SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
PROMEDICA TOLEDO HOSPITAL
UNDER THE AMERICANS WITH DISABILITIES ACT
- The parties to this Settlement Agreement are the United States of America and The Toledo Hospital, Inc. (“ProMedica Toledo Hospital”, “PTH”, “The Toledo Hospital”, or “Hospital”).
- ProMedica Toledo Hospital is a not-for-profit hospital that provides hospital, clinical and related services in Toledo, Ohio. Dr. David Harper (“Harper”) is an employee of ProMedica Toledo Hospital at the Center for Women’s Health (CWH), part of the Center for Health Services, a department of The Toledo Hospital. This agreement applies to all departments and facilities of The Toledo Hospital.
- This matter was initiated by a complaint filed with the United States against the Center for Women’s Health of ProMedica Toledo Hospital and Harper alleging violations of title III of the Americans with Disabilities Act of 1990, as amended (“ADA”), 42 U.S.C. §§ 12181-12189, and its implementing regulation, 28 C.F.R. Part 36. Specifically, S.J. (the “Complainant”) alleged that Toledo Hospital and CWH personnel failed to provide sign language interpreter services on more than one occasion when necessary to ensure effective communication with S.J., who is deaf. The Complaint also alleges that Harper harassed S.J. because of her use of an interpreter.
- The parties have agreed that it is in the parties’ best interests, and the United States believes that it is in the public interest, to resolve this dispute. The parties have therefore voluntarily entered into this Agreement, agreeing as follows:
TITLE III COVERAGE AND FINDINGS
- The United States Attorney for the Northern District of Ohio (“U.S. Attorney’s Office”) is authorized under 42 U.S.C.§ 12188 and 28 C.F.R. Part 36, Subpart E, to investigate the allegations of the complaint in this matter to determine ProMedica Toledo Hospital’s compliance with title III of the ADA. The U.S. Attorney’s Office has the authority to, where appropriate, negotiate and secure voluntary compliance agreements, and to bring civil actions enforcing title III of the ADA should it fail to secure voluntary compliance.
- S.J. is an individual with a disability within the meaning of the ADA. She is deaf, and uses American Sign Language as her primary means of communication. 42 U.S.C. § 12102; 28 C.F.R. § 36.104.
- ProMedica Toledo Hospital is a private, non-profit corporation, and is licensed by the State of Ohio. ProMedica Toledo Hospital is a “public accommodation” within the meaning of title III of the ADA, 42 U.S.C. § 12181(7)(F), and its implementing regulation at 28 C.F.R. § 36.104, because it is a private entity that operates places of public accommodation.
- Under title III of the ADA, no person who owns, leases (or leases to), or operates a place of public accommodation may discriminate against an individual on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation. 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a).
- Ensuring that medical care providers do not discriminate on the basis of disability is an issue of general public importance. The United States is authorized to investigate alleged violations of title III of the ADA and to bring a civil action in federal court in any case that involves a pattern or practice of discrimination or that raises issues of general public importance. 42 U.S.C. § 12188(b).
- As a result of its investigation, the United States has determined that:
- S.J. received treatment at CWH and Toledo Hospital, related to her pregnancy, for her second child from January 31 to July 9, 2012.
- Staff members indicated that based on past visits it was well known by staff at CWH that S.J. is deaf and preferred an on-site American Sign Language (ASL) interpreter for her appointments in order to effectively communicate with medical providers and staff.
- ProMedica Toledo Hospital utilizes on-site interpreters from various local companies and also contracts with an outside firm for video remote interpreting (“VRI”) services and use of portable video interpreting units.
- Despite S.J.’s verbal requests for interpreter services at CWH during her prenatal care for her second child, a sign language interpreter was not provided.
- An advance request for a sign language interpreter was made in writing for the delivery of S.J.’s second child. Several hours after S.J.’s arrival at Toledo Hospital, a sign language interpreter was provided for the delivery of S.J.’s second child on July 9, 2012. Prior to the sign language interpreter arriving, S.J. was provided VRI services through a Martti Unit. Staff at the hospital were not properly trained on the use of the Martti Unit and it took over two hours for the equipment to be hooked up and function properly. Once the Martti Unit was working, the remote interpreter could not hear all of the medical staff properly and therefore, communication was ineffective. When the on-site sign language interpreter finally arrived, S.J. was able to effectively communicate and understand the medical staff present at the delivery.
- S.J. received treatment at CWH and Toledo Hospital for the birth of her third child from June 19, 2013, to February 17, 2014.
- On 13 out of 15 appointments during prenatal care for her third child at CWH, an interpreter was requested and provided. The two appointments where no interpreter was provided were routine postnatal blood pressure checks.
- S.J. was required to make a request for a sign language interpreter before each appointment.
- On or about November 19, 2013, S.J. attended a prenatal appointment at CWH and saw Dr. David Harper. Present in the examining room were S.J.’s husband, S.J.’s daughter, and a sign language interpreter.
- Dr. Harper questioned S.J. saying, “I understand you read lips, don’t you read lips?” He then questioned why an interpreter was present and necessary for communication with S.J.
- During hospital visits at Toledo Hospital related to S.J.’s third child, the sign language interpreters provided were often ineffective due to the interpreter being available for only a portion of the visit, long wait times for the Martti Unit to be available, or the inability of the interpreter on the Martti Unit to see and hear persons in the room. Additionally, staff appeared to be poorly trained on the policies and procedures for requesting and providing a sign language interpreter.
- On or about October 31, 2014 and November 5, 2014, S.J.’s daughter broke her leg and had some appointments for surgery due to the injury. S.J. requested an on-site sign language interpreter and was told that they only used Martti Units at Toledo Hospital. On the day of the surgery a sign language interpreter was provided, but only for part of the procedure. The interpreter left before the recovery period. Toledo Hospital then provided a Martti Unit, however the interpreter on the Martti Unit was unable to see and hear persons in the room, making the communication ineffective.
- On July 30, 2015, S.J. called CWH to make an appointment for her daughter. She was informed that since she had a “lawsuit” against CWH they could not provide an appointment. CWH was referring to this investigation; no lawsuit was filed by S.J. or the United States.
- On the basis of its investigation, the United States has determined that ProMedica Toledo Hospital denied S.J. appropriate Auxiliary Aids and Services necessary for effective communication during the above-referenced treatments at CWH and Toledo Hospital, in violation of 42 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303. Further, the United States has determined that ProMedica Toledo Hospital retaliated against S.J. because she asserted her rights under the ADA and pursued CWH’s failure to provide effective communication in violation of 42 U.S.C. § 12203(a).
- The Complainant is an aggrieved person pursuant to 42 U.S.C. § 12188(b)(2)(B).
- In consideration of the terms of this Agreement, the United States agrees to refrain from filing a civil suit in this matter regarding the areas covered under the Equitable Relief section of this Agreement, except as provided in the Enforcement section of the Agreement.
- In a spirit of cooperation toward ensuring full compliance with Title III of the Americans with Disabilities Act and in consideration of the United States’ agreement to refrain from possible litigation as set out below, PTH agrees to take the actions specified in this Agreement. This Agreement is neither an admission of liability by PTH nor a concession by the United States that its claims are not well-founded. By entering into this Agreement, PTH does not admit the allegations alleged above, or to any violation of law, liability, fault, misconduct, or wrongdoing in connection with those allegations. The Parties have determined that the complaint filed with the United States can be resolved without litigation and have agreed to the terms of this Agreement.
- The term “Auxiliary Aids and Services” includes Qualified Interpreters on-site or through video remote interpreting (VRI) services; notetakers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing. 28 C.F.R. § 36.303(b)(1).
- The term “Hospital Personnel” means all employees, both full and part-time, and independent contractors with contracts to work on a substantially full-time basis for ProMedica Toledo Hospital (or on a part-time basis exclusively for the Hospital), including, without limitation, nurses, physicians, social workers, technicians, admitting personnel, billing staff, security staff, therapists, and volunteers, who have or are likely to have direct contact with Patients or Companions as defined herein.
- The term “Qualified Interpreter” means an interpreter who, via a video remote interpreting (VRI) service or an on-site appearance, is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. Qualified Interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators. 28 C.F.R. § 36.104.
- The term “Patient” shall be broadly construed to include any individual seeking access to, or participating in, the goods, services, facilities, privileges, advantages, or accommodations of a public accommodation of ProMedica Toledo Hospital, whether as an inpatient or an outpatient, as well as 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) 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.
- The term “Companion” means a person who is a family member, friend, or associate of a Patient, 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).
A. Prohibition of Discrimination
- Nondiscrimination. Pursuant to 42 U.S.C. § 12182(a), PTH shall provide Patients and Companions who are deaf and hard of hearing with the full and equal enjoyment of the services, privileges, facilities, advantages, and accommodations of PTH as required by this Agreement and the ADA. PTH shall provide appropriate Auxiliary Aids and Services, including Qualified Interpreters, where such aids and services are necessary to ensure effective communication with Patients and Companions who are deaf and hard of hearing.
- Discrimination by Association. PTH shall not deny its services, accommodations, or other opportunities to any individual because of the known relationship of that person with someone who is deaf or hard of hearing. See 42 U.S.C. § 12182(b)(1)(E).
- Retaliation and Coercion. PTH shall not retaliate against or coerce in any way any person who made, or is making, a complaint according to the provisions of this Agreement or exercised, or is exercising, his or her rights under this Agreement or the ADA. See 42 U.S.C. § 12203.
B. Effective Communication
- Appropriate Auxiliary Aids and Services. Pursuant to 42 U.S.C. § 12182(b)(2)(A)(iii), ProMedica will provide to Patients and Companions who are deaf or hard of hearing any appropriate Auxiliary Aids and Services that are necessary for effective communication after making the assessment described in Paragraphs 24-25 of this Agreement. Appropriate Auxiliary Aids and Services will be provided as soon as practicable (without compromising Patient care), except that the provision of on-site interpreters must be within the time frame described in Paragraph 34 of this Agreement. PTH will advise Patients and Companions who require Auxiliary Aids or Services that these are available throughout the Patient’s time at the Hospital as requested by the Patient.
- General Assessment Criteria. The determination of appropriate Auxiliary Aids or Services, and the timing, duration, and frequency with which they will be provided, will be made by Hospital personnel in consultation with the person with a disability whenever possible. The assessment made by Hospital personnel will take into account all relevant facts and circumstances, including, for example, the individual’s communication skills and knowledge, and the nature, length, complexity of the communication at issue, and the context in which the communication is taking place. A Model Communication Assessment Form is attached to this Agreement as Exhibit A, and will be used by PTH upon the effective date of this Agreement. PTH may develop a more comprehensive form similar to Exhibit A within 30 days of the effective date of this Agreement to be used at PTH facilities. This new form will be subject to approval by counsel for the United States prior to implementation.
- Time for Assessment. The determination of which appropriate Auxiliary Aids and Services are necessary must be made to the extent possible at the time an appointment is scheduled for the Patient who is deaf or hard of hearing or on the arrival of the Patient or Companion who is deaf or hard of hearing at the Hospital, whichever is earlier. Then, if determined that Auxiliary Aids and Services are necessary, PTH personnel will perform an assessment using the appropriate Auxiliary Aids and Services (see Paragraph 23) as part of each initial inpatient assessment when the patient is first seen to fully determine which appropriate Auxiliary Aids and Services are necessary, and the timing, duration, and frequency with which they will be provided. The results of this assessment will then be documented in the Patient’s electronic medical chart. In the event that communication is not effective, Hospital Personnel will reassess which appropriate Auxiliary Aids and Services are necessary, in consultation with the person with a disability, where possible, and provide such aid or service based on the reassessment.
- ADA Administrators. The Hospital hereby designates the Administrator on Call at each ProMedica facility as the ADA Administrator. The House Supervisor will serve as the ADA Co-Administrator, and at least one such employee will always be on duty and available 24 hours a day, seven days a week, to answer questions and provide appropriate assistance regarding immediate access to, and proper use of, the Auxiliary Aids and Services, including Qualified Interpreters. The ADA Administrator(s) will know where the Auxiliary Aids are stored and how to operate them. The Hospital hereby designates the, Vice President, Patient Care Services or their designee, as being responsible for their maintenance, repair, replacement, and distribution. ProMedica will circulate and post broadly within each ProMedica facility the name, telephone number, function, and office location of the ADA Administrator(s), including a TTY telephone number, through which the ADA Administrator(s) on duty can be contacted 24 hours a day seven days a week by Patients and Companions who are deaf and hard of hearing. The ADA Administrators will be responsible for the complaint resolution mechanism described in Paragraph 28 of this Agreement during the periods that they are on duty. Complaints incapable of immediate resolution will be processed using the established grievance resolution mechanism under Paragraph 28.
- Auxiliary Aid and Service Log. PTH will maintain a log in which requests for Qualified Interpreters on site or through video remote services will be documented. The log will indicate the time and date the request was made, the name of the Patient or Companion who is deaf or hard of hearing, the time and date of the scheduled appointment (if a scheduled appointment was made), the nature of the auxiliary aid or service provided, and the time and date the auxiliary aid or service was provided. If no auxiliary aid or service was provided, the log shall contain a statement why the auxiliary aid and service was not provided and the Hospital staff who made the decision. Such logs will be maintained at each facility for the entire duration of the Agreement, and will be incorporated into the semi-annual Compliance Reports as described in paragraph 47 of this Agreement.
- Complaint Resolution. PTH will utilize its established grievance resolution mechanism for the investigation of disputes regarding effective communication with Patients and Companions who are deaf and hard of hearing. PTH will maintain records of all grievances regarding effective communication, whether oral or written, made to PTH and actions taken with respect thereto. At the time Hospital Personnel complete the assessment described in Paragraphs 24-25 and advise Patient and/or Companion of the determination of which appropriate Auxiliary Aids and Services are necessary, the Hospital will notify Patients and/or Companions who are deaf and hard of hearing of its grievance resolution mechanism, to whom complaints should be made, and of the right to receive a written response to the grievance. This notification will be provided verbally during the assessment and shall appear in writing on the Communication Assessment Form. A written response to any grievance filed shall be completed within the same time frames under the established grievance process. Copies of all grievances related to provision of services for Patients and/or Companions who are deaf or hard of hearing and the responses thereto will be maintained by the ADA Administrators for the entire duration of the Agreement.
- Prohibition of Surcharges. All appropriate Auxiliary Aids and Services required by this Agreement will be provided free of charge to the Patient and/or Companion who is deaf or hard of hearing.
- Record of Need for Auxiliary Aid or Service. PTH will take appropriate steps to ensure that all Hospital Personnel are made aware of a Patient or Companion’s disability and auxiliary aid and services needed by specifying those needs in the patient’s chart (electronic or otherwise) so that effective communication with such person will be achieved.
C. Qualified Interpreters
- 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 except in an emergency involving an imminent threat to the safety or welfare of an individual where there is no interpreter available. 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.
- Circumstances Under Which Interpreters Will Be Provided. When an interpreter is needed, the Hospital shall provide a qualified sign language interpreter to Patients and Companions who are deaf or hard of hearing and whose primary means of communication is sign language, and qualified oral interpreters to such Patients and Companions who rely primarily on lip reading as necessary for effective communication. Examples of circumstances when the communication may be sufficiently lengthy or complex so as to require a Qualified Interpreter include the following:
- Discussing a Patient’s symptoms and medical condition, medications, and medical history;
- Explaining medical conditions, treatment options, tests, medications, surgery, and other procedures;
- Providing a diagnosis and recommendation for treatment;
- Communicating with a Patient during treatment, testing procedures, and during physician’s rounds;
- Providing Patients’ rights, obtaining informed consent or permission for treatment;
- Providing instructions for medications, post-treatment activities, and follow-up treatments;
- Providing mental health services, including group or individual counseling for Patients and family members;
- Providing information about blood or organ donations;
- Discussing powers of attorney, living wills, or complex billing and insurance matters;
- During educational presentations, such as birthing or new parent classes, nutrition and weight management programs, and CPR and first-aid training;
- Determining any condition or allergy of Patient that may affect choice of medication;
- During blood donations or apheresis (removal of blood components);
- Filing of administrative complaints or grievances against the Hospital or Hospital Personnel; and
- Any other circumstance in which a qualified sign language interpreter is necessary to ensure a Patient’s rights provided by law.
- Chosen Method for Obtaining Interpreters. Within 60 days after execution of this Agreement, PTH will identify one or more interpreter services and will make appropriate arrangements with said services to provide qualified on site interpreters in a timely manner, as well as VRI services at the request of PTH.
- Provision of Interpreters in a Timely Manner.
- Non-scheduled Interpreter Requests. A “non-scheduled interpreter request” means a request for an interpreter made by a deaf or hard of hearing Patient or Companion less than two hours before the Patient’s appearance at the Hospital for examination or treatment. For non-scheduled interpreter requests, ProMedica personnel will complete the assessment described in Paragraphs 24-25above. The interpreter shall be provided no more than (a) two hours from the time ProMedica completes the assessment if the service is provided through a contract interpreting service or a staff interpreter who is located off-site or (b) 30 minutes from the time ProMedica completes the assessment if the service is provided through a Video Remote Interpreting service as described in Paragraph 35 below. Deviations from this response time will be addressed with the interpreting service provider, and performance goals will be reviewed with the U.S. Attorney’s Office.
- Scheduled Interpreter Requests. A “scheduled interpreter request” is a request for an interpreter made two or more hours before the services of the interpreter are required. For scheduled interpreter requests, Hospital personnel will complete the initial communication assessment described in Paragraphs 24-25 above in advance of the first visit, and, when an interpreter is appropriate, PTH will make a Qualified Interpreter available at the time of the scheduled appointment. If an interpreter fails to arrive for the scheduled appointment, upon notice that the interpreter failed to arrive, PTH will immediately call the interpreter service(s) for another Qualified Interpreter.
- Data Collection on Interpreter Response Time and Effectiveness. PTH will monitor the performance of each Qualified Interpreter service it uses to provide communication to deaf or hard of hearing Patients or Companions through its established process of monitoring outside vendors. As part of the Auxiliary Aid and Service Log, described in Paragraph 27, PTH shall collect information regarding response times for each request for an interpreter.
- Video Remote Interpreting (“VRI”). When using VRI services, PTH shall ensure that it provides: (1) Real-time, full-motion video and audio over a dedicated high-speed, wide-bandwidth video connection or wireless connection that delivers high-quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in communication; (2) A sharply delineated image that is large enough to display the interpreter’s face, arms, hands, and fingers, and the participating individual’s face, arms, hands, and fingers, regardless of his or her body position; (3) A clear, audible transmission of voices; and (4) Adequate training to users of the technology and other involved individuals so that they may quickly and efficiently set up and operate the VRI. 28 C.F.R. § 36.303(f). VRI shall not be used when it is not effective due, for example, to a Patient’s limited ability to move his or her head, hands or arms; vision or cognitive issues; or significant pain; or due to space limitations in the room.
- Notice to Patients and Companions Who Are Deaf or Hard of hearing. As soon as Hospital personnel have determined that a Qualified Interpreter is necessary for effective communication with a deaf or hard of hearing Patient or Companion, PTH will inform the Patient or Companion (or a family member or friend, if the Patient or Companion is not available) of the current status of efforts being taken to secure a Qualified Interpreter on his or her behalf. The Hospital will provide additional updates to the Patient or Companion as necessary until an interpreter is secured. Notification of efforts to secure a Qualified Interpreter does not lessen the Hospital’s obligation to provide Qualified Interpreters in a timely manner as required by Paragraph 34.
- Other Means of Communication. PTH agrees that between the time an interpreter is requested and the interpreter is provided, Hospital Personnel will continue to try to communicate with the deaf or hard of hearing Patient or Companion for such purposes and to the same extent as they would have communicated with the person but for the disability, using all available methods of communication, including using sign language pictographs. This provision in no way lessens PTH’s obligation to provide Qualified Interpreters in a timely manner as required by Paragraph 34.
D. Notice to the Public
- Policy Statement. Within 90 days of the entry of this Agreement, PTH shall maintain signs of conspicuous size and print at all Hospital admitting stations, the emergency department, and wherever a Patient’s Bill of Rights is required by law to be posted. Such signs shall include the ADA Administrator’s contact information (see below and Exhibit B). Such signs shall be to the following effect:
Sign language and oral interpreters, TTYs, and other auxiliary aids and services are available free of charge to people who are deaf or hard of hearing. For assistance, please contact any Hospital Personnel or the Information Office at _____________ (voice/TTY), room ______.
These signs will include the international symbols for “interpreters” and “TTYs.” An example is found in Exhibit B.
- Website. PTH will include on its website the policy statement described above, conspicuously linked from the main website, currently at http://www.promedica.org.
- Patient Handbook. PTH will include in all future printings of its Patient Handbook (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, we provide appropriate auxiliary aids and services free of charge, such as: sign language and oral interpreters, video remote interpreting services, TTYs, note takers, written materials, telephone handset amplifiers, assistive listening devices and systems, telephones compatible with hearing aids, televisions with caption capability or closed caption decoders, and open and closed captioning of most PTH programs.
Please ask your nurse or other Hospital Personnel for assistance, or contact the Information Office at ______________ (voice or TTY), room _________________.
PTH will also include in its Patient Handbook a description of its complaint resolution mechanism.
E. Notice to ProMedica Toledo Hospital Personnel and Physicians
- PTH shall publish on its intranet a policy statement regarding PTH’s policy for effective communication with persons who are deaf or hard of hearing. This policy statement shall include, but is not limited to, language to the following effect:
If you recognize or have any reason to believe that a Patient or a relative, close friend, or Companion of a Patient is deaf or hard of hearing, you must advise the person that appropriate auxiliary aids and services, such as sign language and oral interpreters, video remote interpreting services, TTYs, note takers, written materials, telephone handset amplifiers, assistive listening devices and systems, telephones compatible with hearing aids, televisions with captioning or closed caption decoders, and open and closed captioning of most Hospital programs, will be provided free of charge when appropriate. If you are the responsible health care provider, you must ensure that such aids and services are provided when appropriate. All other personnel should direct that person to the appropriate ADA Administrator at _____________ and reachable at ________________.
- Training of ADA Administrator. PTH will provide mandatory training for the ADA Administrators within 60 days of designation as provided in Paragraph 26 of this Agreement. Such training should be updated on an annual basis. Such training will be sufficient in duration and content to train the ADA Administrators in the following areas:
- To promptly identify communication needs of Patients and Companions who are deaf or hard of hearing and which auxiliary aids are effective in which situations;
- To secure Qualified Interpreter Services as quickly as possible when necessary;
- To encourage medical staff members to notify PTH of Patients and Companions who are deaf or hard of hearing as soon as Patients schedule admissions, tests, surgeries, or other health care services at PTH;
- To use, when appropriate, flash cards and pictographs (in conjunction with any other available means of communication that will augment the effectiveness of the communication);
- How and when to use video remote interpreting services;
- Making and receiving calls through TTYs and the relay service; and
- The Hospital’s complaint resolution procedure described in Paragraph 28 of this Agreement.
- Training of Hospital Personnel. Except for affiliated physicians, who are governed by Paragraph 46 of this Agreement, PTH will provide mandatory in-service training to all Hospital Personnel.
- The training will address the needs of Patients and Companions who are deaf or hard of hearing and will include the following objectives:
- To promptly identify communication needs of Patients and Companions who are deaf or hard of hearing;
- To secure Qualified Interpreter services as quickly as possible when necessary; and
- To use, when appropriate, flash cards and pictographs (in conjunction with any other available means of communication that will augment the effectiveness of the communication).
- Such training must be provided within 150 days of the effective date of this Agreement.
- New employees must be trained within 30 days of their hire. A screening of a video of the original training will suffice to meet this obligation.
- Training of Telephone Operators. All Hospital Personnel who receive incoming telephone calls from the public will receive instructions by PTH on using TTYs or relay services to make, receive, and transfer telephone calls and will receive training on the process for requesting interpreter services and the types of services provided, the existence in PTH of an ADA Administrator, as detailed in Paragraph 26 of this Agreement, and the complaint resolution process, as described in Paragraph 28 of this Agreement. Such training must be provided within 60 days of the effective date of this Agreement and will be conducted annually thereafter.
- Training Attendance Sheets. PTH will maintain in electronic form for the duration of this Agreement, confirmation of training conducted pursuant to Paragraphs 43 of this Agreement, which will include the names, respective job titles of the attendees, as well as the date and time of the training.
- Training of Affiliated Physicians. PTH will create and send an email blast advising affiliated physicians of its policy on the communication needs of Patients or Companions who are deaf or hard-of-hearing and will invite all physicians who are affiliated with PTH (admitting or surgical privileges, etc.) to complete computerized training. This email will direct affiliated physicians to the PTH web page which will include: (1) The Hospital’s Policy Statement for persons working at PTH as described in Paragraph 38 and any relevant forms; and (2) a request that physicians’ staff members notify PTH of Patients and Companions who are deaf or hard of hearing as soon as they schedule admissions, tests, surgeries, or other health care services at PTH.
- Compliance Reports. Beginning six months after the effective date of this Agreement, and every six months thereafter for the entire duration of the Agreement, PTH will provide a written report (“Compliance Report”) to the U.S. Attorney’s Office regarding the status of its compliance with this Agreement. The Compliance Report will include data relevant to the Agreement, including but not limited to:
- The information required in Auxiliary Aid and Service Log described in Paragraph 27; and
- The number of complaints received by PTH from Patients and Companions who are deaf or hard of hearing regarding Auxiliary Aids and Services and/or effective communication, and the resolution of such complaints including any supporting documents; and
- Records of training conducted and employees in attendance at training.
PTH will maintain records to document the information contained in the Compliance Reports and will make them available, upon request, to the U.S. Attorney’s Office.
- Complaints. During the term of this Agreement, PTH will notify the U.S. Attorney’s Office if any person files a lawsuit, complaint, or formal charge with any state or federal agency, alleging that the Hospital failed to provide Auxiliary Aids and Services to Patients or Companions who are deaf or hard of hearing or otherwise failed to provide effective communication with such Patients or Companions. Such notification must be provided in writing via certified mail within 28 days of the date PTH 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 PTH relevant to the allegation. PTH will reference this provision of the Agreement in the notification to the U.S. Attorney’s Office.
H. Compensatory Relief for Complainants and Release
- Within 30 days of the effective date of this Agreement, PTH shall pay $10,000 to S.J., as authorized by 42 U.S.C. § 12188(b)(2)(B) and 28 C.F.R. § 36.504(a)(2), to compensate her for any harm she may have endured (including, but not limited to, emotional distress, pain and suffering, and other consequential injury) as a result of PTH’s alleged failure to provide her effective communication and for alleged retaliation. The Hospital will send a check made out to the complainant by certified mail, return receipt requested, or via hand delivery, to Angelita Cruz Bridges, AUSA, United States Attorney’s Office, Four Seagate, 433 North Summit, Suite 308, Toledo, Ohio 43604-2624.
- Within ten days of the effective date of this Agreement, the U.S. Attorney’s Office will deliver to counsel for PTH a release signed by S.J. This release is attached as Exhibit C.
I. Payment of Civil Penalty to the United States
- PTH shall pay to the United States the sum of Five Thousand Dollars ($5,000.00) (“Civil Penalty Amount”) pursuant to 42 U.S.C. § 12188(b)(2)(C), no later than 30 days after the effective date of this Agreement by electronic funds transfer pursuant to written instructions to be provided by the United States Attorney’s Office for the Northern District of Ohio.
J. Other Provisions
- Enforcement. The United States may review PTH’s compliance with this Agreement or title III of the ADA at any time. If the United States believes that this Settlement Agreement or any portion of it, or Title III of the ADA, has been violated, it will raise its concern(s) in writing with the Hospital, discuss those concerns with the Hospital, and the parties will then attempt to resolve the concern(s) in good faith. If a resolution is not achieved, the United States will provide the Hospital with written notice of any breach and allow the Hospital thirty (30) days to cure said breach, prior to instituting any court action to enforce the ADA and the terms of the Settlement Agreement. If the United States believes that title III of the ADA, this Agreement, or any portion of it has been violated, it may institute a civil action in the appropriate U.S. District Court to enforce this Agreement and/or title III of the ADA.
- Severability. If any term of this Agreement is determined by any court to be unenforceable, the other terms of this Agreement shall nonetheless remain in full force and effect, provided, however, that if the severance of any such provision materially alters the rights or obligations of the parties, the United States and PTH shall engage in good faith negotiations in order to adopt mutually agreeable amendments to this Agreement as may be necessary to restore the parties as closely as possible to the initially agreed upon relative rights and obligations.
- Entire Agreement. This Agreement, including attachments A, B, and C, constitutes the entire agreement between the United States and PTH on the matters raised herein, and no prior or contemporaneous statement, promise, or agreement, either written or oral, made by any party or agents of any party, that is not contained in this written agreement, including any attachments, is enforceable. This Agreement can only be modified by mutual written agreement of the parties.
- Binding. This Agreement is binding on PTH, including all principals, agents, executors, administrators, representatives, employees, successors in interest, beneficiaries, and assignees. In the event that PTH seeks to sell, transfer, or assign all or part of its interest during the term of this Agreement, as a condition of sale, transfer or assignment, PTH will obtain the written agreement of the successor, buyer, transferee, or assignee as to all obligations remaining under this Agreement for the remaining term of this Agreement.
- Non-Waiver. Failure by the United States to enforce any provision of this Agreement is not a waiver of its right to enforce that or any other provisions of this Agreement.
- Signatory. The signatory for PTH represent that he or she is authorized to bind PTH to this Agreement.
- Retaliation. PTH shall not discriminate or retaliate against any person because of his or her participation in this matter.
K. Effective Date/Termination Date
- Effective Date. The effective date of this Agreement is the date of the last signature below.
- Duration. The duration of this Agreement will be three (3) years from the effective date of this Agreement.
For the United States of America:
STEVEN M. DETTELBACH
United States Attorney
/s/ Angelita Cruz Bridges
ANGELITA CRUZ BRIDGES
Assistant United States Attorney
Northern District of Ohio
Four Seagate, Suite 308
Toledo, OH 43604-2624
Fax: 419- 259-6360
For ProMedica Toledo Hospital
/s/ Arturo Polizzi
2142 North Cove Blvd.
Toledo, OH 43606
Executed this 17th day of December, 2015
Executed this 23rd day of December, 2015
ProMedica Toledo Hospital (“PTH”) and its office staff are committed to providing equal access to patients, family members, and companions with disabilities.
To ensure effective communication, ProMedica Toledo Hospital provides qualified sign language and oral interpreters, and other auxiliary aids and services free of charge for patients, family members, and companions, who are deaf, are hard of hearing, or have speech disabilities.
To request auxiliary aids or services, please speak to ______________. If an auxiliary aid or service is denied, you can request a reconsideration by providing this office with a written statement explaining why you need the aid or service that was denied. If needed, office staff can help write down your request for reconsideration. If you have any problems, please speak to _________________ directly.
The Americans with Disabilities Act (ADA) prohibits discrimination against people with disabilities. People who are deaf, are hard of hearing, or have speech disabilities have the right under the ADA to request auxiliary aids and services. For more information about the ADA, call the Department of Justice’s toll-free ADA Information Line at 1-800-514-0301 (voice), 1-800-514-0383 (TTY) or visit the ADA Home Page at www.ada.gov.