Settlement Agreement between the United States of America and Fairfax Nursing Center, Inc.

SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA AND
FAIRFAX NURSING CENTER, INC.

U.S. DEPARTMENT OF JUSTICE DJ #202-79-285

BACKGROUND

  1. The parties (“Parties”) to this Settlement Agreement (“Agreement”) are the United States of America (“United States”) and Fairfax Nursing Center, Inc. (“FNC”), a skilled nursing facility located in Fairfax County, Virginia.
  2. This matter was initiated by a complaint filed with the United States against FNC, alleging violations of title III of the Americans with Disabilities Act of 1990, as amended (the “ADA”), 42 U.S.C. §§ 12181-12189, and its implementing regulation, 28 C.F.R. Part 36.  Specifically, Complainant B.D. and Complainant D.D. (the “Complainants”), who are both deaf, alleged that FNC personnel failed to provide sign language interpretive services when necessary to ensure effective communication with the Complainants.
  3. V.P., an 83 year-old, suffered a fractured leg and stayed at FNC from May 20 through July 14, 2014, for physical rehabilitation of her fractured leg.  V.P. also suffered from multiple complex medical issues, including dementia, breast cancer, and chronic kidney disease. V.P.’s admission for her stay was arranged in conjunction with V.P.’s sister, who is not hearing impaired and who was identified as her financial conservator and is listed in FNC’s admission records as V.P.’s “responsible party”.  During V.P.’s stay at FNC, B.D. and D.D. visited with her on multiple occasions.  B.D. is V.P.’s daughter.  D.D. is V.P.’s granddaughter.  Both B.D. and D.D. use American Sign Language (“ASL”) as their primary means of communication.
  4. B.D. alleges that she moved her mother to FNC, which is the closest skilled nursing facility to her residence, from Winchester, Virginia so that she could better support her during this difficult time in V.P.’s life.  B.D. further alleges that she was kept in the dark about V.P.’s medical condition and progress because FNC failed to furnish qualified ASL interpreters in response to her express requests for such interpreters.  Complainants allege that on multiple occasions, they both requested an ASL interpreter so they could communicate with the FNC’s staff about V.P.’s medical condition.
  5. INVESTIGATION AND FINDINGS

  6. The United States Attorney for the Eastern District of Virginia (“U.S. Attorney’s Office”) is authorized under 42 U.S.C.§ 12188 and 28 C.F.R. Part 36, Subpart E, to investigate the allegations of the complaint in this matter to determine FNC’s compliance with title III of the ADA. The United States Attorney’s Office has the authority to, where appropriate, negotiate and secure voluntary compliance agreements, and to bring civil actions enforcing title III of the ADA should it fail to secure voluntary compliance.
  7. Complainants are deaf and as such are individuals with a “disability” within the meaning of the ADA.  42 U.S. C. § 12102; 28 C.F.R. § 36.104.
  8. FNC is a skilled nursing facility licensed by the Commonwealth of Virginia.  FNC is a “public accommodation” within the meaning of title III of the ADA, 42 U.S.C. § 12181(7)(F), (K); 28 C.F.R. § 36.104.
  9. The ADA prohibits discrimination on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a public accommodation.  42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a).
  10. On the basis of its investigation, the U.S. Attorney’s Office has determined that:
    1.  FNC had an obligation to provide auxiliary aids and services to ensure effective communication with B.D. and D.D. because as V.P.’s daughter and granddaughter, they are V.P.’s legally cognizable “companions” pursuant to the ADA Regulations.  28 C.F.R. § 36.303. 
    2. Further, B.D. is listed in FNC’s admission records as V.P.’s “Emergency Contact # 1” and “Next of Kin,” and, as such, was entitled to the same level of communication as an individual who is hearing and has these designations. 
    3. The U.S. Attorney’s Office has also determined that during V.P.’s stay at FNC, B.D. and D.D. requested ASL interpreters on multiple occasions and that FNC failed to provide such interpreters or to effectively communicate with the complainants, including during the following:
      1. V.P.’s first few days at FNC when B.D. wanted to discuss care issues related to her mother, including how FNC was handling V.P.’s toileting issues; 
      2. A June 3, 2014 interdisciplinary care planning meeting that FNC was legally required to hold and which both B.D. and D.D. attended in addition to V.P.’s sister;
      3. Several one-on-one discussions that B.D. had with FNC’s clinical staff during which the staff discussed, among other things, the healing progress of V.P.’s fractured leg, her dementia symptoms, and other medical issues;
      4. Discussion of treatment options with B.D., including whether physical and occupational therapy were working; and 
      5. Discussions with B.D. related to discharge planning, including V.P.’s inability to care for herself and placement after discharge, which was very important to B.D. because she wanted her mother to be geographically close to her home.
    4. The U.S. Attorney’s Office has also determined that FNC enlisted an Activities Department employee, who did not have the requisite skills to be an ASL interpreter, to facilitate communication during a legally required interdisciplinary care planning meeting when family members, including B.D. and D.D., were entitled to meaningful participation in V.P.’s care planning.  Prior to enlisting the Activities Department employee to facilitate communication, FNC failed to have the employee evaluated to determine whether she had the requisite ASL skills to perform as an interpreter in a medical setting. 

    5. Further, despite the fact that FNC’s clinical staff told B.D. and D.D. that it would honor their request to reschedule V.P.’s June 3, 2014 care planning meeting so that a qualified ASL interpreter could be present, FNC failed to reschedule the meeting and failed to provide a qualified sign language interpreter. 
    6. The U.S. Attorney’s Office has also determined that the FNC clinical staff assigned to care for V.P. failed to communicate with B.D. about important incidents, including providing the legally required notice to B.D. that her Mother had an accident when she fell on May 20, 2014.  An FNC registered nurse wrote in V.P.’s clinical records that she did not call B.D. about V.P.’s fall because she was “hearing impaired.” 
    7. Additionally, FNC failed to communicate with B.D. when it sent V.P. to Fairfax INOVA hospital on June 20, 2014. 
  11. FNC fully cooperated with the United States Attorney’s Office’s investigation in this matter.  This Agreement is neither an admission of liability by FNC nor a concession by the United States that its claims are not well founded.  By entering into this Agreement, FNC does not admit the allegations in paragraphs 9(a)-(g), above, or to any violation of law, liability, fault, misconduct or wrongdoing in connection with those allegations.  The Parties have determined that the complaint filed with the United States can be resolved without litigation and have agreed to the terms of this Agreement.
  12. DEFINITIONS

  13. The term “auxiliary aids and services” includes 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; 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).
  14. The term “FNC Personnel” means all employees, both full and part-time, and independent contractors with contracts to work for or with FNC, including, without limitation, nurses, physicians, social workers, activities department employees, administrative staff, technicians, admitting personnel, billing staff, security staff, therapists, and volunteers, who have or are likely to have direct contact with Patients or Companions as defined herein.
  15. The term “qualified interpreter” means an interpreter who, via a video remote interpreting (VRI) service or an on-site appearance, is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary.  Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators.  28 C.F.R. § 36.104.
  16. The term “Patient” shall be broadly construed to include any individual who is seeking or receiving the goods, services, facilities, privileges, advantages, or accommodations of FNC.
  17. The term “Companion” means a person who is deaf or hard of hearing and is a family member, friend, or associate of an individual seeking access to, or participating in, the goods, services, facilities, privileges, advantages, or accommodations of a public accommodation, who, along with such individual, is an appropriate person with whom the public accommodation should communicate.  28 C.F.R. § 36.303(c)(1)(i).
  18. “Patient medical files, records or charts” mean the medical files and related records for an individual patient, including both the paper and electronic records. 
  19. EQUITABLE RELIEF

    A. Prohibition of Discrimination

  20. Nondiscrimination.  FNC shall provide appropriate auxiliary aids and services, including qualified interpreters, where such aids and services are necessary to ensure effective communication with Patients and Companions who are deaf or hard of hearing.  Pursuant to 42 U.S.C. § 12182(a), FNC shall also provide Patients and Companions, who are deaf or hard of hearing, with the full and equal enjoyment of the services, privileges, facilities, advantages, and accommodations of the skilled nursing facility as required by this Agreement and the ADA.
  21. Discrimination by Association.  FNC shall not deny equal services, accommodations, or other opportunities to any individual because of the known relationship of that person with someone who is deaf or hard of hearing.  See 42 U.S.C. § 12182(b)(1)(E).
  22. Retaliation and Coercion.  FNC 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.
  23. B. Effective Communication

  24. Appropriate Auxiliary Aids and Services.  Pursuant to 42 U.S.C. § 12182(b)(2)(A)(iii), FNC will provide to Patients and Companions, who are deaf or hard of hearing, any appropriate auxiliary aids and services that are necessary for effective communication after making the assessment described in paragraphs 21 and 22 of this Agreement. Appropriate auxiliary aids and services will be provided as soon as practicable (without compromising patient care), except that the provision of on-site interpreters must be within the time frame described in paragraph 30 of this Agreement.  FNC will advise Patients and Companions who require auxiliary aids or services, in writing, that these are available throughout the Patient’s stay.
  25. General Assessment Criteria.  The determination of appropriate auxiliary aids or services, and the timing, duration, and frequency with which they will be provided, will be made by FNC in consultation with the person with a disability.  The assessment made by FNC Personnel will take into account all relevant facts and circumstances, including, for example, the individual’s communication skills and knowledge, and the nature and complexity of the communication at issue.  A Model Communication Assessment Form is attached to this Agreement as Exhibit A, and FNC will develop a form similar to Exhibit A within thirty (30) days of the Effective Date of this Agreement to be used at FNC.  FNC shall provide a copy of the Communication Assessment Form that it develops to the United States Attorney’s Office for approval prior to FNC’s implementation of the Form.  FNC shall ensure that a completed Form is obtained from each individual patient or companion who agrees to complete the Form.  FNC shall provide assistance in completing the Form at the Patient’s or Companion’s request.  After being completed, the Form(s) shall be maintained in the patient’s medical chart, whether kept in paper or electronic form.  If a patient identifies a companion who is not presently at FNC but is expected at FNC during the patient’s stay, FNC Personnel shall provide the patient with the contact information of FNC Personnel who can assist the companion in completing a Deaf or Hard of Hearing Communication Request Form in advance of arriving at FNC and with the contact information of FNC Personnel who can assist the Companion in completing the Form at FNC (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, FNC shall promptly provide him/her with the Form, if it has not done so already.

  26. Time for Assessment.  The determination of which appropriate auxiliary aids and services are necessary, and the timing, duration, and frequency with which they will be provided, must be made at the time FNC learns that a Patient or Companion who is deaf or hard of hearing will be using its services, subject to the Patient’s or Companion’s availability to participate, or on the arrival of the Patient or Companion who is deaf or hard of hearing at FNC, whichever is earlier.  FNC Personnel will perform an assessment (see paragraph 21) as part of each initial inpatient assessment and document the results in the Patient’s medical chart.  In the event that communication is not effective, FNC Personnel will reassess which appropriate auxiliary aids and services are necessary, in consultation with the person with a disability, where possible, and provide such aid or service based on the reassessment.
  27. ADA Administrators.  FNC will designate at least one employee as an ADA Administrator or ADA Co-Administrators, and at least one such employee will always be on duty and available twenty-four (24) hours a day, seven (7) days a week, to answer questions and provide appropriate assistance regarding immediate access to, and proper use of, the appropriate auxiliary aids and services, including qualified interpreters.  The ADA Administrator or ADA Co-Administrators will know where the appropriate auxiliary aids are stored and how to operate them and will be responsible for their maintenance, repair, replacement, and distribution.  FNC will circulate and post broadly within FNC the name, telephone number, function, and office location of the Administrator(s), including a TTY telephone number, through which the ADA Administrator or Co-Administrator on duty can be contacted twenty-four (24) hours a day seven days a week by Patients and Companions who are deaf or hard of hearing. The ADA Administrator or Co-Administrators will be responsible for the complaint resolution mechanism described in paragraph 25 of this Agreement.  The ADA Administrator or Co-Administrators will be designated by FNC no later than 30 days following execution of this Agreement and will be subject to approval by the U.S. Attorney’s Office.
  28. Auxiliary Aid and Service Log.  FNC will maintain a log in which requests for qualified interpreters on site or through video remote services will be documented. The log will indicate the time and date the request was made, the name of the Patient or Companion who is deaf or hard of hearing, the time and date of the scheduled appointment (if a scheduled appointment was made), the nature of the auxiliary aid or service provided, and the time and date the appropriate auxiliary aid or service was provided.  If no auxiliary aid or service was provided, the log shall contain a statement why the auxiliary aid and service was not provided.  The log should include the identity of the FNC personnel who conducted the assessment and made the determination.  Such logs will be maintained by the ADA Administrator for the entire duration of the Agreement, and will be incorporated into the semi-annual Compliance Reports as described in paragraph 50 of this Agreement.
  29. Complaint Resolution.  FNC will establish a grievance resolution mechanism for the investigation of disputes regarding effective communication with Patients and Companions who are deaf or hard of hearing.  FNC will maintain records of all grievances regarding effective communication, whether oral or written, made to FNC and actions taken with respect thereto.  At the time FNC completes its assessment described in paragraph 21 and advises the Patient and/or Companion of its determination of which appropriate auxiliary aids and services are necessary, FNC will notify deaf and hard of hearing persons of its grievance resolution mechanism, to whom complaints should be made, and of the right to receive a written response to the grievance.  A written response to any grievance filed shall be completed within seven (7) days of receipt of the complaint.  Copies of all grievances related to provision of services for Patients or Companions who are deaf or hard of hearing and the responses thereto will be maintained by the ADA Administrator for the entire duration of the Agreement, and will be incorporated into the semi-annual Compliance Reports as described in paragraph 50 of this Agreement.
  30. Prohibition of Surcharges.  All appropriate auxiliary aids and services required by this Agreement will be provided free of charge to the Patient or Companion who is deaf or hard of hearing.
  31. Record of Need for Auxiliary Aid or Service.  FNC will take appropriate steps to ensure that all FNC Personnel are made aware of a Patient or Companion’s disability and auxiliary aid and services needed so that effective communication with such person will be achieved.  These steps will include designating this information in the medical record.  The patient’s medical record shall be conspicuously labeled (such as with a sticker, indicator, or label on the cover) to alert FNC Personnel to the fact that the Patient and/or Companion is deaf or hard of hearing.  The medical record shall indicate the mode of communication requested by and provided to the Patient or Companion.
  32. C. Qualified Interpreters

  33. Circumstances Under Which Interpreters Will Be Provided.  Depending on the complexity and nature of the communication, a qualified interpreter may be necessary to ensure effective means of communication for Patients and Companions.  When an interpreter is needed, the FNC shall provide qualified sign language interpreters to Patients and Companions who are deaf or hard-of- hearing and whose primary means of communication is sign language, and qualified oral interpreters to such Patients and Companions who rely primarily on lip reading as necessary for effective communication.  Examples of circumstances when the communication may be sufficiently lengthy or complex so as to require an interpreter include the following:
    1. Discussing a patient’s symptoms and medical condition, medications, and medical history;
    2. When FNC conducts its initial and periodic assessments of a patient;
    3. Explaining medical conditions, treatment options, tests, medications, surgery and other procedures;
    4. Providing a diagnosis and recommendation for treatment;
    5. Communicating with a patient during treatment, including physical and occupational therapies, testing procedures, and during physician’s rounds;
    6. Obtaining informed consent for treatment;
    7. Providing instructions for medications, pre- and post-surgery instructions, post-treatment activities and follow-up, treatments;
    8. Providing mental health services, including group or individual counseling for patients and family members;
    9. Providing information about blood or organ donations;
    10. Discussing powers of attorney, living wills and/or complex billing and insurance matters;
    11. During educational presentations;
    12. Discussing discharge planning and discharge instructions; and
    13. When FNC provides religious services and spiritual counseling.
  34. Chosen Method for Obtaining Interpreters.  Within thirty (30) days after execution of this Agreement, FNC will identify one or more interpreter services and will make appropriate arrangements with said services to provide qualified on site interpreters as well as VRI services at the request of FNC.  FNC will establish internal procedures for ordering interpreting services that is consistent with the interpreter or interpreter agencies’ procedures.  At a minimum, all of FNC’s requests for interpreters, including the time and date, will be confirmed in writing at the time of the request.  Further, FNC will consider an order for interpreting services to be complete only after receiving written confirmation from the interpreting service that an interpreter will be provided at the time and date requested.  FNC will file a copy of all written correspondence with interpreting services in the patient’s medical chart.  Additionally, for the duration of this Agreement, FNC will file a copy of its written correspondence with interpreters and interpreting agencies in the Auxiliary Aid and Service Log discussed in paragraph 24.
  35. Provision of Interpreters in a Timely Manner.
    1. Non-scheduled Interpreter Requests.  A “non-scheduled interpreter request” means a request for an interpreter made by a Patient or Companion who is deaf or hard of hearing with less than two (2) hours advanced notice.  For non-scheduled interpreter requests, FNC Personnel will complete the assessment described in paragraphs 21 and 22 above.  The interpreter shall be provided no more than (a) two (2) hours from the time FNC completes the assessment if the service is provided through a contract interpreting service or a staff interpreter who is located off-site or (b) thirty (30) minutes from the time FNC completes the assessment if the service is provided through a Video Remote Interpreting service as described in paragraph 31 below.  Deviations from this response time will be addressed with the interpreting service provider, and performance goals will be reviewed with the U.S. Attorney’s Office.  If no interpreter can be located, FNC Personnel will take the following additional steps:
      1. FNC Personnel will exert reasonable efforts (which shall be deemed to require no fewer than five (5) telephone inquiries and/or emails and/or text messages unless exceptional circumstances intervene) to contact any interpreters or interpreting agencies already known to FNC and request their services;
      2. Inform the ADA Coordinator of the efforts made to locate an interpreter and solicit assistance in locating an interpreter;
      3. Inform the Patient or Companion (or a family member or friend, if the Patient or Companion is unavailable) of the efforts taken to secure a qualified interpreter and that the efforts have failed, and follow up on reasonable suggestions for alternate sources of qualified interpreters, such as contacting a qualified interpreter known to that person; and
      4. Document all of the above efforts.
    2. Scheduled Interpreter Requests.  A “scheduled interpreter request” is a request for an interpreter made two (2) or more hours before the services of the interpreter are required.  For scheduled interpreter requests, FNC will complete the assessment described in paragraph 21 above in advance, and, when an interpreter is appropriate, FNC will make a qualified interpreter available at the time of the scheduled appointment.  If an interpreter fails to arrive for the scheduled appointment, upon notice that the interpreter failed to arrive, FNC will immediately call an interpreter service for another qualified interpreter.
    3. Data Collection on Interpreter Response Time and Effectiveness.  FNC will  monitor the performance of each qualified interpreter it uses to provide communication to Patients or Companions who are deaf or hard of hearing by monitoring their response time and seeking feedback from the individual who requires the services of the interpreter.  As part of the Auxiliary Aid and Service Log, described in paragraph 24, FNC shall collect and document information regarding response times and effectiveness for each request for an interpreter.
  36. Video Remote Interpreting (VRI).  VRI can provide immediate, effective access to interpreting services in a variety of situations including emergencies and unplanned incidents.  When using VRI services, FNC shall ensure that it provides:  (1) Real-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) Adequate 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).  VRI shall not be used when it is not effective due, for example, to a patient’s limited ability to move his or her head, hands or arms; vision or cognitive issues; significant pain; or due to space limitations in the room.  If, based on the circumstances, VRI is not providing effective communication after it has been provided or is not available due to circumstances outside of FNC’s control, VRI shall not be used as a substitute for an on-site interpreter, and an on-site interpreter shall be provided in accordance with the timetable set forth above.
  37. Notice to Patients and Companions, Who are Deaf or Hard of Hearing.  As soon as FNC Personnel have determined that a qualified interpreter is necessary for effective communication with a Patient or Companion who is deaf or hard of hearing, FNC will inform the Patient or Companion (or a family member or friend, if the Patient or Companion is not available) of the current status of efforts being taken to secure a qualified interpreter on his or her behalf.  FNC will provide additional updates to the Patient or Companion as necessary until an interpreter is secured.  Notification of efforts to secure a qualified interpreter does not lessen FNC’s obligation to provide qualified interpreters in a timely manner as required by paragraph 30 of this Agreement.
  38. Other Means of Communication.  FNC agrees that between the time an interpreter is requested and the interpreter is provided, FNC Personnel will continue to try to communicate with the Patient or Companion who is deaf or hard of hearing 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 FNC’s obligation to provide qualified interpreters in a timely manner as required by paragraph 30 of this Agreement.
  39. Restricted Use of Certain Persons to Facilitate Communication.  FNC will not rely on an adult friend or family member of the individual with a disability to interpret except in an emergency involving an imminent threat to the safety of an individual or the public where there is no interpreter available; or where the individual with a disability specifically requests that the adult friend or family member interpret, the accompanying adult agrees to provide such assistance, and reliance on that adult for such assistance is appropriate under the circumstances.  FNC will not rely on a minor child or a patient to interpret except in an emergency involving an imminent threat to the safety of an individual or the public where there is no interpreter available.
  40. Individuals May Revise Their Communication Requests.  If a Patient or Companion indicates to FNC Personnel that he or she wants an interpreter after failing to request one on the Deaf or Hard of Hearing Communication Request Form, FNC Personnel shall provide the Patient or Companion with a new Deaf or Hard of Hearing Communication Request Form.  FNC Personnel shall then comply with the requirements of paragraphs 21 and 22 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.
  41. D. Telephones and Television

  42. Telephones in Patient Rooms.  Within sixty (60) days of the Effective Date of this Settlement Agreement:
    1. Portable access technology – defined.  FNC will make available portable access technology.  Such technology, as referred to in this section, shall include TTY’s with printout capability, other electronic devices, visual notification devices for incoming telephone calls, volume control telephones, and telephones that are hearing aid compatible.  FNC will ensure that each volume control telephone complies fully with § 704.3 of the 2010 Standards.
    2. Portable access technology - general obligation.  FNC will make portable access technology available to Patients and Companions who are deaf or hard of hearing who are admitted to (or are accompanying Patients who are admitted to) rooms equipped with a telephone.
    3. Electrical Outlets.  Each patient room with a telephone shall have an electrical outlet within four (4) feet of the telephone connection to facilitate the use of a TTY device.
    4. Timeliness.  Within sixty (60) days of the Effective Date of this Settlement Agreement, FNC will make the equipment required by this section available within thirty (30) minutes of a Patient’s arrival in a patient room, regardless of the hour of the day or night.  FNC will notify all relevant Personnel of the availability and location of this equipment.
  43. Televisions and Caption Decoders.  Within sixty (60) days of the Effective Date of this Settlement Agreement, FNC will develop a policy to ensure that Patients and Companions with hearing impairments have priority use of televisions with closed captioning capabilities.  28 C.F.R. § 36.303(e).
  44. Clearly stated directions for use of the closed caption capability shall be included in the Patient Guide or otherwise made available in each patient room or public area containing a television with captioning capability.  The directions for operating the closed caption function shall also accompany all closed caption decoders for standard television sets.
  45. E. Notice to Community

  46. Policy Statement.  Within ninety (90) days of the entry of this Agreement, FNC shall post and maintain signs of conspicuous size and print at all FNC admitting stations and wherever a Patient’s Bill of Rights is required by law to be posted.  Such signs shall be to the following effect:
  47. Sign language and oral interpreters, TTYs, and other auxiliary aids and services are available free of charge to people who are deaf or hard of hearing.  For assistance, please contact any FNC Personnel or the Information Office at _____________(voice/TTY), room ______.

  48. Website.  FNC will include on its website the policy statement described in paragraph 39 above.
  49. Patient Handbook.  FNC will include in all future printings of its Patient Handbook (or equivalent) and all similar publications a statement to the following effect:
  50. To ensure effective communication with Patients and their Companions who are deaf or hard of hearing, we provide appropriate auxiliary aids and services free of charge, such as:  sign language and oral interpreters, video remote interpreting services, TTYs, note takers, written materials, telephone handset amplifiers, assistive listening devices and systems, telephones compatible with hearing aids, televisions with caption capability or closed caption decoders, and open and closed captioning of most FNC programs.

    Please ask your nurse or other FNC Personnel for assistance, or contact the Information Office at ______________ (voice or TTY), room _________________.

    FNC will also include in its Patient Handbook (or equivalent) a description of its complaint resolution mechanism.

    F.         Notice to FNC Personnel and Physicians

  51. FNC shall publish on its intranet a policy statement regarding the FNC’s policy for effective communication with persons who are deaf or hard of hearing.  This policy statement shall include, but is not limited to, language to the following effect:

    If you recognize or have any reason to believe that a Patient or a relative, close friend, or Companion of a Patient is deaf or hard of hearing, you must advise the person that appropriate auxiliary aids and services, such as sign language and oral interpreters, video remote interpreting services, TTYs, note takers, written materials, telephone handset amplifiers, assistive listening devices and systems, telephones compatible with hearing aids, televisions with captioning or closed caption decoders, and open and closed captioning of most skilled nursing facility programs, will be provided free of charge when appropriate.  If you are the responsible health care provider, you must ensure that such aids and services are provided when appropriate.  All other personnel should direct that person to the appropriate ADA Administrator at _____________ and reachable at ________________.

    FNC will deploy this policy on the intranet within thirty (30) days of the Effective Date of this Agreement to all FNC Personnel and both employed and affiliated physicians (physicians with practicing or admitting privileges), and to all new FNC Personnel and newly employed or affiliated physicians upon their affiliation or employment with FNC.

G. Training

  1. Training of ADA Administrator.  FNC will provide mandatory training for the ADA Administrator(s) within sixty (60) days of designation as provided in paragraph 23 of this Agreement or approval of the trainer by the U.S. Attorney’s Office as provided in paragraph 48 of this Agreement, whichever is later.  Such training will be sufficient in duration and content to train the ADA Administrator(s) in the following areas:
    1. To promptly identify communication needs of Patients and Companions who are deaf or hard of hearing and which auxiliary aids are effective in different circumstances;
    2. To secure qualified interpreter services as quickly as possible when necessary;
    3. To encourage clinical staff members to notify FNC of Patients and Companions who are deaf or hard of hearing as soon as Patients schedule admissions, tests, rehabilitation, or other health care services at the FNC;
    4. To use, when appropriate, flash cards and pictographs (in conjunction with any other available means of communication that will augment the effectiveness of the communication);
    5. How and when to use video remote interpreting services;
    6. Making and receiving calls through TTYs and the relay service; and
    7. FNC’s complaint resolution procedure described in paragraph 25 of this Agreement.
  2. Training of FNC Personnel.  Except for affiliated physicians, who are governed by paragraph 47 of this Agreement, FNC will provide mandatory annual in-service training to all FNC Personnel.  
    1. The training will address the needs of Patients and Companions who are deaf or hard of hearing and will include the following objectives:
      1. To promptly identify communication needs of Patients and Companions who are deaf or hard of hearing;
      2. To secure qualified interpreter services or video remote interpreting services as quickly as possible when necessary; and
      3. To use, when appropriate, flash cards and pictographs (in conjunction with any other available means of communication that will augment the effectiveness of the communication).
    2. Such training must be provided within sixty (60) days of the approval of the trainer by the U.S. Attorney’s Office as provided in paragraph 48 of this Agreement.
    3. New employees must be trained within thirty (30) days of their hire.  A screening of a video of the original training will suffice to meet this obligation.
  3. Training of Telephone Operators.  All FNC Personnel who receive incoming telephone calls from the public will receive instructions by FNC on using TTYs or relay services to make, receive, and transfer telephone calls and will receive training generally on the existence in FNC of an ADA Administrator, as detailed in paragraph 23 of this Agreement, and the complaint resolution process, as described in paragraph 25 of this Agreement.  Such training must be provided within sixty (60) days of the approval of the trainer by the U.S. Attorney’s Office as provided in paragraph 48 of this Agreement and will be conducted annually thereafter.
  4. Training Attendance Sheets.  FNC will maintain in electronic form for the duration of this Agreement, confirmation of training conducted pursuant to paragraphs 43-45 of this Agreement, which will include the names, signature, and respective job titles of the attendees, as well as the date and time of the training session.
  5. Training of Affiliated Physicians.  FNC will create and send an email blast advising affiliated physicians of its policy on the communication needs of Patients or Companions who are deaf or hard of hearing and will invite all physicians who are affiliated with FNC (admitting or other privileges, etc.) to complete computerized training.  This email will direct affiliated physicians to FNC’s web page which will include:  (1) FNC’s Policy Statement for persons working at the skilled nursing facility as described in paragraph 39 and any relevant forms; and (2) a request that physicians’ staff members notify FNC of Patients and Companions who are deaf or hard of hearing as soon as they schedule admissions, tests, or other health care services at the skilled nursing facility.
  6. FNC will hire an independent agency or group to conduct the initial trainings described in this Agreement.  The trainer shall be subject to the approval of the U.S. Attorney’s Office.  For the required annual trainings thereafter, FNC may conduct the trainings without the assistance of an independent group, but must sufficiently update and/or create training materials in order to ensure the trainings include any new developments to the ADA and its requirements.  FNC may also videotape the initial trainings for annual trainings as long as FNC also ensures that it supplements such training with any new developments to the ADA and its requirements.
  7. H. Reporting, Monitoring, and Violations

  8. Within ninety (90) days of the approval date of the trainer by the U.S. Attorney’s Office as provided in paragraph 48 of this Agreement, FNC will provide the United States with a copy of all training materials used to train its staff, training attendance sheets required in Paragraph 46, above, and photographs of the notices posted in its offices pursuant to this Agreement.
  9. Compliance Reports.  Beginning six (6) months after the Effective Date of this Agreement and every six (6) months thereafter for the entire duration of the Agreement, FNC will provide a written report (“Compliance Report”) to the U.S. Attorney’s Office regarding the status of its compliance with this Agreement.  The Compliance Report will include data relevant to the Agreement, including but not limited to:
    1. The Auxiliary Aid and Service Log described in paragraph 24; and
    2. The number of complaints received by FNC from Patients and Companions who are deaf or hard of hearing regarding auxiliary aids and services and/or effective communication, and the resolution of such complaints including any supporting documents, as described in paragraph 25.
    FNC will maintain records to document the information contained in the Compliance Reports and will make them available, upon request, to the U.S. Attorney’s Office.
  10. Complaints.  During the term of this Agreement, FNC will notify the U.S. Attorney’s Office if any person files a lawsuit, complaint or formal charge with a state or federal agency, alleging that FNC failed to provide auxiliary aids and services to Patients or Companions who are deaf or hard of hearing, or otherwise failed to provide effective communication with such Patients or Companions. Such notification must be provided in writing via certified mail within twenty (20) days of the date FNC received notice of the allegation and will include, at a minimum, the nature of the allegation, the name of the person making the allegation, and any documentation possessed by FNC relevant to the allegation.  FNC will reference this provision of the Agreement in the notification to the U.S. Attorney’s Office.
  11. I. Establishment of Fund to Sponsor Training of Virginia Nursing Facilities

  12. Within fifteen (15) days of the Effective Date of this Agreement, the FNC will establish a sub-account in the amount of twelve thousand five hundred dollars and no cents ($12,500.00) titled “Training Fund – ADA auxiliary aids and services requirements” and provide proof thereof to the U.S. Attorney’s Office. These funds will be used by FNC for the sole purpose of engaging an organization to develop and present training to nursing facilities located in Virginia in compliance and best practices with respect to the auxiliary aids and services requirements of the ADA and its implementing regulations, with the goal of presenting such training at the annual convention of the Virginia Health Care Association (“VHCA”) or a similar event. The trainer and its proposed training program shall be subject to the approval of the U.S. Attorney’s Office. It is the goal of the parties that the trainer and program be approved in sufficient time to request inclusion on the VHCA program for its convention scheduled for September 2015. Regardless, at least one approved training event should be conducted within two (2) years of the Effective Date of this agreement. In the event that funds remain available after the initial training event is paid in full, the remaining funds will be used to conduct a similar training event or events, each subject to prior review and approval as set forth above. For the avoidance of doubt, provided that the VHCA training presentation is approved and arranged, comparable presentations by the trainer at subsequent annual conventions of the VHCA until the funds are exhausted will satisfy this provision. FNC will include information about payments made to the trainer and the dates of training scheduled or conducted within the reporting period in its Compliance Reports.
  13. J. Compensatory Relief for Complainants and Release

  14. Within ten (10) days after receiving the complainants’ signed releases (a blank release form is at Exhibit B), FNC will send two checks as follows:  (1) in the amount of sixty-five thousand dollars and no cents ($65,000.00) made out to Complainant B.D.; and (2) in the amount of fifteen thousand dollars and no cents ($15,000.00) made out to Complainant D.D.  These check are compensation to the Complainants pursuant to 42 U.S.C. § 12188(b)(2)(B), for the effects of the alleged discrimination suffered as described in paragraphs 4 and 9(a)-(g) above.  The checks shall be mailed to:
  15. Financial Litigation Unit
    United States Attorney’s Office for
    Eastern District of Virginia
    101 W. Main Street #8000
    Norfolk, VA  23510

    A copy of the checks shall be sent to:

    Steven Gordon
    Assistant United States Attorney
    2100 Jamieson Avenue
    Alexandria, VA  22314

    K. Payment to the United States to Vindicate the Public Interest

  16. Within fifteen (15) days of the Effective Date of this Agreement, the FNC will pay to the United States of America the sum of five thousand dollars and no cents ($5,000.00) to vindicate the public interest.  The check shall be mailed to:
  17. Financial Litigation Unit
    United States Attorney’s Office for
    Eastern District of Virginia
    101 W. Main Street #8000
    Norfolk, VA  23510

    A copy of the checks shall be sent to:

    Steven Gordon
    Assistant United States Attorney
    2100 Jamieson Avenue
    Alexandria, VA  22314

    L. Enforcement and Miscellaneous

  18. This Agreement will be in effect for three (3) years from the Effective Date.
  19. In consideration of the terms of this Agreement as set forth above, the Attorney General agrees to refrain from undertaking further investigation or from filing a civil suit under title III of the ADA related to the allegations in paragraphs 3 through 9(a)-(g), except as provided in paragraph 57.  Nothing contained in this Agreement is intended or shall be construed as a waiver by the United States of any right to institute proceedings against FNC for violations of any statutes, regulations, or rules administered by the United States or to prevent or limit the right of the United States to obtain relief under the ADA.
  20. The United States may review compliance with this Agreement at any time and can enforce this Agreement if the United States believes that it or any requirement thereof has been violated by instituting a civil action in the U.S. District Court.  If the United States believes that this Agreement or any portion of it has been violated, it will raise its claim(s) in writing with FNC, and the parties will attempt to resolve the concern(s) in good faith.  The United States will allow FNC thirty (30) days from the date it notifies FNC of any breach of this Agreement to cure said breach, prior to instituting any court action to enforce the ADA or the terms of the Agreement.
  21. This Agreement and the attachments hereto constitute the entire agreement between the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written agreement, shall be enforceable.  This Agreement is limited to the facts set forth herein and does not purport to remedy any other potential violations of the ADA or any other federal law.
  22. This 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.  FNC has a duty to so inform any such successor in interest of this Agreement.
  23. Failure by the United States to seek enforcement of this Agreement pursuant to its terms with respect to any instance or provision shall not be construed as a waiver to such enforcement with regard to other instances or provisions.
  24. The effective date of this Settlement Agreement is the date of the last signature below.
  25. This Agreement may be executed in counterparts, each of which constitutes an original and all of which constitute one and the same Agreement.  Electronically transmitted signatures shall constitute acceptable, binding signatures for purposes of this Agreement.

FOR THE UNITED STATES OF AMERICA

DANA J. BOENTE
United States Attorney
Eastern District of Virginia

By:

_______________________________
STEVEN GORDON
Assistant United States Attorney
United States Attorney’s Office
Eastern District of Virginia    
Justin W. Williams U.S. Attorney’s Bldg.
2100 Jamieson Avenue
Alexandria, Virginia 22314
Telephone: 703-299-3817
steve.gordon@usdoj.gov

DATED: _______________

FOR FAIRFAX NURSING CENTER, INC.


DATED:________________

BY:

_______________________
Robert Bainum
President