|UNITED STATES OF AMERICA
USAO NO. 2002v00097
|* * *|
This settlement agreement arose initially out of a complaint received by the United States Attorney's Office alleging the failure of Meadowcrest Hospital to provide auxiliary aids and services, including qualified sign language interpreters, where such aids and services were necessary for effective communication with persons who are deaf or hard of hearing or who have other communication-related disabilities, and required by Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 1218 1-89 (hereinafter "ADA"), Title III regulations, 28 C.F.R. pt. 36, Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 ("Section 504"), and Section 504 regulations, 45 C.F.R. pt. 84.
The intent of this Settlement Agreement is twofold: (1) to provide deaf and hard of hearing persons with an equal opportunity to receive and benefit from the hospital's goods, services and accommodations, and (2) to facilitate accurate, effective, timely and dignified communication between hospital personnel and persons who are deaf or hard of hearing. Effective communication is critical in virtually all medical contexts. Receiving accurate information from the patient or family members is basic to diagnoses. Successful treatment almost always depends on whether the patient and involved family members understand diagnoses and prognoses and have accurate information about procedures and medications.
Meadowcrest Hospital is committed to full compliance with federal and state laws barring discrimination on the basis of disability. Meadowcrest Hospital recognizes its legal obligations to ensure effective communication with persons who are deaf or hard of hearing. The hospital is committed to pro-actively assessing communication needs as well as providing the highest quality of services to all who use them, including persons who are deaf or hard of hearing.1 Sign language interpreters and other auxiliary aids and services are necessary to provide equal access to hospital services for deaf and hard of hearing individuals.
The United States of America and Meadowcrest Hospital each have an interest in working to ensure effective communication between deaf and hard of hearing individuals and the employees of Meadowcrest Hospital. The hospital enters into this Settlement Agreement as evidence of its commitment to effective communication with deaf and hard of hearing people. The Department of Justice and the hospital have decided to focus on their shared interest in working together in pursuit of the goal of ensuring that hospital personnel are able to communicate effectively with persons who are deaf or hard of hearing.
In pursuit of this shared goal, Meadowcrest Hospital and the United States of America have committed to a series of arrangements and procedures that the hospital now has in place, or is presently planning to put in place, pursuant to this Agreement. Meadowcrest Hospital therefore fully embraces these arrangements and procedures, which are spelled out in detail below, as part of its ongoing commitment to the needs of persons with disabilities, and reiterates its intention to comply with all provisions of this Settlement Agreement. Accordingly, Meadowcrest Hospital has determined that there is no need to litigate the complaint received by the Office of the United States Attorney to a conclusion, and has jointly agreed to the final disposition of this action in its entirety, by consent to the following terms, as follows:
(a) The United States of America, by and through the United States Department of Justice, represents the public interest and has authority to enforce Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12132, 12188(a) and (b).
(b) Meadowcrest Hospital is a for-profit, privately owned and managed general acute care hospital that operates and is licensed under the laws of the State of Louisiana and engages in the delivery of health care services to the public in southeastern Louisiana, including emergency medical care, scheduled treatment, and short-term hospitalization. Meadowcrest Hospital is a public accommodation within the meaning of Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181-89; 28 C.F.R. §36.104 and is a program or activity receiving financial assistance within the meaning of Section 504 and 45 C.F.R. pt. 84.
2. Jurisdiction and Venue
Meadowcrest Hospital and the United States of America hereby stipulate that in the case of a deaf person who is seeking ongoing treatment at the hospital that complains the hospital has failed to provide the auxiliary aids or services required by this Agreement and the hospital continues to fail in providing such aids or services the United States District Court for the Eastern District of Louisiana shall have immediate jurisdiction over the action pursuant to 42 U.S.C. § § 12133 and 12188(b)(l)(B), and 28 U.S.C. § § 1331 and 1345. The hospital and the United States further stipulate in the case of a person who registers a complaint that is substantially likely to succeed on the merits that, because of the medical context, there will be a significant risk of irreparable harm to the deaf person and that injunctive relief will not harm the public interest. Venue shall be proper in the Eastern District of Louisiana pursuant to 28 U.S.C. § 1391 in that any claims alleged shall have arisen within this District. The parties hereby agree that the Court may grant declaratory and all other relief necessary to enforce the terms of this Agreement pursuant to 28 U.S.C. §§ 2201 and 2202.1. While this Agreement relates only to the obligations of Meadowcrest Hospital to persons who are deaf or hard of hearing, Meadowcrest Hospital agrees to take measures to ensure effective communication with persons who have speech impairments.
All terms and phrases used in this Agreement shall be interpreted consistently with the definitions and use of such terms and phrases in the ADA, Section 504 as well as the Title III and Section 504 regulations. The parties also agree to the following definitions:
(a) The term "hospital" means the following hospital: Meadowcrest Hospital, 2500 Belle Chasse Highway, Gretna, Louisiana 70056, and, unless the specific context of this settlement Agreement indicates otherwise, includes all other campuses, physician offices and other facilities that are either in the above-referenced hospital, or that are owned, operated, leased to or leased by Meadowcrest Hospital (whether in the hospital or not) as well as those which any one of Meadowcrest Hospital purchases or begins owning, operating, leasing to or from during the term of this Settlement Agreement.
(b) The term "admitting station" refers to each point of initial entry into Meadowcrest Hospital.
(c) The term "patient" refers to all persons who have received, sought or intend to seek medical services (including medical educational services) or medical care from Meadowcrest Hospital.
(d) The phrases "persons who are deaf" and "deaf persons" refers to persons who are deaf, late-deafened or hard of hearing. "Hard of hearing persons" include those persons who have a hearing deficit, who may or may not primarily use visual communication and who may or may not use auxiliary aids.
(e) The term "hospital personnel" includes all of the employees, independent contractors and volunteers involved in the delivery of health care services at Meadowcrest Hospital (including, without limitation, nurses (both those on staff and in the pool of floaters), physicians, social workers, technicians, admitting personnel, therapists and security staff).
(f) The term "appropriate auxiliary aids and services" are those auxiliary aids and services that are necessary to ensure(i) effective communication between deaf persons and hospital personnel, and (ii) that persons who are deaf or hard of hearing have the opportunity to participate in and benefit from the hospital's goods, services, facilities, advantages and accommodations that is equal to the opportunities available to hearing persons. Depending on the facts and circumstances of each particular situation, appropriate auxiliary aids and services may include, without limitation, qualified interpreters, telecommunication devices for the deaf (TDD's), assistive listening systems and devices (ALD's), captioned televisions, trained note-takers, telephone "flashers" to indicate incoming calls (where appropriate, such as in patient rooms) and other similar aids and services as illustrated by 28 C.F.R. § 36.303(b)(l). Appropriate auxiliary aids ordinarily do not include new or experimental technology that is not generally available and is not widely used in the United States.
(g) The term "telecommunication device for the deaf" (TDD) - also known as TTY -- is a device designed to provide visual communication over the telephone lines consisting of a standard computer key board and screen as well as an acoustic coupler.
(h) The term "assistive listening device" (ALD) is used in conjunction with an amplification system designed to help people hear better in a variety of difficult listening situations. The basic function of an ALD is to improve the "signal to noise ratio" for the listener. ALD's can be used to improve enjoyment of televisions, general use amplification systems, and conversations. ALD's typically employ infrared or FM technology.
(i) The term "qualified sign language interpreter," "oral interpreter" or "interpreter" means an interpreter who has the knowledge and demonstrated understanding of the code of ethics as written by the Registry of Interpreters for the Deaf, Inc. and who is able to interpret competently, accurately, and impartially both receptively and expressively, using any specialized terminology necessary for effective communication in a medical setting. Someone who has only a rudimentary familiarity of sign language or finger spelling is not a "qualified interpreter" under this Agreement or the ADA. Likewise, someone who is fluent in sign language but who does not possess the ability to process spoken communication into the proper signs or to observe someone else signing and change his or her signed or finger-spelled communication into spoken words is not a qualified sign language interpreter. For the purposes of this Agreement, a "qualified sign language interpreter" shall be an interpreter referred by the Deaf Action Center of Greater New Orleans; or, in emergency circumstances as defined in paragraph 7(c) iii, infra, an interpreter who has certification from the National Registry of Interpreters for the Deaf; an interpreter who has a sign language registration and license from the State of Louisiana (if available); or any other interpreter approved by the Office of the United States Attorney. In selecting a qualified interpreter, the hospital and any interpreting agency shall give first consideration to persons who are certified by the Registry of Interpreters for the Deaf, Inc. The effectiveness of an individual interpreter, and hence, the determination of whether an interpreter is "qualified" for the purposes of Title III and this Agreement, is relative to the interpreter's ability to communicate to a particular individual, given the language skills, history, and preferences of that person. For example, an interpreter who uses Signed English or Cued Speech may not be as qualified to interpret for someone whose primary language is American Sign Language.
4. Effective Communication and Equal Access
Meadowcrest Hospital shall provide appropriate auxiliary aids and services, including sign language interpreters, where such aids and services are necessary to ensure effective communication with persons who are deaf and shall provide persons who are deaf with the full and equal enjoyment of the services, privileges, facilities, advantages and accommodations of Meadowcrest Hospital as required by this Agreement, the ADA and Section 504. In addition, the hospital 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. Meadowcrest Hospital also agrees not to retaliate against any person who is trying to exercise his or her rights under this Agreement or the ADA. In furtherance of this commitment, Meadowcrest Hospital agrees to implement and follow the arrangements and procedures set forth in the provisions which follow within thirty (30) days of execution of this Agreement except where a particular provision sets forth a different deadline.
5. Disclaimer of Liability
Nothing in this Agreement shall be construed as an admission by Meadowcrest Hospital of any liability or fault or that they engaged in any wrongful or illegal activity. This Agreement shall not be offered or received in evidence in any action or proceeding in any court or other tribunal as an admission or concession of liability or wrongdoing of any nature on the part of the hospital, except in an action challenging the hospital's compliance with this Agreement.
6. Initial Intake of Deaf Patients
(a) Proactive Assessment
Meadowcrest Hospital will begin assessing the individual needs of a patient either at the time an appointment or admission is scheduled, upon arrival at its hospital emergency department, upon admission, or upon receipt of notification that a deaf person is being transported to the hospital. As part of this initial assessment, Meadowcrest Hospital will determine whether the patient is a person who is deaf. When such a determination is made, and as soon as the patient's condition reasonably allows, the nurse, physician or other hospital personnel overseeing the provision of care will present the person who is deaf with a copy of "Services for Deaf and Hard of Hearing Persons" in the form of Exhibit A to this Agreement (hereinafter, "the Notice"). If the deaf individual is a minor or is unable to provide consent for medical treatment, the presentation will be made to an appropriate person, if any. Admitting station personnel will help the deaf person complete the Notice when necessary. After the above-referenced Notice is returned to the admitting station, hospital personnel shall consult with the person who is deaf to ensure the deaf person's preferred method(s) of communication, as well as the equipment preferred, to ensure effective communication issues are properly expressed on the Notice. Hospital personnel will then promptly inform the ADA Coordinator or personnel employed in the hospital's Plant Operations Department of any equipment needs requested by or on behalf of the deaf person and follow the procedures set forth in paragraph 7 of this Agreement. In order to alert hospital personnel to a deaf person's communication and equipment needs, the completed Notice, or all information contained in the completed Notice, will then be included with the deaf person's medical chart for the remainder of his or her stay at the hospital, and the chart itself will be conspicuously labeled (such as with a sticker, a tab, or the Notice itself used as a cover) to alert hospital personnel to the fact that the patient is a deaf person. Meadowcrest Hospital will retain the Notice, and any Refusal signed, and take such record gathering and retention steps as are reasonably necessary to ensure that the hospital can supply the information called for by paragraph 20 of this Agreement.
(b) Posting of Signs
Within ninety (90) days of the execution of this Agreement, Meadowcrest Hospital will post and maintain signs of conspicuous size and print at all hospital admitting stations and at all general public entrances, and wherever the Patient's Bill of Rights is required to be posted by law, stating:
To ensure effective communication with Patients and their companions who are deaf or hard of hearing, this hospital provides sign language interpreting services, telecommunication devices (TTY's), and other aids and services to persons who are deaf or hard of hearing. These services are provided by the hospital free of charge. Please ask your nurse or other hospital personnel for assistance.
These signs will include the international signs for "interpreter," "TDD," "deaf and "assistive listening device." The signs referenced in this paragraph will comply with the applicable provisions of section 4.30 of the ADA Standards for Accessible Design ("Standards"), 28 C.F.R. pt. 36. App. A.
(c) Patient Handbook
The statement to be posted under paragraph 6(b) of this Agreement will also be replicated in all regularly scheduled printings of patient handbooks (or equivalent publications) during the life of this Agreement.
7. Interpreting Services
(a) Prompt Call for Interpreters
Making a timely call for an interpreter is of high priority and of great importance. Immediately upon completing the assessment and Notice requirements of paragraph 6(a) of this Agreement and determining that a person scheduled to be a patient is a person who is deaf who has checked "Yes" on Question 1 of Part II on the Notice referenced in paragraph 6 (a) above (or on whose behalf another responsible person has so indicated) and not completed the Refusal form referenced below in subpart (b) of this paragraph of this Agreement, hospital personnel involved with the patient will promptly schedule (if the patient is not then at or soon to be at the hospital) or otherwise promptly call for an interpreter to be provided by the resources identified in subpart (b) of this paragraph of the Agreement. The term "promptly call" as used in the prior sentence shall be deemed to mean a telephone call within ten (10) minutes. Meadowcrest Hospital shall provide a qualified sign language interpreter and/or other appropriate auxiliary aids and services in all circumstances where necessary for effective communication as required by the ADA and Section 504, including, but not limited to the following circumstances: (i) determination of a patient's medical history or description of ailment or injury; (ii) provision of patient rights, informed consent or permission for treatment; (iii) explanation of living wills or powers of attorney (or its availability); (iv) diagnosis or prognosis of an ailment or injury; (v) explanation of procedures, tests, treatment, treatment options or surgery; (vi) explanation of medications prescribed including dosage as well as how and when the medication is to be taken and any possible side effects; (vii) explanation regarding follow-up treatment, therapy, test results or recovery; (viii) discharge instructions; (ix) provision of psychiatric evaluation, group and individual therapy, counseling and other therapeutic activities, including grief counseling and crisis intervention; (x) explanation of any billing or insurance issues that may arise; (xi) classes concerning birthing, nutrition, CPR, weight management, etc.; (xii) informational presentations for patients or the public; and (xiii) blood and organ donation or aphaeresis. The health care professional in charge of coordinating the care for a patient who is deaf shall continue to assess in consultation with the patient (and, where appropriate, the patient's family members or close friends) the need for qualified interpreters and other auxiliary aids and services throughout the deaf patient's receipt of hospital services.
(b) Prearranging Guaranteed Access to Qualified Interpreters
In order for Meadowcrest Hospital to provide in accordance with this Agreement a qualified sign language interpreter to any deaf person on whose behalf the "Waiver" portion of the Notice in the form of Exhibit A to this Agreement has not been completed, Meadowcrest Hospital will:
i. Enter into an arrangement with a qualified sign language interpreting agency such as the Deaf Action Center of Greater New Orleans confirmed by a writing, including without limitation the provision of guaranteed qualified sign language interpreting services. The agreement will specify that an interpreter shall be made available as soon as possible and no later than one hour after the receipt of a request from Meadowcrest Hospital for an interpreter or at a pre-arranged time in the case of requests for coverage of pre-scheduled arrivals at a hospital. Said agreement shall be maintained during the period of time this Agreement remains in effect.
ii. In the event that the qualified sign language interpreting agency does not have a qualified interpreter available under the time frames specified in the preceding paragraph, Meadowcrest Hospital may otherwise secure such coverage by obtaining interpreting services from a list of other "free lance" qualified interpreters located within one hour's travel of the Hospital, said list to be approved by the U.S. Attorney's Office in consultation with the Deaf Action Center.
iii. Create, maintain and possess at the "Program Office" overseen by the person designated as the ADA Coordinator and all admitting stations of Meadowcrest Hospital an up-to-date list of office and 24-hour pager telephone numbers for each contract sign language interpreting agency as well as the telephone numbers of all such other qualified sign language interpreters residing within one hour's travel of the Hospital who are approved for inclusion on the list by the U.S. Attorney's Office.
(c) Restricted Use of Other Interpreters
i. Except in the limited circumstances described below in subparts (ii) and (iii) of this subsection of this Agreement, Meadowcrest Hospital shall never request a family member, companion, case manager, advocate or friend of a person who is deaf to interpret communications between hospital personnel and that person. If a person who is deaf rejects the hospital's offer of a free qualified interpreter and instead requests that a family member, companion, advocate, case manager, friend or other person be used to facilitate communication, Meadowcrest Hospital must:
> secure a signed "Waiver" form (set forth in part III of the Notice referenced in Section 6(a) (and attached as Exhibit A) to this Agreement) from the person who is deaf (or note in the patient's chart that the patient has both refused a hospital-supplied interpreter and refused to sign the Refusal form);
> ascertain that the family member, companion, advocate, case manager or friend is willing and able to facilitate communication; and
> explore with the patient other more effective means of communication (including repeating the offer of a qualified interpreter) when it appears to hospital personnel or is stated by the person who is deaf or the person facilitating communication that there is a lack of effective communication between the person who is deaf and hospital personnel or that other circumstances make it less desirable to continue in this relationship, such as the privacy interests of the deaf person.
ii. If a qualified interpreter retained by Meadowcrest Hospital to interpret communications between hospital personnel and a deaf person turns out to be a family member, companion, case manager, advocate or friend of the deaf person, the hospital may nonetheless hire and compensate that interpreter so long as neither the deaf person nor the interpreter objects.
iii. In an emergency situation in which the patient has not refused interpreter services and where the patient's medical condition might be compromised by waiting for an interpreter to arrive before beginning the assessment and treatment, the hospital personnel shall immediately contact a qualified interpreter, and, until the interpreter's arrival, the hospital personnel may use flash cards, pictograph forms, written notes, charts, diagrams and its best efforts to provide the most effective communication possible until such time as the qualified interpreter arrives at the hospital, including, in appropriate circumstances the use of family members or friends who are not qualified sign language interpreters ("facilitators").
iv. Due to confidentiality, potential emotional involvement, and other factors that may adversely affect the ability to facilitate communication, Meadowcrest may never require or coerce a family member, case manager, advocate, or friend of a deaf or hard-of-hearing patient or companion to interpret or facilitate communications between Hospital personnel and such patient or companion. In any case, a facilitator may be used to interpret or facilitate communication only if the deaf or hard-of-hearing patient or companion does not object; if such person wishes to provide such assistance; if such use is necessary or appropriate under the circumstances, giving appropriate consideration to any privacy issues that may arise, and if the patient's waiver of a qualified sign language interpreter is recorded on the Notice andlor made in the patient's chart or records. This provision in no way lessens Meadowcrest's obligation to provide appropriate auxiliary aids and services as required under this Settlement Agreement.
8. Right of Deaf Patient to Change Mind
Nothing herein shall preclude a deaf patient who initially executes the reverse side of the Notice, thereby refusing interpretation services, from changing their mind at any time, simply by telling a hospital employee that they want an interpreter to be provided by the hospital.
9. Telecommunications Office
Meadowcrest Hospital shall maintain a Telecommunications Office (or equivalent) within the Plant Operations Department of the hospital to coordinate, supervise, and record the provision of TDD's, telephone flashers, closed caption decoders for standard televisions, amplified handsets, assistive listening systems and devices (ALD's) as well as other appropriate equipment-based auxiliary aids and services for persons who are deaf. The equipment shall be stored in a place at each hospital that is accessible at all times. Meadowcrest Hospital shall maintain a list of the use of such equipment as specified in paragraph 20(b) of this Agreement. Meadowcrest Hospital shall enable and give written authority to personnel from the Telecommunications Office to make emergency purchases or rentals, for immediate use, of any equipment necessary for effective communication with persons who are deaf if it is determined sufficient technical equipment is not available at the hospital. In no case, however, shall the hospital maintain less than two working TDD's for in-room patient use. The Telecommunications Office shall ensure that both of the patient TDD's are functional by testing them on at least a monthly basis as well as prior to sending a unit out for patient use. The Telecommunications Office shall also conduct testing of the TDD located in the Emergency Room Admission Office on a weekly basis, by conducting a test call to that phone number using a TDD and documenting the result. The hospital shall also monitor developments in technology and shall upgrade its telecommunications equipment when the hospital deems such an upgrade reasonable and appropriate. The Telecommunications Office personnel shall maintain recently-published catalogues as well as an up-to-date list of places where such equipment can be most readily purchased, leased or rented by the hospital.
In all circumstances where Meadowcrest Hospital makes the use of a telephone available for patients or others, the hospital shall promptly offer TDD's or telephones with amplified sound and which are hearing aid compatible, as appropriate, for persons who are deaf. If a person at Meadowcrest Hospital who is deaf is not familiar with the use of this equipment, hospital personnel will promptly show the person how to use the equipment.
All regularly scheduled printings of hospital patient handbooks (or equivalent publications) during the life of this Agreement shall fully describe the above-referenced availability of TDD's, telephones with amplified sound, visual flashers, and ALD's.
(a) Public Telephones Meadowcrest Hospital makes telephones free of charge on each floor of its facility; no pay telephones are installed. Meadowcrest will make a portable TDD available free of charge to anyone who requests one and will post a sign of conspicuous size and print, containing the international TDD symbol (as depicted in § 4.30 of the ADA Standards, 28 C.F.R. pt. 36, App. A) and giving notice to persons who are deaf and hard of hearing at the location of each free public telephone informing them how they may obtain a portable TDD.
(b) Incoming TDD Line and Calls
Meadowcrest Hospital will continue to maintain a separate and fully functioning incoming TDD telephone number for the emergency room. The hospital will continue to have the number published in general and TDD telephone directories, on hospital letterhead, billing correspondence, billing documents and hospital literature as well as wherever else voice telephone numbers are published by the hospital. Said publication may be accomplished as each document/directory comes up for regularly scheduled reprinting, but in no event shall said publication be accomplished later than one year from the date of this agreement. The incoming TDD telephone number shall lead directly to a functioning TDD and be maintained and answered at such times as regular incoming calls to such facilities are answered. The TDD shall at all times of the day and night be maintained and answered by hospital personnel who are trained in the specific use of the TDD and relay calls.
(c) Patient Rooms With Telephones
In any patient room in which telephones are made available, the hospital will promptly provide a deaf patient and any deaf person described in paragraph 16 of this Agreement who is with a patient in a patient room, the choice of a telephone with amplified sound which is hearing aid compatible or a TDD with a display screen or a printer and a visual flasher to signal incoming calls. Meadowcrest Hospital will install either the telephone with amplified sound which is hearing aid compatible or the TDD with a display screen or a printer and visual flasher within thirty (30) minutes of the patient's arrival in the room, or selection between these two options, whichever is earlier. In the case of TDD installation, the hospital will provide a shelf and an electrical outlet within four feet of the telephone connection to facilitate the use of the TDD, or the hospital will provide when needed a heavy-duty extension cord for patient rooms that are not so equipped. In order to make this choice practical and effective, the hospital will maintain a log of amplified telephone and TDD usage and maintain an adequate number of functioning TDD units equipped with visual flashers and printers sufficient to meet the demand as reflected by the log. Meadowcrest Hospital also agrees to purchase additional TDD's with display screens or printers and visual flashers as is reasonably needed to keep up with improved technology, or as needed to replace defective units.
(d) Patient Rooms Without Telephones
In units of Meadowcrest Hospital where patients normally do not have a telephone in the room, if patients are given access to common area telephones other than the public pay telephones identified in this Agreement, the hospital will make available in each such unit a portable telephone with amplified sound which is hearing aid compatible or a portable TDD with a display screen or a printer that can be used by persons who are deaf so that such patients have equal access to make outgoing calls and receive incoming calls as do hearing patients.
11. Captioned Televisions
In all patient rooms containing televisions and common areas where patients and others are able to watch televisions, televisions with caption capability (or caption decoders for standard televisions sets) shall be provided by the hospital for persons who are deaf while they are using such rooms per 28 C.F.R. ^36.303(e), within 60 days of this agreement. In the interim, Meadowcrest will provide a television with caption capability on a cart for any deaf patient or companion staying in a room where such a television is not yet permanently installed. All hospital-produced television advertising and programming and videos (including educational materials) broadcast over the public airways, transmitted via satellite or cable or otherwise produced after the execution of this Agreement shall be made available with captioning. If a person who is deaf does not know how to activate the captioning, hospital personnel will promptly show the person how to activate the captioning. Clearly stated and easily understood directions for use of the caption capability shall be in each hospital's patient handbook (or equivalent publication) or otherwise available in each room containing a television with captioning capability. The directions for operating the caption function shall accompany all caption decoders for standard television sets.
12. Fire Alarms
While visual alarms are not specifically required in patient rooms, Meadowcrest agrees that hospital evacuation procedures will be modified to include specific measures to ensure the safety of patients and visitors who are deaf or hard of hearing.
13. Assistive Listening Devices
Assistive Listening Devices (ALD's) shall be one of the auxiliary aids listed as available on the Admission Notice of Hospital Services for Persons who are Deaf or Hard-of-Hearing. Any deaf patient or person described in paragraph 16 of this Agreement who indicates on the Notice or otherwise that an ALD will allow him or her to communicate effectively will promptly be furnished at no cost to the deaf patient or person with an ALD (which is hearing aid compatible if appropriate) for the duration of his or her hospital stay (whether transient or as an inpatient). Hospital personnel shall be available at all times who are trained to deliver and provide instruction for use of the ALD's Meadowcrest Hospital will have and maintain within sixty (60) days of the execution of this Agreement at least one ALD and accompanying system, with written instructions, and purchase and maintain at least one additional ALD and accompanying system, with written instructions, within one year of the execution of this agreement. Appropriate hospital personnel will also be authorized to purchase or rent, for immediate use, additional ALD's if an additional or a different type of ALD is required for effective communication with any person who is deaf.
14. Forms and Pictographs
Meadowcrest Hospital will maintain in each patient care giving unit/department a standardized set of pictograph forms and flash cards to assist in providing effective communication between hospital personnel and persons who are deaf. The forms and cards shall be used by the emergency department personnel and elsewhere at the hospital and shall cover routine matters that do not involve complex information or legal or important medical decisions. Except in emergencies while awaiting other more effective means of communicating, the flash cards and forms shall be used merely as a means to facilitate, rather than as a substitute for, other more effective means of interaction with hospital personnel.
15. Written Hospital Policy
Meadowcrest Hospital shall publish within thirty (30) days of the execution of this Agreement in the form of a single, integrated document a written policy entitled, "Hospital Policy For Effective Communication With Persons Who Are Deaf Or Hard Of Hearing." The hospital will distribute this policy within sixty (60) days to all of its hospital personnel and affiliated physicians who are involved in patient care, patient services or communications with patients or otherwise involved in providing hospital services to the public, such as in public health education seminars. The appropriate policy shall thereafter be distributed to all new hospital personnel on or before affiliation or employment with the hospital. Specifically, each hospital policy shall include the following directive to all of its personnel: "If you recognize or have any reason to believe that a patient, a person accompanying a patient who will be involved in communications from and to care providers, or any other person using hospital services, is deaf or hard of hearing, you MUST offer to call a qualified sign language interpreter for that person and you. MUST advise the person that the sign language interpreter and/or other appropriate auxiliary aids and services will be provided at the hospital's expense." Within sixty (60) days, Meadowcrest Hospital will revise its policy for effective communication in all appropriate manuals and other publications such as the annual "MER" to explicitly require consultation with the deaf or hearing impaired patient/companion regarding the provision of effective communication through a sign language interpreter and/or other appropriate auxiliary aids and services. The Hospital will promptly make the policy available to any patient or member of the public upon request. Each policy and any change or revision thereto shall be submitted for prior approval to the Office of the United States Attorney, which approval will not be unreasonably withheld.
16. Non-Patient Deaf Persons and Hospital Services
Whenever a patient, whether deaf or not, may be accompanied by a deaf family member, relative, companion, friend or any other person who is deaf and who would reasonably be expected to desire or be authorized to communicate with hospital personnel about the patient -- including those who would normally receive information concerning the status of a patient's health, 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 any information, advice or instructions provided by hospital personnel, the hospital will offer at no charge to the person who is deaf (and no charge to the patient, whether the patient is deaf or hearing) those auxiliary aids and services, including qualified sign language interpreters, that would be offered to a patient who is deaf pursuant to the procedures and requirements specified in this Agreement, and shall so note in the patient's "Kardex" card. Meadowcrest Hospital shall not deny equal services, accommodations, or other opportunities to any individual because of the known hearing impairment of a patient with whom the individual is known to have a relationship or association.
If a deaf person participates in any educational, support, or other activities provided, sponsored (or co-sponsored), or participated in by Meadowcrest Hospital, such as a lecture or support group, the hospital will also offer that person such auxiliary aids and services, including qualified sign language interpreters, as are necessary to ensure effective communication whenever the hospital has received reasonable notice of such a need. All announcements and publicity in advance of the activity shall include instructions on how a person should request qualified interpreters or other auxiliary aids and services and a statement that they are offered free of charge.
Meadowcrest Hospital will provide the following training to hospital personnel:
(a) Mandatory In-service Training
In addition to distributing its Policy as required by paragraph 15 of this Agreement, and in addition to its normal training provided to hospital personnel, Meadowcrest Hospital will contract with a qualified sign language interpreting agency such as the Deaf Action Center of Greater New Orleans for in-service training sessions within six months of the execution of this Agreement. At least one of these in-service training sessions will be mandatory for each of the following:
i. All clinical directors, patient service administrators, nursing supervisors and ADA coordinators;
ii. All hospital personnel and volunteers who staff the emergency room registration desk, any admission desk for in-patient or out-patient registration or any general information desk;
iii. All triage and emergency department nurses, physicians and physician assistants; and
iv. All heads of each hospital department in which communication with patients or members of the public occurs. All hospital personnel who fall into any of the above four categories will attend at least one of the above-referenced in-service training sessions. These in-service training sessions, as supplemented by Meadowcrest Hospital if necessary, shall include in the curriculum the following: (i) the various degrees of hearing impairment; (ii) language and cultural diversity in the deaf community; (iii) dispelling myths and misconceptions about persons who are deaf; (iv) identification of communication needs of persons who are deaf; (v) the unique needs and problems encountered by late-deafened individuals; (vi) psychological implications of deafness and its relationship to interaction with hearing health care professionals; (vii) recommended and required charting procedures; (viii) types of auxiliary aids and services available at the hospital; (ix) the proper use and role of qualified sign language interpreters; (x) procedures and methods for accessing the hospital's system for providing sign language interpreters and the location of communication equipment (TDD's, telephone flashers, ALD's, closed caption decoders, etc.) as well as how to set up and use the equipment; (xi) requirements of this Agreement (including an explanation of the use and meaning of each part of the Notice attached as Exhibit A to this Agreement); and (xii) outside-the-hospital resources concerning the needs of persons who are deaf.
(b) Mandatory Emergency Department In-Service Training
In addition to the in-service training required by paragraph 17(a) of this Agreement, Meadowcrest Hospital will provide within six months formal, mandatory in-service training through outside speakers to all members of its emergency department staffs (i) to promptly identify communication needs and preferences of persons who are deaf; (ii) to secure interpreter services as quickly as possible; and (iii) to use flash cards and pictographs (to enhance, not replace, other means of providing the most effective communication available under the circumstances). Within the same time frame, the hospital will also identify and provide appropriate training for a staff member, with appropriate back up, for each duty shift to be responsible for coordinating communication services in the emergency department. Such staff will assist other emergency department personnel as is necessary in identifying persons who are deaf, assessing any communication needs and ensuring those communication needs are met as promptly as possible, but no later than the time requirements set forth in this Agreement.
(c) Mandatory In-Service Training for TDD Operators
All designated TDD operators, of which there will be at least one on duty in every department that receives incoming telephone calls from the public, will receive special instructions on installing and operating TDD's and using the Louisiana Relay Service or similar services to make and receive telephone calls to and from persons who are deaf. This training will include the use of abbreviations and other terminology as well as the use of streamlined/simplified grammar common to TDD communication. Said instructions may be provided by from the Deaf Action Center in New Orleans or through the certified completion of a self-training such as the EASE (Emergency Access Self Evaluation) program.
(d) Training for Physicians
Within six months Meadowcrest Hospital will prepare and distribute a set of materials to all physicians with hospital privileges. The materials will contain the hospital's policy and forms, a copy of the hospital's interpreter list, and a request that doctor offices notify hospital admitting personnel to disability-related needs of its patients when scheduling admissions, tests, surgeries or other health care services. Training on the matters covered in the material may be offered in an in service session or via a videotape of same. The same or comparable training will be provided upon orientation to new hospital employees falling into the foregoing categories (a)(i)-(iv), (b) and (c) -who do not complete the initial round of training applicable to them as specified above.
(a) Initial Patient Survey
Beginning on the date on which this Agreement is entered, Meadowcrest Hospital will compile an ongoing list of patients who are deaf who are known or believed to have used the hospital's services described herein from the date of entry of this Agreement. Meadowcrest Hospital will supplement its list with such information as it has from the records kept by its telecommunications personnel and its documentation with the providers of interpreting services reflecting the provision of aids or services to persons who are deaf other than patients. One year from the date in which this agreement is executed, Meadowcrest Hospital will mail a questionnaire to all persons then appearing on this list. The questionnaire will be prepared in clearly-stated and easily understood language and be mailed in an envelope containing a return envelope and postage. Meadowcrest Hospital will obtain the approval of the Office of the United States Attorney regarding the wording and form of the questionnaire, which approval will not be unreasonably withheld. The survey will appropriately solicit voluntary responses regarding the deaf person's level of satisfaction or dissatisfaction with the communication services provided, and whether the person believes that he or she has received equal services and an equal opportunity to participate in, and/or to benefit from, the hospital's services, whether the person has any suggestions for improving services in the future, and other questions determined by the hospital to be valuable in ascertaining the effectiveness of the interpreting and other auxiliary aids for persons who are deaf at the hospital. Meadowcrest Hospital may follow-up on the initial mailing with additional mailings to non responding persons.
(b) Patient Survey Reports
If the hospital's survey results indicate that any deaf person was not satisfied in any manner with the communications services provided, the hospital will interview the contract or other interpreter, if any, and the relevant hospital personnel who treated the person, report the survey results and the results of these interviews to the Office of the United States Attorney, seek the deaf person's consent to disclose his or her name to counsel for the United States, and will in any event make available to the Office of the United States Attorney a copy of the patient's medical records (redacted, as appropriate, if the person has not consented to having his or her name disclosed), all for the purpose of ascertaining whether, in fact, the terms of this Agreement and the requirements of the ADA and Section 504 were followed with respect to that person who is deaf.
(c) Subsequent Patient Surveys
If the United States notifies the hospital in writing that it believes that the hospital has failed to offer or provide to any person who is deaf the auxiliary aids and services required by this Agreement, the hospital will continue to conduct the survey procedures specified in subparagraph 18 (a) on an annual basis until there is for a continuous period of two years a record establishing the hospital's compliance with this Agreement, to the satisfaction of the United States. Meadowcrest Hospital shall in any event conduct at least one additional survey during the calendar years 2006-07 or 2007-08 under the same terms set forth in paragraphs 18(a) and 18(b). Meadowcrest Hospital will collect and analyze the survey results in a written report to be furnished to the Office of the United States Attorney within ninety (90) days after the survey is completed.
Meadowcrest Hospital will also provide to the Office of the United States Attorney all reports received from sign language interpreting agencies concerning the adequacy or inadequacy of interpreting services. The hospital's contract with a qualified sign language interpreting agency will require the agency to maintain and make available to the hospital a record of interpreter services provided by time of request, time on-site, duration, location, patient name, interpreter name, and comments of the interpreter regarding the perceived adequacy of the patient's communication style to that employed by the interpreter.
19. ADA Coordinator
Within thirty (30) days of the execution of this Agreement, Meadowcrest Hospital will designate an employee or officer to serve as its "ADA Coordinator." The ADA Coordinator will know where the appropriate auxiliary aids are stored and how to operate them, and will be responsible for its maintenance, repair, replacement, and distribution. The hospital will circulate broadly within the hospital the name, telephone numbers, function, and office location of its ADA Coordinator, including a TDD number that may be called by deaf persons in order to obtain the assistance of the ADA Coordinator. The hospital's ADA Coordinator will:
(a) Be the overall coordinator of the hospital's policy and responsible for developing or overseeing the development of specific procedures to implement the hospital policy specified in paragraph 15, including designing a system to ensure full implementation of the hospital's policy;
(b) Be responsible for making arrangements for scheduling, announcing, and promoting all
training required by this Agreement;
(c) Be responsible for coordinating community outreach required by this Agreement; and
(d) Be responsible for providing all reports required by this Agreement.
20. Administration and Record Keeping
In addition to the surveys and reports specified elsewhere in this Agreement, Meadowcrest Hospital will within ninety (90) days of the execution of this Agreement establish and implement a hospital-wide system for coding and readily identifying by computer all persons who are classified as deaf pursuant to paragraph 3(d) of this Agreement. The hospital's coding system will assure the ready availability of data for the purpose of determining the extent to which persons who are deaf are treated or visiting the hospital and being provided with equal opportunities to enjoy the hospital's services in all departments.
(b) List of Deaf Patients or Other Persons
Meadowcrest Hospital will also prepare and make available for inspection by the United States for each calendar year during which this Agreement is in effect a list showing for each deaf person:
i. Time and date of each initial intake or arrival;
ii. Information received on each intake Notice Form;
iii. Dates and times of interpreters on site for each person who is deaf;
iv. Dates and times any other auxiliary aids and services were provided.
21. Community Outreach by Meadowcrest Hospital
Meadowcrest Hospital agrees to engage in targeted outreach efforts. Such outreach efforts shall include the purchase of reasonable advertising space on at least one occasion during each year of this Agreement in newspapers of general circulation serving the same community as is served by the hospital, which advertisements include a statement that all appropriate auxiliary aids and services, including qualified sign language interpreters and TDD's, will be provided free of charge upon request, and include appropriate instructions regarding access to the ADA Coordinator at the hospital.
22. Monitoring and Enforcement
(a) Initial Compliance Report
Within one year of the execution of this Agreement, and every year thereafter for a period of three years from the entry of this Agreement, Meadowcrest Hospital shall submit a written report to the Office of the U.S. Attorney. The report shall describe by date and substance the steps taken to comply with the Agreement, and a summary of any problems encountered during attempts to implement the Agreement. The report shall also provide the identity of the ADA Coordinator, the precise locations in which signs have been posted regarding the availability of interpreters and TDD's, and the progress made in implementing the administration, record keeping, training, survey and community outreach requirements of paragraphs 17, 18, 20 and 21 of this Agreement. Each of these reports shall include the number, percentage and department of hospital personnel who have attended in-service training sessions, and review whether further steps are necessary to meet the communication and equipment needs of persons who are deaf at the hospital. The hospital shall make the copies of the two most recent reports available for public inspection at both the Registration and Emergency Departments.
(b) Right of Compliance Review
During the term of this Agreement, the United States may, at anytime, inspect the premises of Meadowcrest Hospital and review the hospital's compliance with the Agreement, As a part of such review, the United States may require the hospital to permit the United States to interview hospital personnel and other witnesses relating to implementation of this Agreement to determine if the hospital is complying with the provisions of this Agreement. Meadowcrest Hospital will retain during the life of this Agreement all records necessary to document the implementation of this Agreement. The hospital will also produce for the purpose of photocopying such records related to implementation of this Agreement as are requested by the United States unless such production would significantly disrupt the hospital's normal business operations. Asserted considerations of privacy or confidentiality may not operate to bar the United States from access to sources of information or to facilities where such access is authorized by law.
(c) Enforcement Penalties and Consideration
Within ten (10) days of the effective date of this Agreement, Meadowcrest Hospital will deliver a check in the amount of $5000 payable to the individual United States Attorney's Office as a civil penalty. If Meadowcrest Hospital fails to comply with this Agreement, it will subsequently be liable to the United States of America for a further civil penalty. In the absence of agreement between the hospital and the United States, the amount of any civil penalty will be determined through mediation conducted by the Key Bridge Foundation, an independent, non-profit organization (or a similar mediation service). In consideration for the terms of this Agreement, The United States agrees not to file a complaint in the United States District Court for the Eastern District of Louisiana regarding the facts as they relate to the United States' complainant. The United States reserves its right to file a civil action in the United States District Court for the Eastern District of Louisiana for any subsequent violation of the ADA, including any violation of this Agreement or any provision of the ADA that this Agreement does not address (such as barrier removal or the provision of auxiliary aids and services to persons with visual impairments).
(d) Compensatory and Injunctive Relief for United States' Complainant
Within ten (10) days of the effective date of this Agreement, Meadowcrest Hospital will deliver a check in the amount of $15,000 payable to the individual United States' Complainant. The check is compensation for alleged discrimination against the United States' Complainant who is deaf. Simultaneous with the mailing of the check, Meadowcrest Hospital will provide to the Department of Justice a copy of the check for its records.
23. Dispute Resolution and Enforcement
The United States may review compliance with this Settlement Agreement at any time and may enforce this Settlement Agreement if the United States believes that this Agreement or any portion of it has been violated. If the United States believes that this Agreement or any portion of it has been violated, it will raise its concern(s) with the Hospital and the parties will attempt to resolve the concern(s) in good faith. The United States will give the Hospital thirty days from the date it notifies the Hospital of any breach of this Agreement to cure that breach, prior to instituting court action. If the Hospital reasonably requires more than thirty days to cure a breach, it may request an extension of time from the United States, whose consent to such request will not be unreasonably withheld. Failure by the United States to enforce any provision or deadline of this Agreement shall not be construed as a waiver of its right to enforce other provisions or deadlines of this Agreement.
24. Release and Dismissal
If Meadowcrest Hospital fully performs its obligations under this Agreement it shall be deemed by the United States to have fulfilled its obligations under the ADA regarding effective communication with persons who are deaf. However, this Agreement does not purport to remedy, and shall not be construed to address, any other issues of ADA or Section 504 compliance or any other federal law other than those provisions or regulations of the ADA or Section 504 that relate to the provision of equal access to services to persons who are deaf. This Agreement does not in any way relieve Meadowcrest Hospital of its continuing responsibility to comply in the future with all aspects of the ADA, the Rehabilitation Act of 1973, as amended (Section 504) and/or any applicable Louisiana law, nor does it restrict the rights of private persons not party to this Agreement from seeking relief or remedy for violations of any law, whether in the past or future. It should be noted the terms of this Agreement have been negotiated and agreed upon among the parties with the view that compliance with the Agreement would be consistent with the requirements of the ADA and Section 504 as far as they relate to providing equal access to persons who are deaf at Meadowcrest Hospital. The parties voluntarily stipulate that any and all claims, proceedings, and causes of action for damages, penalties, attorneys' fees, interest, costs, declaratory, injunctive or other relief arising out of the above-referenced complaint that could have been asserted by the U.S. Department of Justice and gave rise to this Agreement are hereby in effect dismissed with prejudice.
25. Prohibition of Surcharges
All actions, auxiliary aids and services required by this Agreement will be provided free of charge to persons who are deaf and those individuals with whom they are associated.
26. Changing Circumstances
This Agreement shall remain in effect for three (3) years. During the three (3) years in which this Agreement will be in effect, there may be a change in circumstances such as, for example and without limitation, an increased or decreased availability of qualified interpreters or developments in technology to assist or improve communications with persons who are deaf. If Meadowcrest Hospital reasonably determines that such changing circumstances, beyond its control, require Meadowcrest to meet the needs of deaf persons in a different manner than is allowed under this Agreement, the hospital may propose changes to this Agreement by presenting written notice to the United States. If the United States does not agree with any proposed changes, the parties agree to engage in mediation with the Key Bridge Foundation (or a similar mediation service) to determine whether the proposed changes will provide for more effective communication between hospital personnel and persons who are deaf or hard of hearing. In any instance where the United States asserts a change in the Agreement is necessary to provide for effective communication, the parties agree that the Office of the United States Attorney shall have the right under the ADA after mediation and presenting written notice to Meadowcrest Hospital to file an action requesting that the District Court provide injunctive relief by making changes in this Agreement. All parties are required pursuant to paragraph 23 to negotiate in good faith prior to proposing any changes to the Court.
This Agreement shall be binding on Meadowcrest, its agents and employees. In the event that Meadowcrest seeks to transfer or assign all or a majority part of its interest in Meadowcrest and the successor or assign intends to operate Meadowcrest, as a condition of sale, Meadowcrest shall obtain the written accession of the successor or assign to any obligations remaining under this Agreement for the remaining term of this Agreement. This Agreement, however, does not preclude in any way complaint investigations, compliance reviews, or administrative action under Federal laws, including any action or investigation under Section 504 by the United States Department of Health and Human Services (DHHS) with respect to any matter presented to DHHS before or after the date of this Agreement.
Failure by any party 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.
29. Jurisdiction and Standing
The parties to this Agreement stipulate that the United States of America shall have authority to seek all appropriate relief and remedies, including immediate injunctive relief in the United States District Court for the Eastern District of Louisiana to enforce the provisions of this Agreement for three (3) years from the date hereof, after which time its provisions shall be terminated unless the United States determines that, based on findings of non-compliance, it is necessary to extend any of its requirements, in which case those requirements may be extended subject to the requirements of equity. The parties to this Agreement and no one else shall have standing to seek enforcement of this Agreement.
In the event that the United States District Court for the Eastern District of Louisiana shall determine that any provision of this Agreement is unenforceable, such provision shall be severed from this Agreement and all other provisions shall remain valid and enforceable, provided, however, that if the severance of any such provision shall materially alter the rights or obligations of the parties hereunder, they shall, through reasonable, good faith negotiations, agree upon such other amendments hereto as may be necessary to restore the parties as closely as possible to the relative rights and obligations initially intended by them hereunder.
This Settlement Agreement embodies in full the terms of the agreement and understanding between the parties related to the subject matter of this enforcement action or this Agreement. No other statement, promise, or agreement, either written or oral, made by any parties of agents of any party, that is not contained in this written Agreement, including any attachments, shall be enforceable. The Settlement Agreement contains a public agreement and a copy of the Agreement, or any information concerning its contents, may be made available to any person.
32. Reports and Deadlines
Reports and notices of any kind required or contemplated under this Agreement shall be made by mailing the same via U.S. Postal Service, certified mail, return receipt requested, and notices shall be deemed given on the date of receipt of the same. Deadlines listed in this Agreement which fall on weekends or holidays will be extended to the next business day. The effective date of the Agreement is the date of the last signature below. Signors of this Agreement on behalf of the parties represent that they are authorized to bind those parties to this Agreement. The parties agree that this Agreement may be signed in counter part, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned AGREE and CONSENT to the form, content, and execution of the foregoing Settlement Agreement:
For United States of America:
UNITED STATES ATTORNEY
GLENN K . SCHREIBER
Assistant United States Attorney
Hale Boggs Federal Building
501 Poydras Street, Rm. B-2 10
New Orleans, Louisiana 70 130
504-680-3 185 (TTY)
For Meadowcrest Hospital:
EDWARD M. O'BRYAN
Chief Executive Officer
2500 Belle Chasse Hwy.
Gretna, Louisiana 70056
504-39 1-5 128 (voice)
504-391-5 155 (TTY)
May 16, 2007