement, Bender will complete and execute the Release Form attached as Exhibit A to this Settlement Agreement and mail and deliver the original Release Form to counsel for SMDC, with copies thereof to counsel for the United States and the State of Minnesota.
C. RELEASE BY THE UNITED STATES AND THE MDHR
The United States and the MDHR hereby waive, release, discharge, and covenant not to sue SMDC, its parent, affiliates, and subsidiaries, and all of its and their current and former officers, agents, employees, attorneys, insurers, successors, and assigns with respect to all claims, suits, and damages, including any claim for costs or attorney fees, arising out of or in connection with: (1) the charge of discrimination filed by Bender with the MOHR (charge # 45012); (2) the complaint filed by Bender with the Department (file # 2004V00563); (3) the facts alleged or which could have been alleged in that charge or in that complaint; and (4) the occurrences giving rise to that charge and that complaint. Nothing contained herein, however, shall be construed as limiting the right of the United States or the MOHR to take further action if SMDC fails to comply with this Settlement Agreement.
VIII. MISCELLANEOUS PROVISIONS
A. PUBLIC AGREEMENT
This Settlement Agreement, along with its exhibits, constitutes a public agreement and a copy of the Settlement Agreement may be made available to any person.
B. CHANGING CIRCUMSTANCES
During the Term of this Settlement Agreement, there may be a change in circumstances such as, for example and without limitation, an increased or decreased availability of qualified sign language interpreters or developments in technology to assist or improve communications with persons who are deaf or hard of hearing. If any Party to this Settlement Agreement determines that such changes create opportunities for communicating with deaf or hard-of-hearing Patients and Companions more efficiently or effectively than is required under this Settlement Agreement, or create difficulties not presently contemplated in the provision of auxiliary aids and services, the Party may propose changes to this Agreement by presenting written notice to the other Parties. The Parties will negotiate in good faith.
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.
Failure by the United States or the State of Minnesota to seek enforcement of this Settlement 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 instance or provisions.
In the event that a court determines that any provision of this Settlement Agreement is unenforceable, such provision will be severed from this Settlement Agreement and all other provisions will remain valid and enforceable, provided however that if the severance of any such provision materially alters the rights or obligations of the Parties hereunder, they will, through reasonable, good faith negotiations, agree upon such other amendments to this Settlement Agreement as may be necessary to restore the Parties as closely as possible to the relative rights and obligations initially intended by them hereunder.
Any notice required under this Settlement Agreement will be provided to the following persons at the following addresses:
For the United States:
Chief, Civil Division
U. S. Attorney's Office
600 U.S. Courthouse
300 South Fourth Street
For the State of Minnesota:
Minnesota Department of Human Rights
Sibley Square by Mears Park
190 East Fifth Street, Suite 700
SMDC Health System
502 East Second Street
G. DISCLAIMER OF LIABILITY
Nothing in this Settlement Agreement shall constitute or be construed as an admission by SMDC of any liability or fault, that it engaged in any wrongful or illegal activity, that any of the allegations of the United States, MDHR, or Bender are true, or that any person suffered any injury as a result of the events as alleged by the United States, MDHR, or Bender.
H. TERM OF AGREEMENT
This Settlement Agreement shall remain in effect for two (2) years from its effective date, after which time its provisions shall be terminated.
I. EFFECTIVE DATE
The effective date of this Settlement Agreement shall be September 1, 2008, except that Section VII of this Agreement shall be effective pursuant to its provisions.
|Dated: July 3, 2008||
FRANK J. MAGILL JR.
BY: GREGORY G. BROOKER
ATTORNEYS FOR United States of America
|Dated: June 23, 2008||
MINNESOTA DEPARTMENT OF HUMAN RIGHTS
BY: VELMA KORBEL COMMISSIONER
|Dated: July 3, 2008||
SMDC HEALTH SYSTEM
By: TERESA O'TOOLE
For and in consideration of the payment of $12,500 to himself and $12,500 to the Deaf and Hard of Hearing Services Regional Office in Duluth, Jack Bender, for himself and his heirs, executors, administrators, insurers, attorneys, successors, and assign as (hereinafter collectively referred to as "Releasing Party") hereby forever waives, releases, and settles all claims, demands actions, suits, cases of action, and claims for all damages, Statutory relief, rights, and remedies whatsoever which Releasing Party has or might otherwise have, whether at law or in equity, against SMDC and any of its subsidiaries or affiliates, or any employee, officer, agent, representative, successor, insurer, attorney, or assign of any of them in hereinafter collectively referred to as "Parties Released" ), arising in whole or in part out of Releasing Party's treatment by any of the Parties Released prior to the date of execution of this release, whether such claims are based on contract, tort, statutes, or any other theory. Releasing Party specifically agrees to release the Parties Released from all claims arising under or based upon the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. and the Minnesota Human Rights Act, Minn. Stat. Ch. 363A, specifically including but not limited to all claims in any way related to the allegations set forth in (or that could have been set forth in) his complaint to the U.S. Attorney and his charge of discrimination to the Minnesota Department of Human Rights.
The Releasing Party further declares and represents that no promise, inducement, or agreement not herein expressed has been made to the undersigned.
Printed Name: Jack Bender
Subscribe and sworn to
1. Regarding American Consortium of Certified Interpreters ("ACCI") certifications, ACCI certifications at Levels IV and V are deemed to be the equivalent of the above-referenced NAD and RID certifications, provided that the ACCI certifications are current. After the expiration date posted on the ACCI certificate, the ACCI Certificate is deemed to be no longer current and would not be considered an equivalent to the NAD and RID certifications in this Settlement Agreement.
Citations to statutes and regulations for certain provisions of this Settlement Agreement are given to indicate the legal source of such provisions. They are not intended to and will not be used to limit, expand, modify, or interpret such provisions.
October 7, 2009