A. For purposes of this Agreement, the term “1991 Standards” shall mean the requirements set forth in the ADA Standards for Accessible Design, originally published on July 26, 1991, and republished as Appendix D to 28 C.F.R. part 36, 28 C.F.R. § 36.104.
B. For purposes of this Agreement, the term “2010 Standards” shall mean the 2010 ADA Standards for Accessible Design, which consist of the 2004 ADAAG, appendices B and D to 36 C.F.R. part 1191, and the requirements contained in subpart D of 28 C.F.R. part 36, 28 C.F.R. §36.104.
C. Because this investigation was commenced and completed by the United States under the ADA using the 1991 Standards, before the 2010 Standards took effect, and because the parties had reached an agreement in principle before the 2010 Standards took effect, the parties agree for the purposes of this Agreement that the 1991 Standards shall apply except where specifically noted.
1. This action was initiated by a complaint filed with the United States against Monadnock Community Hospital (the “Hospital”). The complaint was investigated by the Department of Justice through the United States Attorney’s Office for the District of New Hampshire (“the United States”) under the authority granted by section 308(b) of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12188.
2. The Hospital is a critical access hospital located at 452 Old Street Road, Peterborough, New Hampshire.
3. The complainant in this matter, Amy Dauphinais, f/k/a Amy LaPorte, is an individual with a disability within the meaning of the ADA, 42 U.S.C. § 12102(1) and its implementing regulation at 28 C.F.R. Part 36. Amy Dauphinais is deaf.
4. The Hospital is a “public accommodation” as defined in 42 U.S.C. § 12181(7)(F) and its implementing regulation, 28 C.F.R. § 36.104 because it is a private entity that operates a place of public accommodation, specifically, a hospital.
5. The ADA prohibits public accommodations, including hospitals, from discriminating on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations. 42 U.S.C. § 12182(a); 28 C.F.R. §36.201(a).
6. The complainant alleges that the Hospital discriminated against her by failing to provide her with the full and equal enjoyment of the Hospital’s goods, services, facilities, privileges, advantages or accommodations and by failing to provide appropriate auxiliary aids and services when necessary for effective communication. Amy Dauphinais is deaf and uses American Sign Language as her primary means of communication. The complainant alleges that she was unable to communicate adequately with Hospital Personnel while she was receiving medical treatment at the Hospital on September 5, 2010, because she was not provided with a sign language interpreter, she was required to use inadequate or inappropriate auxiliary aids, and she was required to use her minor daughter to interpret for her.
7. The United States has conducted an investigation of the complainant’s allegations. The Hospital has cooperated in that investigation. As a result of the investigation, the United States takes the position that the Hospital violated title III of the ADA and its implementing regulation by discriminating against the complainant.
8. The Hospital disputes the complainant’s factual allegations and the claim that it discriminated against the complainant and expressly denies any liability. Without conceding the allegations of the United States or the complainant, or the possible defenses of the Hospital, all parties agree that it is in their best interests to resolve this matter promptly and without protracted litigation. This Settlement Agreement shall not be construed as an admission of either liability or any of complainant’s factual allegations by the Hospital. In consideration of the terms of this Settlement Agreement, the United States agrees to refrain from undertaking further investigation or from filing a civil suit in this action, except as provided in paragraphs 85 and 86.
9. The parties hereby agree to the following:
10. The term “Auxiliary Aids and Services” includes, but is not limited to: qualified interpreters on-site or through video remote interpreting (VRI) services; oral, relay or tactile interpreters; note-takers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices and 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 (TTY’s), 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. See 28 C.F.R. § 36.303.
11. The term “Companion” means 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).
12. The term “deaf” shall refer to persons who are deaf, late-deafened or hard-of-hearing. The term “hard-of-hearing” includes persons who have a hearing deficit and who may or may not primarily use visual aids for communication and may or may not use auxiliary aids.
13. The term “Effective Date of this Settlement Agreement” means the date of the last signature on this Settlement Agreement.
14. The term “Hospital Personnel” shall mean: all employees and independent contractors with contracts to work on a substantially full-time basis for the Hospital (or on a part-time basis for the Hospital), including, without limitation, nurses, physicians, social workers, technicians, admitting personnel, receptionists, telephone operators, billing staff, security staff, therapists, and all volunteers, who have or who are likely to have direct contact with Patients or Companions. The term also includes all affiliated physicians or other health care professionals who have medical staff privileges that permit them to see and/or treat Patients at the Hospital.
15. The term “in-service” shall include, without limitation, such means of training or familiarization of Hospital Personnel as are customarily used by the Hospital including, without limitation, written policies and procedures, videotapes, training materials, training sessions, seminars, conferences, and the like.
16. The term “Parties” shall mean: the Hospital and the United States, acting by and through the Department of Justice and the United States Attorney’s Office for the District of New Hampshire.
17. The term “Patient” shall be broadly construed to include any deaf or hard-of-hearing individual (or individual accompanied by a deaf or hard-of-hearing Companion) who is seeking or receiving health care services, including mental health services, from the Hospital (whether on an inpatient or outpatient basis), as well as deaf or hard-of-hearing individuals seeking to use any other goods or services provided by the Hospital, such as the opportunity to donate blood or attend health education classes. The broad construction of this term also includes (but is not limited to) deaf or hard-of-hearing individuals seeking to communicate with representatives of the Hospital regarding past, present or future health care services, such as scheduling appointments, obtaining test results, and discussing billing issues.
18. The term “qualified note-taker” shall mean: one who is able to take notes effectively and accurately, using any necessary specialized vocabulary and terminology.
19. The terms “qualified sign language interpreter,” “oral interpreter,” or “interpreter” shall mean: an interpreter who is able to interpret competently, accurately, and impartially, both receptively and expressively, using any specialized terminology necessary for effective communication in a hospital setting to a Patient or a Companion who is deaf or hard-of-hearing, given that individual’s language skills and history. Not all interpreters are qualified for all situations. For example, an interpreter who is qualified to interpret using American Sign Language is not necessarily qualified to interpret orally. Someone who has only a rudimentary familiarity with sign language or finger spelling is not a “qualified sign language interpreter” under this Settlement Agreement. Likewise, someone who is fluent in sign language but who does not possess the ability to process spoken communication into the proper signs or to observe someone else signing and change his or her signed or finger-spelled communication into spoken words is not a qualified sign language interpreter. 28 C.F.R. § 36.104.
20. The term “Standards” shall mean: the 1991 ADA Standards for Accessible Design, as set forth at 28 C.F.R. Part 36, Appendix D.
21. The term “TTY’s” or “TDD’s” shall mean: devices that are used with a telephone to communicate with persons who are deaf or hard-of-hearing by typing and reading communications.
21.1. The term “Scheduled Incidents” shall mean situations in which there are two (2) or more hours between the time when a Patient or Companion makes a request for an interpreter and when the services are required between 8:00 a.m. and 8:00 p.m. on weekdays. With respect to services required during evenings (between 8:00 p.m. and 8:00 a.m.), weekends, and holidays, the term shall mean situations in which there are four (4) or more hours between the time when a Patient or Companion makes a request and the time when the services are required.
21.2. The term “Non-scheduled Interpreter Requests” shall mean situations in which there are less than two (2) hours between the time when a Patient or Companion makes a request for an interpreter and when the services are required between 8:00 a.m. and 8:00 p.m. on weekdays. With respect to services required during evenings (between 8:00 p.m. and 8:00 a.m.), weekends, and holidays, the term shall mean situations in which there are less than four (4) hours between the time when a Patient or Companion makes a request and the time when services are required.
22. Non-Discrimination. The Hospital will provide appropriate Auxiliary Aids and Services, including qualified sign language interpreters, where such aids and services are necessary to ensure effective communication with Patients and Companions, as required by the ADA. Pursuant to 42 U.S.C. § 12182(a), the Hospital will also provide Patients and Companions with the full and equal enjoyment of the services, privileges, facilities, advantages, and accommodations of the Hospital as required by this Settlement Agreement and the ADA. The Hospital shall not deny its services to anyone based on the fact that the person is deaf or hard-of-hearing or is associated with someone known to be deaf or hard-of-hearing, as required by the ADA.
23. Appropriate Auxiliary Aids and Services. Consistent with 42 U.S.C. §12182(b)(2)(A)(iii), the Hospital will provide to Patients and Companions any appropriate Auxiliary Aids and Services that may be necessary for effective communication after making the determination described in paragraph 28 of this Settlement Agreement. Appropriate Auxiliary Aids and Services will be provided as soon as practicable, except that the provision of qualified interpreters must be within the time frame described in paragraphs 44 and 45 of this Settlement Agreement.
24. Establishment of Program to Provide Appropriate Auxiliary Aids and Services. Within 120 days of the Effective Date of this Settlement Agreement, the Hospital will design and institute a program to implement the provisions of this Settlement Agreement, including without limitation:
26. Program Administrators. Simultaneously with the establishment of the program, the Hospital shall designate two or more positions (“Program Administrators”), who shall be 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 appropriate Auxiliary Aids and Services required by this Settlement Agreement, including providing qualified interpreters within the time frames set forth in this Settlement Agreement. Such Program Administrators shall know where the appropriate Auxiliary Aids are stored and how to operate them and will have and exercise authority to require their maintenance, repair, replacement, and distribution. The Hospital will circulate broadly within the Hospital the names, telephone numbers, functions, and office locations of such Program Administrators, including a TTY telephone number that may be called by Patients and Companions in order to obtain the assistance of such Program Administrators. Program Administrators will respond to routine telephone inquiries about the program during normal business hours and maintain a recording system for routine inquiries received after normal business hours. The Program Administrators will be responsible for the complaint resolution mechanism described in paragraph 38 of this Settlement Agreement. The Program Administrators will be designated by the Hospital no later than 30 days following the Effective Date of this Settlement Agreement. Nothing in this Settlement Agreement shall prohibit the Hospital from including the responsibility of the Program Administrators in the job descriptions of positions that have other duties and responsibilities.
27. Review of New and Modified Policies. The Hospital shall submit copies of all policies and procedures that are created or modified in order to comply with this Settlement Agreement for review and approval to the United States prior to the implementation of such policies and/or procedures. The United States will make its best efforts to review the proposed policies and procedures within thirty (30) days of receipt. The Hospital will adjust these proposed policies and procedures to reflect any reasonable comments or concerns identified by the United States. The United States will not unreasonably withhold its approval of proposed policies and procedures. To the extent the United States fails to complete its review within thirty days, any deadline on a Hospital obligation related to any policy or procedure that is not reviewed within thirty days shall be automatically extended by the number of days in excess of 30 days taken by the United States to complete its review. The United States has reviewed and approved the Hospital’s policy for Interpreter Services for the Hearing and/or Visually Impaired, dated 02/2012.
28. General Determination Criteria. The determination of which appropriate Auxiliary Aids and Services are necessary, and the timing, duration, and frequency with which they will be provided, will be made by the Hospital Personnel who are otherwise primarily responsible for coordinating and/or providing patient care services. This determination will be made in consultation with the Patient or Companion, wherever possible, to determine what type of auxiliary aids or services are needed to ensure effective communication. The Hospital will develop a form for conducting this determination no later than thirty (30) days following the Effective Date of this Settlement Agreement. The determination made by Hospital Personnel will take into account all relevant facts and circumstances, including without limitation the following:
29. Timing of Determination. The initial determination will be made at the earliest of the following: (1) the time an appointment is scheduled, provided that the Patient or Companion communicates the need for auxiliary aids or services; (2) the time the Hospital becomes aware that a Patient or Companion who may require auxiliary aids or service is en route to the Hospital; or (3) the time the Patient or Companion initially comes in contact with Hospital Personnel. Hospital Personnel will perform and document a communication determination as part of each initial Patient assessment. Completion of communication determinations, including copies of any determination form used, will be documented in the Patient’s medical record. In all instances where Hospital Personnel become aware that a Patient or Companion is en route to the Emergency Department (by ambulance or otherwise), Hospital Personnel will make reasonable efforts to conduct a determination in advance of the Patient or Companion’s arrival and seek to have appropriate Auxiliary Aids and Services available as soon as practicable after the Patient or Companion’s arrival at the Hospital.
30. Redetermination. The Hospital shall reassess its determination of which appropriate Auxiliary Aids and Services are necessary, in consultation with the Patient or Companion, when a Patient or Companion indicates that communication has not been effective. The Hospital will document any instances where Patients or Companions indicate that the auxiliary aids and services provided by the Hospital failed to provide effective communication. The Hospital will document any redetermination and the results of any redeterminations.
31. Subsequent Patient Visits. The Hospital shall implement policies and procedures to expedite arrangements for the provision of appropriate Auxiliary Aids and Services when a Patient or Companion requests appropriate Auxiliary Aids and Services for subsequent visits to the Hospital. Hospital Personnel shall keep appropriate records that reflect the provision of auxiliary aids and services to Patients and Companions, such as notations in Patients’ medical charts. Such records should document whether or not any particular auxiliary aids and services (or individual interpreters) provided effective communication. During a Patient or Companion’s subsequent visit, Hospital Personnel shall reference the Patient’s prior medical records, where available, as part of the Communication Determination required by paragraph 28.
32. Medical Concerns. Nothing in this Settlement Agreement will require that an electronic device or equipment constituting an appropriate auxiliary aid be used when or where its use may interfere with medical or monitoring equipment or may otherwise constitute a threat to the Patient’s medical condition. Similarly, nothing in this Settlement Agreement shall be construed to require the Hospital or Hospital Personnel to take any action or inaction that would jeopardize the safety of any person or compromise the quality of any person’s medical care, or jeopardize the health of an Interpreter.
33. Determination Not to Provide Auxiliary Aid or Service. If, after conducting a determination, the Hospital determines that the circumstances do not warrant provision of a particular Auxiliary Aid or Service, Hospital Personnel will so advise the person requesting the Auxiliary Aid or Service and will document the date and time of the denial, the name and title of the Hospital personnel making the determination, and the basis for the determination. A copy of this documentation will be provided to the Patient (and Companion, if applicable); will be maintained with the Auxiliary Aid and Service Log described in paragraph 36 of this Settlement Agreement; and will be placed in the Patient’s medical chart. Any determination to provide an alternative Auxiliary Aid or Service when a Patient or Companion has requested an on-site interpreter also will be documented. It is understood that, even if the Hospital determines that a particular Auxiliary Aid or Service is not to be provided, some means of effective communication must be secured.
34. Prohibition of Surcharges for Patients or Companions. All appropriate Auxiliary Aids and Services required by this Settlement Agreement will be provided free of charge to the Patient and/or Companion.
35. Individual Notice in Absence of Request. If a Patient and/or Companion does not request appropriate Auxiliary Aids or Services, but Hospital Personnel have reason to believe, after conducting the determination described in paragraph 28 of this Settlement Agreement, that such person would benefit from appropriate Auxiliary Aids and Services for effective communication, the Hospital will specifically inform the Patient and/or Companion that appropriate Auxiliary Aids and Services are available free of charge.
36. Auxiliary Aid and Service Log. The Hospital will maintain a log of: (a) each request for an appropriate Auxiliary Aid and Service; (b) the type of auxiliary aid or service requested; (c) the time and date the request is made; (d) the name of the Patient (and Companion, if applicable); (e) the time and date of the scheduled appointment (if a scheduled appointment was made); (f) the name of the Hospital Personnel who performed any communication determination or redetermination; (g) the name of any Hospital Personnel responsible for determining whether or not to provide the requested appropriate Auxiliary Aid or Service; (h)the nature of the auxiliary aid or service provided; (i) the time and date the appropriate Auxiliary Aid and Service was provided, or a statement that the appropriate Auxiliary Aid and Service was not provided and the reason why the aid or service was not provided. Such logs will be maintained by the Program Administrators for the entire duration of the Settlement Agreement, and will be incorporated into the semi-annual Compliance Reports, as allowed by state and federal law, as described in paragraph 78 of this Settlement Agreement.
37. Communication with Patients and Companions. The Hospital will take appropriate steps to ensure that all Hospital Personnel having contact with a Patient or a Companion are made aware of such person’s need for an appropriate Auxiliary Aid and Service so that effective communication with such person will be achieved. In addition, the Hospital will take appropriate steps to ensure that all Hospital Personnel having contact with a Patient or Companion are aware of: (a) the Hospital’s policies and procedures implementing this Settlement Agreement and the ADA; (b) the Hospital’s policies and procedures governing requests for appropriate Auxiliary Aids and Services by Patients and Companions; and (c) the role of the Program Administrators described in paragraph 26 of this Settlement Agreement.
38. Complaint Resolution. The Hospital will maintain an effective complaint mechanism for the resolution of disputes regarding effective communications with Patients and Companions. The Hospital will maintain records of all complaints regarding effective communication, whether written or oral, made to the Hospital and actions taken with respect thereto. The Hospital will notify Patients and Companions of its complaint resolution mechanism, to whom complaints should be made, and of the right to receive a written response to the complaint. Within thirty (30) days of receipt of the complaint, the Hospital shall provide a written response to the complaint and shall provide a copy of the complaint and the response to the United States. Copies of all complaints or notes reflecting oral complaints concerning the need for or use of appropriate Auxiliary Aids and Services and the responses thereto will be maintained by the Program Administrators for the entire duration of the Settlement Agreement.
39. Circumstances Under Which Interpreters Will Be Provided. The Hospital shall provide qualified sign language interpreters to Patients and Companions 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. Under circumstances where a qualified on-site interpreter is not reasonably available, the provision of alternative Auxiliary Aids or Services may be sufficient to provide effective communication in some circumstances. The determination of when such interpreters shall be provided to Patients or Companions shall be made as set forth in paragraphs 28 through 30 above. The following are examples of circumstance when it may be necessary to provide interpreters when the Hospital has knowledge or a reasonable expectation that a Patient or Companion may participate:
40. The foregoing list of circumstances is neither exhaustive nor mandatory, and shall not imply that there are not other circumstances when it may be appropriate to provide interpreters for effective communication or that an interpreter must always be provided in these circumstances.
41. Contract for Obtaining Interpreters. Within sixty (60) days of the effective date of this Settlement Agreement, the Hospital shall provide to the United States a signed copy of a contract into which it has entered with one or more reputable interpreter(s) and/or interpreter agency(ies) to provide qualified interpreters at the request of the Hospital. Each such contract will, at a minimum, require the interpreter or agency to use good faith efforts to maintain a response time of one (1) hour or less (plus travel time) in at least eighty percent (80%) of non-scheduled incidents within any six (6) month period, measured from the time the call is placed to the interpreter or agency.
42. Free-Lance Interpreters. Within sixty (60) days of the Effective Date of this Settlement Agreement, the Hospital will compile and maintain as current a list of all known free-lance sign language and oral interpreters who reside within forty-five (45) miles of the Hospital.
43. Staff Interpreters. The Hospital may, but shall have no obligation to, satisfy its obligations under this Settlement Agreement by hiring or otherwise contracting with qualified staff interpreters. Staff interpreters must meet the definition of “qualified interpreters.” Patients and Companions who are provided with staff interpreters must have the same level of coverage(for both duration and frequency) as the Hospital is otherwise obligated to provide under this Settlement Agreement. The Hospital may assign other duties to staff interpreters. To the extent that the Hospital does not have staff interpreters or a staff interpreter is not available when needed, the Hospital will follow the procedures set forth elsewhere in this Settlement Agreement to obtain the services of qualified interpreters.
44. Scheduled Incidents. For Scheduled Incidents, where an on-site interpreter is necessary to ensure effective communication, the Hospital will make a qualified interpreter available at the time of the scheduled appointment (including situations identified in paragraph 51 in which Alternative Auxiliary Aids or Services are not effective). If an interpreter fails to arrive for the Scheduled Incident, the Hospital will immediately call the interpreter service for another qualified sign language interpreter upon notice that the interpreter failed to arrive. Similarly, when making a qualified interpreter available, Hospital Personnel shall clearly identify the interpreter’s availability and make immediate efforts to locate a replacement interpreter if it appears that the original interpreter will not be able to stay throughout the Scheduled Incident.
45. Non-scheduled Interpreter Requests; Time Standards. After receiving a Non-scheduled Interpreter Request, and determining in accordance with paragraph 28 that a live interpreter is necessary, the Hospital shall make an interpreter available as soon as practicable. Hospital Personnel will make the Hospital’s request for an interpreter within fifteen (15) minutes after completing a determination described in paragraph 28, above, that determines that an on-site interpreter is necessary. Hospital Personnel will also make such a request within fifteen (15) minutes of any situation identified in paragraph 51 where Alternative Auxiliary Aids or Services are not effective. The Hospital will meet the following overall time standards for providing qualified sign language interpreters to Patients and/or Companions. The Hospital will maintain a response time of one (1) hour (plus travel time) in eighty percent (80%) of non-scheduled interpreter requests within any six (6) month period. Whether this standard is met will be measured beginning (15) minutes after it is determined that an interpreter is required. In no event will the Hospital’s response time exceed three (3) hours, except when the Hospital has been unable to obtain the services of an on-site interpreter after a prompt, diligent effort to comply with all of the requirements of this Settlement Agreement.
46. Specific Steps for Non-scheduled Interpreter Requests. Within fifteen (15) minutes after completing a determination (as described in paragraph 28) that determines that an on-site interpreter is required, Hospital Personnel will request an interpreter (qualified to interpret for the specific individual who will be using the services) from the interpreters or agencies with whom the Hospital has an ongoing contract for qualified interpreter services. If no interpreter can be located, Hospital Personnel will take the following additional steps:
47. Provision of Qualified Interpreters Throughout a Hospitalization. The Hospital will develop a policy and implement procedures to ensure that once a Patient has been admitted to the Hospital and the determination described in paragraph 28 of this Settlement Agreement has determined that a qualified sign language interpreter is necessary to achieve effective communication during the hospitalization of the Patient, qualified interpreters are made available at all events requiring substantial communication between the Patient and the Hospital Personnel. It is highly likely that such events will include post-surgical sessions, doctor rounds, discharge meetings, and other physician-Patient meetings, as well as for the performance of any tests, procedures or therapy. A Patient will not be required to renew requests for a qualified interpreter for these events. In the case of Companions, the Hospital will provide a qualified interpreter for any event that the Companion will attend provided that the Hospital Personnel are advised in a reasonably timely fashion that the Companion will be present at the event. The Hospital will provide notice to all Patients and Companions of this policy.
48. Data Collection on Interpreter Response Time and Effectiveness: Feedback Forms. The Hospital will monitor the performance of each qualified sign language interpreter it uses to provide communication to Patients or Companions. As part of the Auxiliary Aid and Service Log, described in paragraph 36 of this Settlement Agreement, the Hospital shall collect information regarding response times for each request for an interpreter. The Hospital shall also prepare a form or add a specific inquiry to its standard patient satisfaction survey form requesting feedback concerning the timeliness and effectiveness of interpreter services. This feedback form or survey shall be provided to each Patient or Companion who requests an interpreter or receives the services of an interpreter. The Hospital shall use the feedback forms for monitoring and evaluating the performance of each interpreter it provides to Patients and Companions. The Program Administrators shall maintain the completed feedback forms for the term of this Settlement Agreement.
49. Video Remote Interpreting Services. Video remote interpreting (VRI) services can provide immediate, effective access to interpreting services seven days per week, twenty-four hours a day in a variety of situations including scheduled incidents, emergencies, and unplanned incidents, and can also be used as a stop-gap measure until a qualified interpreter is available. Nothing in this Agreement or the ADA requires the Hospital to acquire or offer this specific Auxiliary Aid or Service. If the Hospital elects in its discretion to acquire and offer VRI, the Hospital shall ensure that it provides VRI in accordance with the Standard set out in 28 C.F.R. § 36.303(f), including:
50. If the Hospital elects to acquire and offer VRI, it shall ensure that its staff is trained and able to operate and connect the VRI quickly and efficiently and that the services are available at the Hospital at all times as set out in the standards above. The Hospital should connect the service within fifteen (15) minutes of a determination. Moreover, the Hospital shall train staff regarding the limitations of the technology, particularly with respect to: (a) Patients who have limited ability to move their heads, hands, or arms; vision problems, cognitive or consciousness issues; or pain issues; (b) Patients who may be moved repeatedly to areas of the Hospital that do not have a designated high speed Internet line; and (c) Patients who will be treated in rooms where space considerations militate against using the service. Once the system is operating, Hospital Personnel shall ask the Patient or Companion whether the VRI is meeting his or her communication needs and make a record of his or her response.
51. In the event that the Patient or Companion indicates that he/she is unable to communicate effectively using any video interpreting service the Hospital elects to acquire and offer, the Hospital Personnel will: (a) document the concern; (b) make all reasonable efforts to locate a qualified sign language interpreter or other auxiliary aid or service that will provide effective communication; (c) document all such efforts; and (d) periodically inform the Patient/Companion of the status of those efforts.
52. Force Majeure. The foregoing response times are subject to “force majeure” events – i.e., any response time that is delayed because of a force majeure event is excluded from the determination whether the prescribed response criteria have been met. Force majeure events are events outside the reasonable control of the Hospital, the interpreter service provider or the interpreter called to respond, such as weather problems and other Acts of God, unanticipated illness or injury of the interpreter while en route to the Hospital, unanticipated Internet or telephone problems, and unanticipated transportation problems (including, without limitation, mechanical failure of the interpreter’s automobile, automobile accidents and roadway obstructions, other than routine traffic or congestion).
53. Modification of Performance Standards. In the event that the response time standards described in paragraphs 44 and 45 of this Settlement Agreement cannot be maintained despite the Hospital’s good faith efforts, the Hospital is entitled to request the consent of the United States to such modifications of the response time standards as may be reasonable under the circumstances. The United States will consider any such request reasonably and in good faith and will not deny its approval unreasonably. Any such modification to which the parties agree will be deemed an amendment to this Settlement Agreement.
54. Notice to Patients and Companions. As soon as Hospital Personnel have determined that an interpreter is necessary for effective communication with a Patient or a Companion, and one hour later, the Hospital will inform such person (or a family member or friend, if such person is not available) of the current status of efforts being taken to secure the appropriate Auxiliary Aids and Services on his or her behalf. Additional updates shall be provided thereafter as necessary until such aids and services are secured. Notification of efforts to secure a qualified interpreter does not diminish the Hospital’s obligation to provide qualified interpreters in a timely manner as required by paragraphs 44 and 45 of this Settlement Agreement.
55. Other Means of Communication. The Hospital agrees that between the time an interpreter is requested and when an interpreter arrives, Hospital Personnel will continue to try to communicate with the Patient or Companion for such purposes as they would have communicated with the person but for the hearing impairment, using all available methods of communication. Such means of communication may include, but are not limited to, video interpreting services, written notes or sign language pictographs. This provision in no way lessens the Hospital’s obligation to provide qualified interpreters in a timely manner as required by this Settlement Agreement. Once an interpreter arrives, the Hospital Personnel will ensure that the Patient or Companion has a reasonable understanding of the care already provided and the current treatment plan.
56. Restricted Use of Certain Persons to Facilitate Communication. Due to confidentiality, potential emotional involvement, and other factors that may adversely affect the ability to facilitate communication, the Hospital shall never require or coerce a family member, companion, case manager, advocate, or friend of a Patient or Companion who is deaf or hard-of-hearing to interpret or facilitate communications between Hospital Personnel and such Patient or Companion. In any case, such person shall be used to interpret or facilitate communication only if the Patient or Companion who is deaf or hard-of-hearing does not object, if such person wishes to provide such assistance, and if such use is necessary or appropriate under the circumstances, giving appropriate consideration to any privacy issues that may arise. See 28 C.F.R. 36.303(c). A Patient or Companion’s waiver of a qualified sign language interpreter under this provision must be made in the Patient’s chart or records. This provision in no way lessens the Hospital’s obligation to provide appropriate Auxiliary Aids and Services as required under this Settlement Agreement.
57. Public Telephones. As soon as practicable but no later than sixty (60) days after the Effective Date of this Settlement Agreement, the Hospital will provide the following:
58. Telephones in Patient Rooms. Within sixty (60) days of the Effective Date of this Settlement Agreement:
59. Televisions and Caption Decoders. The Hospital has in each patient room, and will maintain, a television with closed captioning capabilities.
60. Clearly stated directions for the 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.
61. Duty to Provide Visual Programs in a Manner That is Accessible to Persons With Hearing Impairments.
62. Client Education. The Hospital shall ensure that each Patient and Companion who is provided with portable access technology is appropriately directed as to the proper use of such equipment.
63. Acquisition of Additional Equipment. In addition to the equipment required above, the Hospital shall purchase and/or rent such additional equipment as is reasonably needed to replace defective units as soon as practicable. The Hospital shall also monitor developments in technology and shall upgrade such equipment when and if it deems it reasonable and appropriate to do so.
64. Policy Statement. Within thirty (30) days of the Effective Date of this Settlement Agreement, the Hospital shall add the following statement to the signs it has posted throughout the emergency room and admitting areas notifying persons with difficulty hearing or speaking to ask a staff member for help: Sign language and oral interpreters, TTY’s, assistive listening devices, and/or other auxiliary aids and services are available free of charge to Patients and Companions who need them for effective communication. For assistance, please contact any Hospital personnel or the program office at _______________ (voice/TTY), room ___________. International signs for accessibility, including the international symbols for “interpreters” and “TTY’s,” will be posted near the policy. This statement also shall be placed in a prominent location on the Hospital’s website.
65. Advertisements. Within sixty (60) days of the Effective Date of this Settlement Agreement, the Hospital will take appropriate steps to publicize in the community the Hospital’s commitment to provide all of its services to Patients and Companions. Such publicity shall be deemed satisfied by the purchase of reasonable advertising space at least twice in newspapers of general circulation serving the same community as is served by the Hospital, which advertisements will include a statement that, consistent with federal law, all Appropriate Auxiliary Aids and Services, including qualified sign language interpreters, TTY’s, and assistive listening devices, will be provided free of charge upon request, and include appropriate instructions regarding access to the program office at the Hospital. The Hospital shall post this statement on its website within sixty (60) days of the Effective Date of this Settlement Agreement. Annually thereafter, the Hospital shall take reasonable steps to publicize the existence of the program to the deaf and hard-of-hearing community.
66. Patient Guide. The Hospital will include in all future printings of its Patient Guide (or equivalent) and all similar publications a statement to the following effect: “To ensure effective communication with Patients and their companions who are deaf or hard-of-hearing or who have speech impairments, consistent with federal law, we provide appropriate auxiliary aids and services free of charge, such as: sign language and oral interpreters, TTY’s, note-takers, written materials, telephone handset amplifiers, and telephones compatible with hearing aids,. Please ask your nurse or other Hospital Personnel for assistance, or contact the program office at _______________ (voice or TTY), room ___________.” The Patient Guide shall also include a description of the Hospital’s complaint resolution mechanism. The Hospital shall provide all Patients or Companions who come into contact with Hospital Personnel at the Emergency Department with a copy of this Guide as soon as practicable after their arrival at the Emergency Department. The information required by this paragraph shall be included on the Hospital’s website within sixty (60) days of the Effective Date of this Settlement Agreement.
67. Information Made Available in ASL. Within 120 days of the Effective Date of this Settlement Agreement, the Hospital will make the following information available in American Sign Language (ASL) using videotape, DVD, or CD-ROM format:
Alternatively, the Hospital can comply with this provision by offering to have this information interpreted into ASL by a qualified interpreter or via a video interpreting service, provided that this is documented in the Patient’s medical records.
68. The Hospital shall publish, in an appropriate form, a written policy statement regarding the Hospital’s policy for effective communication with Patients or Companions for use by persons working at the Hospital. This policy statement shall include, but is not limited to, language to the following effect:
If you recognize or have any reason to believe that a patient, relative, close friend
or companion of a patient is deaf or hard-of-hearing, you must advise the person
that appropriate auxiliary aids and services, such as sign language and oral
interpreters, TTY’s, note takes, written materials, telephone handset amplifiers,
telephones compatible with hearing aids, and a television with captioning or
closed caption decoders, will be provided free of charge if such aids or services
are necessary to ensure effective communication. 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
Program Administrator at ____________ and reachable at ______________.
This offer and advice must likewise be made in response to any overt request for appropriate auxiliary aids or services.
The Hospital will distribute this document within sixty (60) days of the Effective Date of this Settlement Agreement to all Hospital Personnel and both employed and affiliated physicians (physicians with practicing or admitting privileges), and to all new Hospital Personnel (including newly employed or affiliated physicians) upon their affiliation or employment with the Hospital. In addition, this statement will also be distributed to all Hospital Personnel (including all employed and affiliated physicians) on an annual basis.
69. Training of Program Administrators. The Hospital will provide special mandatory training for the Program Administrator(s) within sixty (60) days of designation as provided in paragraph 26 of this Settlement Agreement. Such training will be sufficient in duration and content to train the Program Administrators in:
70. Training of Emergency Department Personnel. The Hospital will provide special mandatory in-service training to Hospital Personnel who have Patient responsibility and who work or volunteer in the Emergency Department. The training will address the special needs of Patients and Companions and will include the following objectives:
Such training must be provided no later than ninety (90) days after the Effective Date of this Settlement Agreement and will be conducted annually thereafter.
71. Training of Physicians. The Hospital will provide specialized mandatory in-service training to all physicians who are members of the Hospital’s active medical staff and who do not receive the training discussed in paragraph 70. This training will include the following objectives:
Such training must be offered no later than one hundred twenty (120) days after the Effective Date of this Settlement Agreement and will be conducted annually thereafter.
72. Training of Psychiatric Personnel and Social Workers. The Hospital will provide specialized mandatory in-service training to Hospital Personnel with Patient responsibility who work in the Department of Psychiatry (or its equivalent) or are members of the Social Work Department (or its equivalent). This training will include the following objectives:
Such training must be provided no later than one hundred twenty (120) days after the Effective Date of this Settlement Agreement and will be conducted annually thereafter.
73. Training of Telephone Operators. All Hospital Personnel who receive incoming telephone calls from the public will receive special instructions on using TTY’s or relay services to make, receive and transfer telephone calls, and will receive training generally on the existence in the Hospital of Program Administrators, as detailed in paragraph 26 of this Settlement Agreement, and the complaint resolution process, as described in paragraph 38 of this Settlement Agreement. Such training must be provided no later than ninety (90) days after the Effective Date of this Settlement Agreement and will be conducted annually thereafter.
74. Training of Other Key Personnel. The Hospital will also provide special ADA training to the following Hospital Personnel not otherwise trained as provided above: all clinical directors and nursing supervisors; personnel who staff the admissions desk (or its equivalent for in-patient registration), a central registry desk (or its equivalent for out-patient registration), and/or a general information desk; all triage nurses and other triage professionals; and heads of each department in which communication with Patients and Companions occurs. Hospital Personnel responsible for billing and insurance issues who routinely interact with Patients and Companions will receive special training on the availability of Appropriate Auxiliary Aids and Services and the existence in the Hospital of Program Administrators, as described in paragraph 26 of this Settlement Agreement. Such training must be provided no later than one hundred twenty (120) days after the Effective Date of this Settlement Agreement and will be conducted annually thereafter.
75. Training of New Employees. The Hospital will provide the training specified above to new Hospital Personnel within thirty (30) days after the commencement of their services for the Hospital. Such training must be comparable to training provided to specific departments as necessary. A screening of a video of the original training will suffice to meet this obligation.
76. Training Attendance Sheets. The Hospital will maintain, for the duration of this Settlement Agreement, attendance sheets of all training conducted pursuant to paragraphs 69-75 of this Settlement Agreement, which will include the names and respective job titles of the attendees, as well as the date, time, and location of the training session. Although all of the training described in paragraphs 69-75 should be conducted live whenever possible, the Hospital may satisfy the training requirement for individuals who are unable to attend live training sessions by showing a video of the original training.
77. Patient Feedback. The Hospital will develop a form or add a specific inquiry to its standard patient satisfaction survey to collect feedback from Patients and Companions regarding the provision of auxiliary aids and services. Such a form or inquiry will assess Patient and Companion satisfaction with the quality of the Auxiliary Aids and Services provided, the effectiveness of communication with Hospital Personnel, and response times.
78. Compliance Reports. Beginning three months after the Effective Date of this Settlement Agreement and every six months thereafter for the entire duration of the Settlement Agreement, the Hospital will provide a written report (“Compliance Report”) to the U.S. Attorney’s Office regarding the status of its compliance with this Settlement Agreement. The Compliance Report will include data relevant to the Settlement Agreement, including, but not limited to:
The Hospital will maintain appropriate records to document the information contained in the Compliance Reports and will make them available, upon request, to the U.S. Attorney’s Office, as allowed by state and federal law.
79. Complaints. During the Term of this Settlement Agreement, the Hospital will notify the U.S. Attorney’s Office if any person commences a lawsuit, complaint, charge, or grievance alleging that the Hospital failed to provide Appropriate Auxiliary Aids and Services to Patients or companions or otherwise failed to provide effective communication with such Patients or Companions. Such notification must be provided in writing via certified mail within twenty (20) days of the date the Hospital 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 the Hospital relevant to the allegation. The Hospital will reference this provision of the Settlement Agreement in the notification to the U.S. Attorney’s Office.
80. Within ten (10) days of the Effective Date of this Settlement Agreement, the Hospital will pay $5,000.00 in compensation to the complainant. The Hospital will send a check made out to the complainant by certified mail, return receipt requested, or via hand delivery, to the United States Attorney’s Office. This check is compensation pursuant to 42 U.S.C. §12188(b)(2)(B), for the effects of the alleged discrimination suffered as described in paragraph 6. The check shall be mailed to: U.S. Attorney’s Office, 53 Pleasant Street, Concord, NH 03301, Attn: Michael McCormack.
81. Within five (5) days of receipt of the check referenced in paragraph 80 of this Settlement Agreement, the United States will deliver to counsel for the Hospital a release signed by the complainant.
82. Duration of the Settlement Agreement. This Settlement Agreement will be in effect for three (3) years from its Effective Date, after which time the Settlement Agreement shall end; provided, however, the Settlement Agreement shall terminate in two years from the Effective Date if both of the following conditions are met: (1) the Hospital is in compliance as of the second anniversary of the Effective Date of this Settlement Agreement with all provisions and obligations set forth in the Settlement Agreement; and (2) in the event that there has been an allegation of a violation of any of the above paragraphs, there has been an investigation and response by the Hospital that the United States considers to be effective, timely and adequate.
83. Changing Circumstances. During the term in which this Settlement Agreement will be in effect, there may be a change in circumstances such as, for example and without limitation, an increased or decreased availability of qualified sign language or oral interpreters or developments in technology to assist or improve communications with persons who are deaf or hard-of-hearing. If the Hospital determines that such changes create opportunities for communicating with Patients and Companions more efficiently or effectively than is required under this Settlement Agreement, or create difficulties not presently contemplated in the provision of Appropriate Auxiliary Aids and Services, it may propose changes to this Settlement Agreement by presenting written proposals to the United States Attorney’s Office. Such changes will then be made to the Settlement Agreement if the United States, upon review, grants its approval, which approval will not be unreasonably withheld or delayed.
84. Enforcement. The Attorney General is authorized, pursuant to section 308(b)(1)(B) of the ADA, to bring a civil action under Title III, enforcing the ADA in any situation where a pattern or practice of discrimination is believed to exist or a matter of general public importance is raised. In consideration of the terms of this Settlement Agreement as set forth above, the Attorney General agrees to refrain from undertaking further investigation or from filing a civil suit under Title III in this matter, except as provided in paragraphs 85 and 86, below. Nothing contained in this Settlement Agreement is intended or shall be construed as a waiver by the United States of any right to institute proceedings against the Hospital 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.
85. Review of Compliance. The United States may review compliance with this Settlement Agreement at any time and can enforce this Settlement Agreement if the United States believes that it or any requirement thereof has been violated by instituting a civil action in U.S. District Court. If the United States believes that this Settlement Agreement or any portion of it has been violated, it will raise its concern(s) in writing with the Hospital and the parties will attempt to resolve the concern(s) in good faith. The United States will allow the Hospital thirty (30) days from the date it notifies the Hospital of any breach of this Settlement Agreement to cure said breach, prior to instituting any court action to enforce the ADA and the terms of the Settlement Agreement.
86. Violations. If the Hospital violates this Settlement Agreement, the United States shall have all such remedies as are allowed under the ADA. The parties agree that in any subsequent legal proceedings the court may treat any violation of this Settlement Agreement as a first violation of the ADA for the purpose of calculating civil penalties, if any.
87. Entire Agreement. This Settlement Agreement constitutes the entire agreement between the Parties on the matters raised here, 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 Settlement 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.
88. Binding. This Settlement Agreement is final and binding on the parties, including all principals, agents, executors, administrators, representatives, successors in interest, beneficiaries, assigns, heirs and legal representatives thereof. Each party has a duty to inform any such successor in interest.
89. Non-Waiver. Failure by any party to seek enforcement of this Settlement Agreement pursuant to its terms with respect to any instance or provision shall not be construed as a waiver to such enforcement with regard to other instances or provisions.
90. Disclaimer of Liability. Nothing in this Settlement Agreement shall be construed as an admission by the Hospital of any liability or fault, that it engaged in any wrongful or illegal activity, that any of the United States’ allegations are true, or that any person suffered any injury as a result of the events as alleged by the United States. 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.
91. Execution of Agreement. The undersigned counsel represent that they have been fully authorized by their clients to enter into and execute this Settlement Agreement under the terms and conditions contained herein.
92. Availability of Settlement Agreement. This Settlement Agreement may be made available to any person.
93. Severability. In the event that a court shall determine that any provision of this Settlement Agreement is unenforceable, such provision shall be severed from this Settlement 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.
The undersigned AGREE to the form and content of this Agreement:
FOR MONADNOCK COMMUNITY HOSPITAL
FOR THE UNITED STATES
JOHN P. KACAVAS
United States Attorney
By: /s/ John A. Malmberg
John A. Malmberg, Esq.
Orr & Reno
One Eagle Square
PO Box 3550
Concord, NH 03302-3550
By: /s/ M. McCormack
Assistant U.S. Attorney
U.S. Attorney's Office
53 Pleasant Street
Concord, NH 03301