Voluntary Resolution Agreement Between the United States Department of Justice and the United States Department of Health and Human Services, Office for Civil Rights and William W. Backus Hospital

Voluntary Resolution Agreement
Between the United States Department of Justice and the United States Department of Health and Human Services, Office for Civil Rights and William W. Backus Hospital

I. Parties to Agreement

1. The Parties to this Voluntary Resolution Agreement ("Agreement") are:
   1. the U.S. Department of Justice through the U.S. Attorney's Office for the District of Connecticut ("DOJ"), pursuant to its jurisdictional authority under Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12188, and the U.S. Department of Health and Human Services ("HHS"), Office for Civil Rights ("OCR"), pursuant to its jurisdictional authority under Section 504 of the Rehabilitation Act of 1973 ("Section 504"), 29 U.S.C. § 794, and its implementing regulation, 45 C.F.R. Part 84, and Section 1557 of the Affordable Care Act ("Section 1557"), 42 U.S.C. § 18116, and its implementing regulation, 45 C.F.R. Part 92, and
   2. the William W. Backus Hospital ("Backus Hospital").

II. Background

2. This matter was initiated upon a Complaint filed with DOJ by an individual who is deaf and utilizes American Sign Language ("ASL") as his primary means of communication (the "Complainant") alleging that Backus Hospital failed to provide appropriate auxiliary aids and services when necessary to ensure effective communication during a hospitalization on or about May 13-18, 2015, in violation of the ADA and its implementing regulation.
3. Although Backus Hospital provided ASL interpreters at the Complainant's admission and for discharge planning, at all other times, personnel attempted to communicate with the Complainant through the exchange of written notes. The Complainant alleged that he was unable to communicate effectively with personnel about his medical care using written notes because he has very limited ability to read and write English. In addition, on some occasions, personnel were unable to operate Backus' Hospital's video remote interpreting system.
4. As a result of this complaint, DOJ and OCR initiated respective reviews of Backus Hospital's compliance with Title III of the ADA, Section 504, and Section 1557, with regard to the Complainant's allegations, including a review of Backus Hospital's policies and procedures for ensuring effective communication with individuals who are deaf or hard of hearing.
5. Backus Hospital cooperated fully in the investigation, providing DOJ and OCR with full access to records, witnesses, and personnel. Backus Hospital responded that its daily communication assessment indicated no difficulty communicating with the Complainant, asserting that they were legally compliant at the time of Complainant's visit and, subsequently, those services have only been strengthened.
6. Backus Hospital expressly denies that they violated Title III of the ADA, Section 504 and Section 1557, and by entering into this Agreement, does not admit to any wrongdoing. This Agreement is not an admission of liability by Backus Hospital. By entering into this agreement, Backus Hospital does not admit to any violation of law, liability, fault, misconduct or wrongdoing.

III. Jurisdiction

7. The Attorney General of the United States is responsible for administering and enforcing Title III of the ADA, 42 U.S.C. §§ 12101-12213, and the relevant regulations implementing Title III, 28 C.F.R. Part 36.
8. OCR is responsible for enforcing Section 504, 29 U.S.C. § 794(a), and its implementing regulation, 45 C.F.R. Part 84, which prohibit discrimination on the basis of disability in any program or activity receiving financial assistance from HHS.
9. OCR is also responsible for enforcing Section 1557, 42 U.S.C. § 18116, and its implementing regulation, 45 C.F.R. Part 92. The Section 1557 implementing regulation provides that, except as provided in Title I of the Patient Protection and Affordable Care Act (ACA), an individual shall not, on the grounds prohibited under Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, or Section 504 of the Rehabilitation Act of 1973, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving federal financial assistance from HHS, or under any program or activity that is administered by HHS under Title I of the ACA or by any entity established under Title I of the ACA. 45 C.F.R.§ 92.2.
10. Backus 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 a hospital, which is place of public accommodation, and is thus subject to the requirements of Title III of the ADA
11. Backus Hospital is a recipient of financial assistance from HHS, including through its participation in Medicare, Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq., Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., and Medicaid programs, and thus subject to the requirements of Section 504. 45 C.F.R. § 84.2. As a health program or activity receiving financial assistance from HHS, Backus Hospital is subject to Section 1557. 45 C.F.R. § 92.3.
12. Under Title III of the ADA, and its implementing regulation, public accommodations, including hospitals, are prohibited from discriminating on the basis of disability in the full and equal enjoyment of their goods, services, facilities, privileges, advantages or accommodations. 42 U.S.C. §§ 12181 – 12189; 28 C.F.R. Part 36. Specifically, a public accommodation shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden. 28 C.F.R. § 36.303(a).
13. Under Section 504 and Section 1557, and the relevant implementing regulations, no qualified individual with a disability shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination by reason of disability in any health program or activity receiving financial assistance from HHS. 29 U.S.C. § 794; 42 U.S.C. § 18116; 45 C.F.R. §§ 84.4(a), 84.52(a)(1); 45 C.F.R. § 92.2. Specifically, a recipient of HHS financial assistance shall provide appropriate auxiliary aids to persons with impaired sensory, manual, or speaking skills, where necessary to afford such persons an equal opportunity to benefit from the service in question. 45 C.F.R. § 84.52(d); 45 C.F.R. § 92.102(b). Furthermore, a covered health program or activity shall take appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with others in health programs and activities, in accordance with the standards found at 28 C.F.R. §§ 35.160 through 35.164 (regulation implementing Title II of the ADA). 45 C.F.R. § 92.102(a) (incorporating 28 C.F.R. §§ 35.160 – 164).
14. The Complainant is an individual with a disability within the meaning of the ADA, 42 U.S.C. § 12102, Section 504, 29 U.S.C. § 705(20)(B) (incorporating the ADA definition of disability in 42 U.S.C. § 12102), and Section 1557, 45 C.F.R. § 92.102(c) (same).
15. Ensuring that hospitals do not discriminate on the basis of disability is an issue of general public importance. DOJ is authorized to investigate alleged violations of Title III of the ADA, to use alternative means of dispute resolution, where appropriate, including settlement negotiations, to resolve disputes, and to bring a civil action in federal court in any case that the Attorney General concludes raises an issue of general public importance. 42 U.S.C. §§ 12188(b), 12212; 28 C.F.R. §§ 36.502, 503, 506.
16. OCR is responsible for investigating complaints and conducting compliance reviews to determine if recipients of HHS funding operate their programs and activities in compliance with Section 504 and Section 1557. OCR has the authority, where appropriate, to negotiate and secure voluntary compliance agreements. If noncompliance cannot be corrected by informal means, OCR may take any action authorized by law.
17. The Parties have come to a mutual understanding about the provision of appropriate auxiliary aids and services to ensure effective communication with individuals with disabilities. The Parties have determined that this matter can be resolved promptly and without further burden or the expense of additional investigation, enforcement proceedings or litigation. Backus Hospital agrees to the terms stipulated in this Agreement and affirms that it fully intends to comply with all applicable provisions of the ADA, Section 504, and Section 1557.

IV. Definitions

For purposes of this Agreement, the terms listed below shall have the following meaning:

18. The term "Auxiliary Aids and Services" includes qualified interpreters on-site or through video remote interpreting (VRI) services; note takers; 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, 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.
19. The term "Duration of this Agreement" means the period of time this Agreement remains in effect.
20. The term "Effective Date of this Agreement" means the date the Agreement is signed by all Parties.
21. The term "Patient" as used herein means any individual who is seeking to receive or receiving health care services (whether inpatient or outpatient, including consultations, treatment, scheduling of appointments, discussion of billing issues, attending health education classes, and other health care services) from Backus Hospital.
22. The term "Companion" means a family member, friend, or associate of a Patient who, along with the Patient, is an appropriate person with whom Backus Hospital should communicate.
23. 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. Not all interpreters are qualified for all situations. For example, an interpreter who is qualified to interpret using American Sign Language (ASL) is not necessarily qualified to interpret orally. Someone who has only a rudimentary familiarity with sign language or finger spelling is not a Qualified Interpreter under this Agreement. Likewise, someone who is fluent in ASL but unable to translate spoken communication into ASL or to translate signed communication into spoken words is not a Qualified Interpreter.
24. The term "Backus Hospital personnel" means all employees, agents, and contractors working for or on behalf of Backus Hospital who have or are reasonably likely to have direct contact with Patients or Companions, as defined herein, including, without limitation, nurses, physicians, social workers, technicians, admitting personnel, receptionists, telephone operators, billing staff, security staff, counselors, therapists, and volunteers. 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 Backus Hospital.
25. The term "video remote interpreting" ("VRI") means an interpreting service that uses video conference technology over dedicated lines or wireless technology offering high-speed, wide-bandwidth video connection that delivers high-quality video images as provided in 28 C.F.R. § 36.303(f) and 45 C.F.R. § 92.102(a) (same), as set forth in Paragraph 35.

V. Actions To Be Taken By Backus Hospital

A. Provision of Effective Communication

26. Appropriate Auxiliary Aids and Services. Consistent with the ADA, Section 504, and Section 1557, Backus Hospital will furnish appropriate auxiliary aids and services where necessary to ensure that communications with Patients and Companions who are deaf or hard of hearing are as effective as communications with others. In order to be effective, Backus Hospital will provide auxiliary aids and services in a timely manner, in accessible formats, and in such a way so as to protect the privacy and independence of the individual with a disability.
27. Policies and Procedures. Within ninety (90) calendar days of the Effective Date of this Agreement, Backus Hospital shall review its policy and any related procedures, and revise, as necessary, to ensure it is taking steps to provide effective communication with Patients and Companions who are deaf or hard of hearing, consistent with the requirements of this Agreement, the ADA, Section 504, and Section 1557.
28. Prohibition of Surcharges. All appropriate auxiliary aids and services required by this Agreement will be provided free of charge to Patients and Companions who are deaf or hard of hearing.
29. Timing of Communication Assessment and Determination. Backus Hospital personnel will perform and document a communication assessment as part of each initial Patient assessment, and reassess communication effectiveness regularly throughout the visit. If there is any indication from an initial assessment, inquiry, request, or Backus Hospital's observations that a Patient or Companion is deaf or hard of hearing and auxiliary aids and services are necessary, Backus Hospital personnel who are primarily responsible for coordinating and/or providing patient care services, in consultation with the Patient or Companion whenever possible, will determine which appropriate auxiliary aids and services are necessary as described in Paragraph 30. The initial assessment and determination of which appropriate auxiliary aids and services are necessary 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 Backus Hospital becomes aware that a Patient or Companion who may require auxiliary aids or service is en route to Backus Hospital; or
    3. the time the Patient or Companion initially comes in contact with Backus Hospital personnel who are primarily responsible for coordinating and/or providing patient care services.

In all instances where Backus Hospital personnel become aware that a Patient or Companion who is deaf or hard of hearing is en route to the Emergency Department (by ambulance or otherwise), Backus Hospital personnel will make reasonable efforts to conduct an assessment 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 Backus Hospital.

30. Communication Assessment Criteria. In determining what type of auxiliary aids or services are needed to ensure effective communication, Backus Hospital will take into account all relevant facts and circumstances, including without limitation the following:
    1. the method of communication used by the individual;
    2. the nature, length, and complexity of the communication at issue;
    3. the context in which the communication is taking place; and
    4. as applicable to the provision of Qualified Interpreters, the circumstances and criteria described in Paragraphs 34-36.

Consistent with Section 1557, Backus Hospital also will give primary consideration to the request of a Patient or Companion who is deaf or hard of hearing.

31. Documentation of Communication Assessment Relating to Provision of Auxiliary Aids and Services. Documentation of any assessment and determination as to the provision of auxiliary aids and services will be maintained in the Patient's medical records. Consistent with the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule, 45 C.F.R. Parts 160 and 164, Backus Hospital shall label or make a notation in the Patient's record to alert Backus Hospital personnel to the fact that the Patient or Companion is deaf or hard of hearing and will take appropriate steps to ensure that all Backus Hospital personnel reasonably likely to have contact with a Patient or a Companion are made aware of the auxiliary aid or service(s) that have been identified as necessary to communicate effectively with the Patient or Companion.
32. Determination Not to Provide Requested Auxiliary Aid or Service. If, after conducting the assessment as described in Paragraph 30 of this Agreement, Backus Hospital determines that it will not provide a particular auxiliary aid or service requested by a Patient or Companion who is deaf or hard of hearing based on undue financial or administrative burden or because an equally effective auxiliary aid or service is available, Backus Hospital personnel shall so advise the individual requesting the auxiliary aid or service, provide a copy of its grievance procedure, and secure a means of effective communication in a timely manner. Backus Hospital shall document the basis for the determination, including the date of the determination, the name and title of the Backus Hospital personnel who made the determination, and the alternative auxiliary aid or service, if any, that Backus Hospital decided to provide, in the Patient's record, as set forth in Paragraph 31. A copy of this documentation shall be provided to the Patient or Companion upon request through the Health Information Department.
33. Redetermination and Subsequent Visits. Backus Hospital shall reassess its determination of which appropriate auxiliary aids and services are necessary, in consultation with the Patient or Companion, regularly throughout the visit to ensure effective communication, and promptly after a Patient or Companion indicates that communication is not currently or has not been effective. Backus Hospital will document in the Patient's medical records any instance where a Patient or Companion indicates that the auxiliary aids and services provided by Backus Hospital have not been effective; any reassessment; and the results of any redeterminations. With respect to any subsequent visits, Backus Hospital will consult the Patient's records to review what, if any, auxiliary aids or services may be necessary without requiring additional assessments or requests for the appropriate auxiliary aids and services by the Patient or Companion, unless the Patient or Companion indicates otherwise.
34. Circumstances Under Which Qualified Interpreters Will Be Provided. Backus Hospital shall provide Qualified Interpreters, on-site or through a VRI service, to Patients and Companions as necessary to ensure effective communication. The following are examples of circumstances and types of communication when it is likely necessary to provide a Qualified Interpreter:
    1. obtaining a Patient's medical history or description of symptoms and medical condition;
    2. discussing or explaining a Patient's diagnosis, current condition, prognosis, treatment options or recommendation for treatment;
    3. discussing or explaining procedures, tests, or treatments;
    4. discussing or explaining test results;
    5. discussing or explaining prescribed medications, instructions for how and when medication is to be taken, and possible side effects and interactions of medications;
    6. obtaining informed consent or permission for procedures, surgery, or other treatment options;
    7. communicating during treatment and testing;
    8. communicating during discharge or post-operative planning and instruction;
    9. providing mental health evaluations, group or individual therapy, counseling or other therapeutic activities, including, but not limited to, grief counseling and crisis intervention;
    10. providing information about blood or organ donations;
    11. explaining living wills or powers of attorney (or their availability);
    12. discussing complex financial or insurance matters;
    13. providing educational presentations, such as classes concerning birthing, nutrition, CPR, and weight management; and
    14. any other circumstance in which a Qualified Interpreter is necessary to ensure a Patient's rights provided by law.
35. Video Remote Interpreting (VRI) Services Assessment Criteria. In determining whether a Qualified Interpreter via VRI service is appropriate to provide effective communication, relevant factors include the following:
    1. the Patient or Companion is limited in his or her ability to see the video screen, either due to limited vision or the physical positioning of the Patient (e.g., lying in a prone position);
    2. the Patient or Companion has limited ability to move his or her head, hands, or arms;
    3. the Patient has cognitive limitations, loss of consciousness, or experiencing pain that limits his or her ability to communicate;
    4. there are multiple people speaking or the information exchanged is highly complex or fast-paced such that it impedes the Patient's or the Qualified Interpreter's ability to see or hear exchanges of information;
    5. the Patient or Companion may move repeatedly to areas of Backus Hospital that do not have a designated high-speed internet line;
    6. the Patient will be treated in a room where there are space restrictions; and
    7. whether the VRI can be provided in accordance with the performance standards described in Paragraph 36.
36. Standards for Providing Video Remote Interpreting (VRI). Whenever a Qualified Interpreter via VRI service is provided or used, Backus Hospital shall ensure that it provides the VRI service in accordance with the following standards:
    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 service.

Once the system is operating, Backus Hospital personnel shall ask the Patient or Companion whether the VRI service is meeting his or her communication needs and make a record of his or her response, in accordance with Paragraph 31. In the event that the Patient or Companion cannot communicate effectively using any VRI service Backus Hospital elects to acquire and offer, Backus Hospital shall make all reasonable efforts to locate an on-site Qualified Interpreter or other auxiliary aid or service that will provide effective communication; periodically inform the Patient or Companion of the status of those efforts; and document the concern and the steps taken to locate a Qualified Interpreter. For the duration of this Agreement, Backus Hospital will monitor the effectiveness of the VRI service and, if applicable, address any deviations with the VRI service provider.

37. Restricted Use of Adults Accompanying a Patient or Companion to Interpret or Facilitate Communication. Backus Hospital shall never require or coerce a Patient or Companion who is deaf or hard of hearing to bring another individual to interpret or facilitate communications between Backus Hospital personnel and such Patient or Companion. Backus Hospital shall not rely on an adult accompanying a Patient or Companion to interpret or facilitate communication except in either of the following circumstances:
    1. In an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available. This provision applies to exigent circumstances where any delay in providing immediate services to the individual could have life-altering or life-ending consequences and is not intended to obviate the obligation to provide a Qualified Interpreter or other auxiliary aids and services in typical and foreseeable emergencies that are part of the normal operations of a hospital.
    2. If a Patient or Companion who is deaf or hard of hearing specifically requests that the accompanying adult interpret or facilitate communication, the accompanying adult agrees to provide such assistance, and reliance on that person for such assistance is appropriate under the circumstances. In such circumstances, Backus Hospital shall advise the Patient or Companion that the full range of auxiliary aids and services is available without charge and shall give appropriate consideration to any relevant issues and concerns that may arise, such as privacy and confidentiality. Backus Hospital will document such a request in the Patient's medical record. This provision in no way lessens Backus Hospital's obligation to provide appropriate auxiliary aids and services as required by this Agreement.
38. Restricted Use of Minors to Interpret or Facilitate Communication. Backus Hospital shall not rely on a minor accompanying a Patient or Companion to interpret or facilitate communications between Backus Hospital personnel and a Patient or Companion except in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available.
39. Timeframe for Providing Qualified Interpreters. Backus Hospital shall ensure that it provides Qualified Interpreters in a timely manner, as set forth below.
    1. Request for Qualified Interpreter for a non-scheduled incident. For all non-scheduled incidents, such as visits to the Emergency Department, Backus Hospital will provide a Qualified Interpreter, via an on-site appearance or VRI service, as soon as practicable after a request or determination that a Qualified Interpreter is necessary, but no later than (i) within two and a half (2.5) hours when providing an on-site interpreter, or (ii) within thirty (30) minutes when providing VRI. Between the time when a Qualified Interpreter is requested and when a Qualified Interpreter is made available, Backus Hospital personnel will inform the Patient or Companion of the current efforts being taken to secure a Qualified Interpreter and continue to communicate with the Patient or Companion who is deaf or hard of hearing for such purposes and to the same extent as they would have communicated with the person but for the disability, using the most effective means of communication available where appropriate. Notification of the efforts to secure a Qualified Interpreter does not lessen Backus Hospital's obligation to provide a Qualified Interpreter as required by this Agreement. Efforts to communicate with the Patient or Companion in the interim shall not involve the use of accompanying adults or minors to interpret or facilitate communication, except under the limited circumstances specified in Paragraphs 37 and 38.
    2. Request for Qualified Interpreter for scheduled events. For all scheduled events when there are four (4) or more hours before the time when an interpreter is requested or determined to be necessary, Backus Hospital shall make a Qualified Interpreter available at the time of the scheduled event. If an interpreter fails to arrive for the scheduled appointment, upon notice that the interpreter failed to arrive, Backus Hospital will take reasonable steps to locate another Qualified Interpreter as soon as they are made aware that the requested interpreter will not be provided.
    3. Throughout Hospitalization. Backus Hospital will continue to provide Qualified Interpreters to Patients and Companions admitted to Backus Hospital, throughout their hospitalization, as may be necessary for effective communication for the circumstances and types of the communication between the Patient and Backus Hospital personnel, as described in Paragraph 34. Patients will not be required to renew requests for Qualified Interpreters for these events.

Backus Hospital will monitor the response times for each request for a Qualified Interpreter. Any deviations from the applicable response times will be documented as described in Paragraph 40, and, if applicable, addressed with the interpreting service provider.

40. Auxiliary Aid and Service Monitoring Data. Within forty-five (45) calendar days of the Effective Date of this Agreement, Backus Hospital shall document and maintain a record or records of each request for a Qualified Interpreter on site or through VRI, recording the time and date of the request; the name of the individual who made the request; the name or other identifier of the individual for whom the auxiliary aid or service is being requested (if different from the requestor); the specific auxiliary aid or service requested; the time and date of the request and, if applicable, the scheduled event; the time and date the auxiliary aid or service was provided, noting any deviation from the applicable response times set forth in Paragraph 39; the type of auxiliary aid or service provided if different from what was requested; and, if applicable, a statement and explanation as to why the requested auxiliary aid or service was not provided, including a description of any alternative auxiliary aid or service provided by Backus Hospital. Such records will be maintained for the Duration of this Agreement.
41. Notice of Nondiscrimination and Availability of Auxiliary Aids and Services. Backus Hospital shall continue to notify Patients, Companions, Backus Hospital personnel, and the public, including individuals who are deaf or hard of hearing and individuals who are blind or have low vision, of the rights and protections afforded by the ADA, Section 504, or Section 1557 by posting a Nondiscrimination Notice that includes the following:
    1. that it does not discriminate on the basis of disability in its programs and activities;
    2. that it provides auxiliary aids and services, free of charge and in a timely manner, to ensure effective communication with individuals with disabilities, including Qualified Interpreters and written information in alternate formats (large print, audio, accessible electronic formats, other formats);
    3. information on how to obtain auxiliary aids and services;
    4. the identity of, and contact information for the Civil Rights Coordinator designated pursuant to Paragraph 43;
    5. the availability of the grievance procedure and how to file a grievance; and
    6. information on how to file a civil rights complaint with OCR.
42. Training of Backus Hospital Personnel. To ensure compliance with this Agreement and the law as it relates to the provision of auxiliary aids and services, Backus Hospital agrees to conduct the following trainings. Backus Hospital shall maintain copies of the training materials and attendance records for each training.
    1. Backus Hospital Personnel. Except for affiliated physicians and non-employed members of Backus Hospital's medical staff, as provided for in subparagraph 42(b), Backus Hospital will provide mandatory training for all Backus Hospital personnel no later than September 1, 2022, and on an annual basis thereafter for the duration of this Agreement. Each training will be of sufficient duration and content to train Backus Hospital personnel in the following areas relative to their responsibilities for coordinating or providing patient care:
       1. the requirement to ensure effective communication with Patients and Companions who are deaf or hard of hearing, are blind or have low vision, or have a speech disability;
       2. procedures to promptly identify communication needs of individuals who are deaf and hard of hearing, including determining what types of auxiliary aids and services are necessary and assessing when certain auxiliary aids and services are effective in different circumstances;
       3. procedures to promptly obtain auxiliary aids and services, including how to quickly and efficiently set up and operate VRI, and the appropriate steps to take when efforts to obtain auxiliary aids and services are unsuccessful or communication is not effective;
       4. procedures for documenting communication assessments and requests for auxiliary aids and services in the Patient's record, where appropriate;
       5. the availability and proper use of auxiliary aids and services to communicate by telephone for individuals who are deaf or hard of hearing, including the use of video relay services (VRS) and text telephones (TTY);
       6. Backus Hospital's grievance procedure; and
       7. any other applicable requirements of this Agreement.
    2. Backus Hospital Affiliated Physicians and Medical Staff. Within ninety (90) calendar days of the Effective Date of this Agreement, and on an annual basis thereafter for the duration of this Agreement, Backus Hospital will provide training at a quarterly medical staff meeting of sufficient duration and content to advise medical staff of Backus Hospital's obligation to ensure effective communication with Patients and Companions who are deaf or hard of hearing, are blind or have low vision, or have a speech disability and Backus Hospital's policy and procedures to ensure effective communication with Patients and Companions in the areas relative to their responsibilities in providing medical services.
    3. New Backus Hospital Personnel or other Hospital Personnel. Within sixty (60) calendar days of their start date at Backus Hospital, all new Backus Hospital personnel will receive training regarding the availability and use of auxiliary aids and services for Patients and Companions, and regarding the process for assessing the need for such services and the process for obtaining same. Other Backus Hospital personnel in positions or departments not previously identified herein shall be provided with comparable training as necessary. A screening of a video of any of the trainings provided above will suffice to meet this obligation.

B. Other Nondiscrimination Obligations

43. Designation of Civil Rights Coordinator. Within fifteen (15) calendar days of the Effective Date of this Agreement, Backus Hospital shall designate at least one employee to be responsible for:
    1. the coordination of Backus Hospital's efforts to comply with the ADA, Section 504, and Section 1557;
    2. the investigation of any grievance communicated to Backus Hospital alleging discrimination on the basis of disability;
    3. knowing where auxiliary aids are stored and how to operate any auxiliary aid;
    4. the maintenance, repair, replacement, and distribution of any auxiliary aid;
    5. providing a contact person available twenty-four (24) hours a day, seven (7) days a week, to answer questions and provide appropriate assistance regarding immediate access to, and proper use of, the appropriate auxiliary aids and services, including Qualified Interpreters, from Backus Hospital personnel, Patients, and Companions; and
    6. Backus Hospital's compliance with the terms of this Agreement set forth herein, including coordinating and/or conducting trainings, maintaining records, providing compliance reports, and creating and modifying policies and procedures.
44. Retaliation and Coercion. Backus Hospital shall not retaliate against or coerce in any way any person who made, or is making, a complaint, or exercised, or is exercising, his or her rights under the ADA, Section 504, or Section 1557, or who has assisted or participated in the investigation of any matter covered by this Agreement.

VI. Release and Remuneration for Complainants

45. Release by Complainant. Within fourteen (14) calendar days of the Effective Date of this Agreement, DOJ shall deliver to counsel for Backus Hospital a release signed by the Complainant.
46. Compensatory Relief for Complainant. Within fifteen (15) calendar days of receiving the Complainant's signed release, Backus Hospital shall compensate the Complainant pursuant to 42 U.S.C. § 12188(b)(2)(B) and 28 C.F.R. § 36.504(a)(2) in the following amount: $7,500. This settlement is for matters that the Complainant could have pursued under Title III of the ADA. Backus Hospital will not withhold taxes from the monetary award, and the Complainant, through the signed release, will accept full responsibility for taxes due and owing, if any, on such funds. Backus Hospital will issue to the Complainant an IRS Form 1099 reflecting the amount paid. Nothing in this Paragraph or any other provision of this Agreement constitutes an agreement by DOJ concerning the characterization of the Compensatory Relief for purposes of the Internal Revenue laws, Title 26 of the United States Code.

XI. Reporting and Monitoring

47. Unless otherwise provided, all payments, notices, reports or other such documents required by this Agreement shall be submitted to DOJ by U.S. Mail at the following address:
    
    Office of the United States Attorney
    1000 Lafayette Blvd., 10th Floor
    Bridgeport, CT 06604
    Attn: Brenda Green
    
    Unless otherwise provided, all notices, reports or other such documents required by this Agreement shall be submitted to the HHS Office for Civil Rights, New England Region, by email to [email protected].
48. Records. Backus Hospital shall maintain appropriate records to document the information required by this Agreement, and shall make them available, upon request, to DOJ and OCR, throughout the duration of this Agreement.
49. Complaints. For the duration of this Agreement, Backus Hospital shall notify DOJ and OCR if any person files a lawsuit, written complaint or formal charge against Backus Hospital with a state or federal agency, alleging that Backus Hospital failed to provide auxiliary aids or services to deaf or hard of hearing Patients or Companions or otherwise failed to ensure effective communication with such Patients or Companions. Such notification must be provided in writing, as provided in Paragraph 47, within twenty (20) calendar days of the date Backus Hospital receives notice of the allegation and must include, at a minimum, the nature of the allegation, the name of the person making the allegation, and any relevant documentation possessed by Backus Hospital regarding the investigation Backus Hospital will reference this provision of the Agreement in the notification to DOJ and OCR.
50. Compliance Report. Backus Hospital shall provide an initial written report ("Compliance Report") to DOJ and OCR regarding the status of its compliance with this Agreement within twelve (12) months of the Effective Date of this Agreement and a second Compliance Report twenty-two (22) months after the Effective Date of this Agreement (covering the preceding ten-month period).
51. Required Content for Compliance Reports. Each Compliance Report shall include appropriate documentation of the steps Backus Hospital has taken to comply with each term of this Agreement, including but not limited to:
    1. any revised policies and procedures;
    2. the distribution of policies and procedures;
    3. the training required by this Agreement, including the training materials and attendance records;
    4. a list of any grievances and/or complaints filed by Patients or Companions regarding the provision of auxiliary aids or services or allegations of discrimination on the basis of disability, including a description of the allegations, the date filed, the status and/or outcome of each grievance or complaint, and a copy of the grievance itself;
    5. a report describing how Backus Hospital monitors the timeliness of providing Qualified Interpreters as set forth in Paragraph 39, and the effectiveness of providing VRI services as set forth in Paragraph 36; and
    6. a report containing the monitoring data described in Paragraph 40.

XII. Enforcement

52. Duration of this Agreement. This Agreement shall terminate in two (2) years from its Effective Date.
53. Compliance Review and Enforcement. DOJ and OCR may review compliance with this Agreement at any time. If DOJ and OCR believe that Backus Hospital has failed to comply with this Agreement, it will notify in writing Backus Hospital and the Parties will attempt to resolve the issue(s) in good faith. DOJ and OCR will allow Backus Hospital sixty (60) calendar days from the date it notifies Backus Hospital to cure said failure to comply. If DOJ and OCR determine it is unable to reach satisfactory resolution of the issue(s), DOJ and OCR may take any action authorized by law to secure compliance with Title III of the ADA, Section 504, and Section 1557, including instituting a civil action in U.S. District Court to enforce the terms of this Agreement.
54. The Parties will not, individually or in combination with one another, seek to have any court declare or determine that any portion of this Agreement is invalid, illegal, or unenforceable. In the event that a court of competent jurisdiction determines that any provision of this Agreement is unenforceable, such provision shall be severed from the Agreement and all other provisions shall remain valid and enforceable; provided, however, that if the severance of any such provision materially alters the rights or obligation of the Parties, 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 obligation initially intended to them hereunder.

XIII. Other Provisions

55. In consideration of the terms of this Agreement, DOJ and OCR agree to refrain from undertaking further investigation or taking steps toward instituting a civil suit or administrative action in DOJ # 202-14-185 and OCR # 17-251554 against Backus Hospital based on the allegations lodged against Backus Hospital, except as provided in Paragraph 53. Except as related to the above-mentioned complaints, nothing contained in this Agreement is intended or shall be construed as a waiver by DOJ and OCR of any right to institute proceedings against Backus Hospital for other violations of any statutes, regulations, or rules administered by DOJ and OCR or to prevent or limit the rights of DOJ and OCR to obtain relief under the ADA, Section 504, or Section 1557 for allegations not related to this Agreement
56. This Agreement does not constitute a finding by DOJ and OCR that Backus Hospital is in full compliance with the ADA, Section 504, and Section 1557. This Agreement is not intended to remedy any other potential violations of the ADA, Section 504, Section 1557, or any other law that is not specifically addressed in this Agreement, including any other claims for discrimination on the basis of disability. Nothing in this Agreement relieves Backus Hospital of its continuing obligations to comply fully with the requirements of the ADA, Section 504, and Section 1557.
57. Nothing in this Agreement shall be construed or deemed as an admission by Backus Hospital of any liability or fault regarding any of Complainant's factual allegations that Backus Hospital engaged in any wrongful or illegal activity, that any of DOJ and OCR's allegations are true, or that any person suffered any injury as a result of the events as alleged by DOJ and OCR, and nothing in this Agreement shall be construed as a waiver by Backus Hospital to defend against any allegation claiming that Backus Hospital violated any statutes, regulations, or rules administrated by DOJ and OCR or to prevent or limit the right of these entities to challenge any claim alleging noncompliance under the ADA, Section 504, or Section 1557. 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 Backus Hospital except in an action challenging Backus Hospital's compliance with this Agreement.
58. Entire Agreement. This Agreement constitutes the entire agreement between the Parties on the matters raised herein, and no prior or contemporaneous 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, including attachments, is enforceable. This Agreement can only be modified by mutual written agreement of the Parties.
59. Changing Circumstances. During the term of this Agreement, there may be a change in circumstances such as, for example and without limitation, an increased or decreased availability of Qualified Interpreters or developments in technology to assist or improve communications with persons who are deaf, deaf-blind, or hard of hearing. If Backus Hospital determines that such changes create opportunities for communicating with Patients and Companions more efficiently or effectively than is required under this Agreement, or create difficulties not presently contemplated in the provision of auxiliary aids and services, Backus Hospital may propose changes to this Agreement by presenting written proposals to DOJ and OCR. Such changes will then be made to the Agreement if DOJ and OCR upon review, grants its approval in writing, which approval will not be unreasonably withheld or delayed.
60. Binding. This Agreement is final and binding on Backus Hospital, including all principals, agents, executors, administrators, representatives, employees, successors, and assigns. In the event that Backus Hospital seeks to sell, transfer, or assign substantially all of its assets or a controlling membership position in Backus Hospital during the term of this Agreement, then, as a condition of such sale, transfer, or assignment, Backus Hospital will obtain the written agreement of the successor, buyer, transferee, or assignee to all obligations remaining under this Agreement for the remaining term of this Agreement.
61. Non-Waiver. Failure by DOJ or OCR to seek enforcement of any provision of this Agreement is not a waiver of the agencies' respective right to enforce any provision of this Agreement.
62. Headings. The headings in this Agreement are for convenience only and shall not affect in any way the language of the provision to which they refer.
63. Execution of Agreement. The undersigned represent that they have been fully authorized to enter into and execute this Agreement under the terms and conditions contained herein. This Agreement may be executed in counterparts.
64. Publication or Disclosure of Agreement. DOJ and OCR place no restriction on the publication of the Agreement. In addition, DOJ and OCR may be required to disclose material related to this Agreement to any person upon request, consistent with the requirements of the Freedom of Information Act, 5 U.S.C. § 522, and its implementing regulation, 45 C.F.R. Part 5.

AGREED BY THE PARTIES:

FOR WILLIAM W. BACKUS HOSPITAL:

____________________________________________________ Dated: ________________
Name
Title
William W. Backus Hospital

FOR THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES:

____________________________________________________ Dated: ________________
Susan Pezzullo Rhodes
Regional Manager, New England Region
Office for Civil Rights, Room 1875
JFK Federal Building
Boston, MA 02203

FOR THE UNITED STATES DEPARTMENT OF JUSTICE:

Leonard C Boyle
Acting United States Attorney for the District of Connecticut

____________________________________________________ Dated: ________________
Brenda Green, Esq.
Assistant United States Attorney