RESOLUTION AGREEMENT
between
HHS/OFFICE FOR CIVIL RIGHTS
REGION IX
and
PHOENIX MEMORIAL HOSPITAL
Resolution Agreement
OCR DOCKET NUMBER 09-02-7004
09-02-7004
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I. BACKGROUND
A. In recognition of its responsibilities as a recipient of federal financial assistance from the U.S. Department of Health and Human Services (HHS), Phoenix Memorial Hospital (PMH) acknowledges that it is subject to Title VI of the Civil Rights Act of 1964 (Title VI), 42 U.S.C. 2000d et seq., and implementing HHS regulation, 45 CFR Part 80, which prohibits discrimination on the basis of race, color, and national origin by recipients of federal financial assistance. PMH also acknowledges that it is subject to Section 504 of the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. 794, and implementing HHS regulation 45 CFR Part 84, which prohibits discrimination based on disability.
B. The HHS Office for Civil Rights (OCR) reviewed PMH in order to assess its compliance with laws that prohibit discrimination based on national origin and disability in the provision of services to limited-English proficient (LEP) individuals and individuals who are hearing-
C. It is understood and agreed by OCR that PMHs’ agreement to take the steps outlined herein does not constitute an admission of a violation by PMH of Title VI, Section 504 or the implementing HHS regulations.
D. PMH acknowledges that this Resolution Agreement is predicated on assurances to HHS of its intention to act in full and complete compliance with Title VI, Section 504 and the implementing HHS regulations.
II. GENERAL PROVISIONS
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A. Effective Date. This Resolution Agreement becomes effective on the date of its execution by both parties.
B. Effect on Other Compliance Matters. This Resolution Agreement is unrelated to any other issues, reviews, or complaints that may be pending before OCR or any other federal agency regarding PMHs’ compliance with applicable statutes or regulations enforced by OCR or another agency. This Agreement does not preclude further OCR investigations or compliance reviews of PMH. Any compliance matters arising from subsequent or pending reviews or investigations will be addressed and resolved separately in accordance with the procedures and standards of the statute and implementing regulation applicable to the matter raised.
C. Prohibition Against Retaliation and Intimidation. PMH shall not intimidate, threaten, coerce, or discriminate against any individual because s/he has assisted OCR or participated in any manner in OCR’s review of the matter which is addressed in this Agreement.
D. OCR’s review of PMH’s Compliance with Agreement. OCR may, at any time, review PMH’s compliance with this Resolution Agreement. As part of such review, OCR may require PMH to provide written reports, and to permit OCR to visit PMH, interview witnesses, and examine and copy documents to determine if PMH is complying with the provisions of this Agreement. PMH agrees to retain the records required by OCR to assess its compliance with this Agreement and to submit the requested reports to OCR as specified below under Reporting Requirements.
E. Enforcement of Compliance with Agreement. If at any time OCR determines that PMH has failed to comply with any provision of this Agreement, OCR will notify PMH in writing. The notice shall include a statement of the basis for OCR’s decision and allow PMH 30 days to explain in writing the reasons for its actions. The time frame allowed for PMH’s response may be less than 30 days whenever OCR determines that a delay would result in irreparable injury to any alleged injured parties. If PMH does not respond to the notice, or upon review of PMH’s response, OCR finds that PMH has not complied with any provision of this Agreement, OCR may
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request the initiation of administrative or judicial enforcement proceedings pursuant to 45 CFR Section 80.6. If OCR makes such a determination, prior to commencing an investigation or enforcement action, OCR shall notify PMH of the deficiencies and allow PMH 45 days in which to correct the deficiencies or submit a plan of action to correct the deficiencies.
F. Non-Waiver Provision. Failure by OCR to enforce this entire agreement or any provision thereof with respect to any deadline or any other provision herein shall not be construed as a waiver of OCR’s right to enforce other deadlines and provisions of this Agreement.
G. Entire Agreement. This Agreement constitutes the entire agreement between PMH and OCR on the matter raised herein, and no other statement, promise or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written Agreement, shall be enforceable.
H. Technical Assistance. OCR shall provide PMH with appropriate technical assistance and guidance regarding the provisions of this Agreement, as necessary.
I. Publication or Release of This Agreement. OCR will release this Resolution Agreement and all related materials to any person upon request consistent with the terms of the Freedom of Information Act, 5 U.S.C. Section 552, and its implementing regulation 45 CFR Part 5.
J. Consideration. This Resolution Agreement is an enforceable contract. The promises, obligations, or other terms and conditions set forth in this Agreement constitute the exchange of valuable consideration between PMH and OCR. This Agreement may be modified only by mutual agreement of the parties in writing.
K. Authority of Signer. The signer of this document for PMH represents that he or she is authorized to bind PMH to this Agreement.
III. SPECIFIC PROVISIONS
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A. PMH shall revise its policies and procedures to ensure compliance with Title VI. PMH’s policies and procedures shall provide an interpreter to any person who is limited-English proficient (LEP) and is seeking services or information regarding health care delivery, appointments, social services, financial services, or any other service that PMH provides at its facilities or by telephone. "LEP persons" are individuals whose primary language is not English and who cannot speak, read, write or understand the English language at a level that permits them to interact effectively with PMH. PMH shall also revise its policies and procedures to ensure compliance with Section 504.
B. PMH’s policies and procedures shall prohibit the use of family members or friends as interpreters unless the patient wishes to do so after being informed that PMH will provide a competent interpreter at no cost to the patient. If the LEP and/or hearing impaired person declines PMH’s offer of an interpreter and instead requests that another person serve as his or her interpreter, PMH may use such other person as an interpreter if PMH’s staff reasonably ascertains that the person is willing and able to provide effective communication. PMH staff shall indicate in the patient’s record that an offer of an interpreter was made and declined and enter the name of the person serving as an interpreter at the patient’s request. PMH shall inform LEP and/or hearing impaired persons who have declined a PMH interpreter that they have a right to change their minds and request a PMH provided interpreter at any subsequent time. PMH shall prohibit the use of minors as interpreters. When PMH staff have reason to believe that an LEP and/or hearing impaired person’s preferred interpreter is hampering effective communication between PMH staff and a LEP and/or hearing impaired person, PMH shall provide interpreter services.
C. PMH shall post and maintain multi-lingual signs that state that interpreters are available upon request at no cost for any patient or any person assisting or representing a patient, if that person is necessary to providing patient care. The signs will be in languages frequently encountered in PMH’s service area, including, but not limited to, English and Spanish. PMH shall post the signs in prominent locations throughout its facility, including, but not limited to: the main entrance, social services office, financial services office, waiting areas, Emergency Room entrance, admitting desks, and all other first points of
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patient contact. These signs shall also inform clients of the existence of the complaint resolution procedure set forth in Section 0, below, and shall contain the name and phone number of the language assistance coordinator required by Section P, below.
D. PMH shall develop a multi-lingual poster, flash card, or other tool that allows persons with LEP and/or hearing impairments to identify themselves as such and request an interpreter in the individual’s primary language. This tool will be available in, but not limited to, the languages cited in Section C, above. Also, an LEP or hearing impaired patient’s record shall specify his/her primary language or hearing impairment. In order to alert PMH staff to an LEP or hearing impaired person’s primary language and/or hearing impairment and the need for using interpreter services, a distinctive mark or notation shall be made on the patient’s history or other record that accompanies him or her during treatment.
E. PMH shall maintain sufficient interpreter resources (meaning competent interpreters drawn from PMH’s bilingual staff, from outside agencies, from telephone interpreter services, etc.) to provide a timely response when interpreter services are necessary for effective communication in connection with treatment rendered by PMH and/or in order for an LEP and/or hearing impaired person to receive the full benefit of PMH services. PMH shall at all times have in place contracts or other arrangements with professional agencies that will promptly provide competent interpreter services when PMH bilingual staff are not available.
F. To the extent it has not already done so, PMH shall maintain a centralized record keeping system that assures the ready availability of data that includes the primary language of any such inpatient or outpatient who is an LEP person. The readily available data for each LEP patient encounter shall also include the source of any interpreter used (e.g. bilingual care provider, interpreter from a professional agency, interpreter from PMH’ s own list of approved interpreters, telephone interpreter services, individual interpreting at LEP person’s request, or other specified interpreter source) and the name of the interpreter (if available to PMH). If no interpreter is provided, the patient record shall indicate the reason and document any attempts made to obtain an interpreter.
G. PMH shall distribute this Resolution Agreement, OCR’s "LEP Guidance Memorandum," and OCR’s "Outline for Interpreter Procedures" to all department
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managers, including but not limited to, the Director of Human Resources, Director of Quality and Compliance, Director of Public Relations, Director of Pharmacy, Director of Womens and Childrens, Director of Nursing, Director of Emergency Services, and Nurse Managers.
H. PMH shall provide its LEP and TDD/TTY policies, procedures, resources, and interpreter lists to all staff who must communicate with or provide services to any inpatient, outpatient, family member, guardian, conservator, care giver, or domestic partner at PMH or by telephone, in addition to the officials cited in Section E., above.
I. At least annually, PMH shall assess: the current LEP makeup of its service area using Census data; the current communication needs of LEP persons; whether existing assistance meets LEP needs; whether staff is knowledgeable about policies and procedures and how to implement them; and whether sources of and arrangements for assistance are still current and viable. PMH shall establish a policy to review and re-issue its LEP and TDD/TTY policy and procedures annually, and whenever they are revised to ensure accuracy and continued regulatory compliance. PMH shall establish a policy to review and re-issue its listing of interpreter resources and volunteer interpreters semi-annually and whenever they are revised to ensure accuracy and continued regulatory compliance.
J. PMH shall establish a policy to provide training and provide a training regarding the provisions of this Agreement, its LEP policy and procedures, and its TDD/TTY policy and procedures to all staff who must communicate with or provide services to any inpatient, outpatient, family member, guardian, conservator, care giver, or domestic partner at PMH or by telephone, and to department managers. The training shall cover: (i) the importance of effective communication with LEP persons in the medical setting; (ii) how and when to assess an individual’s need for interpreter services and how to access appropriate language interpreter services; (iii) use of interpreters when PMH staff members receive incoming calls from, or make outgoing calls to LEP persons (e.g. when scheduling appointments); (iv) circumstances and conditions under which patient family members and companions may and may not be used as interpreters; (v) location and use of the TDD; (vi) the role of the senior level employee assigned to oversee compliance with Title VI, Section 504, and this Agreement; (vii) the impact of ethnic and cultural differences on effective communication and the need for sensitivity to diversity issues; and (viii) applicable record-keeping procedures and quality improvement reporting obligations.
K. For languages used in its service area, PMH shall develop and implement a policy and procedure for testing, evaluating, and certifying a minimum skill level for all
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employees who volunteer to be interpreters or who earn a bonus for using their bilingual skill or sign language skill. PMH shall take reasonable steps to screen employees that previously self-identified as bilingual and individuals placed on its list of interpreters to determine that they can fluently and accurately communicate in the language(s) in which they claim proficiency, are able to interpret effectively to and from such languages and English, and understand the obligation to maintain patient confidentiality. Employees who have not been tested shall be used only in emergency situations on a temporary basis when no other interpreter is available. The interpreter will then be tested as soon as possible. The interpreter list will include a notation marking all interpreters who PMH has evaluated. The interpreter list will also include a notation with respect to all interpreters’ knowledge of specialized (medical, financial, social services, etc.) or other terminology, as appropriate. When PMH staff have reason to believe that an interpreter from a professional agency, a telephone interpreter service, its bilingual staff or interpreter list is not qualified or properly trained to serve as interpreter, or is hampering effective communication between PMH staff and a LEP and/or hearing impaired person, PMH shall obtain another interpreter.
L. PMH shall establish a policy to provide annual in-service training to all staff volunteer interpreters regarding the role of the interpreter and that includes appropriate terminology and other vocabulary pertaining to the matter being discussed with patients and families in the health care setting.
M. PMH shall translate the following documents into languages frequently used in its service area: patient consent forms, patients’ rights, notices, discharge instructions, medication or pharmaceutical instructions, billing information, and grievance procedures. In addition, essential information from the patient handbook shall be translated. The documents cited in this section will be available in at least the languages listed in Section C, above.
N. PMH shall establish a policy stating that all written communication with patients, including, but not limited to discharge after-care instructions, appointment letters and test results, shall be in the patient’s primary language or shall include a statement, in the patient’s primary language, informing the patient to contact a designated, competent interpreter and the interpreter’s telephone number.
0. PMH shall establish a procedure for the resolution of complaints regarding the provision of language assistance that includes notifying patients of their right to file a complaint with facility staff and/or with HHS/OCR and the complaint filing procedure. The availability of this procedure shall be communicated through notices
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provided in the languages listed in Section C, above, and through the signs required in Section C, above.
P. PMH shall appoint a senior level employee responsible for overall coordination and oversight of its compliance with the Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, and this Agreement. The responsibilities of the senior level employee would include overseeing development and implementation of staff training on use of interpreter services, screening the qualification and training bilingual staff and the individuals on PMH’s own list of interpreters on confidentiality and interpreters’ ethics, receiving and responding to complaints regarding PMH’s provision of interpreter services, and related duties as assigned.
IV. REPORTING REQUIREMENTS
PMH shall submit documentation to OCR to demonstrate compliance with the terms of this Agreement. The report shall summarize the steps taken to implement each provision of this Agreement, with the names of the individual(s) responsible for implementation, and the date that each item was completed.
The items requested in this section are not intended to limit the information PMH may submit to OCR. PMH shall provide OCR with additional documentation as necessary, or as requested by OCR, to assure compliance with this Agreement.
Specific documentation requirements and time frames are as follows:
Within 30 days after this Agreement becomes effective, PMH shall submit to OCR:
(a) Drafts of all new policies and procedures, or changes to all existing policies and procedures, as required throughout Sections III A, B, I, L, N, and 0,
(b) Proof of the appointment of a senior level employee responsible for overall coordination and oversight of PMH’s compliance with the Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, and this
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Agreement, as required by Section III P,
Within 90 days after this Agreement becomes effective, PMH shall submit to OCR:
(a) Documentation that it has posted and will maintain multi-lingual signs that state that: interpreters are available upon request at no cost, inform clients of the existence of the complaint resolution procedure, include the name and phone number of the language assistance coordinator required by Section III C, supra. A copy of the sign shall be submitted to OCR.
(b) Documentation that PMH has developed a multi-lingual poster, flash card, or other tool that allows persons with LEP and/or hearing impairments to identify themselves as such and request an interpreter, as required in Section III D,
supra. A copy of poster, flash card, or other tool shall be submitted to OCR.(c) Proof that an LEP or hearing impaired patient’s record specifies his/her primary language and/or hearing impairment and the need for interpreter services, as required by Section III D,
supra.(d) Proof that PMH is maintaining sufficient interpreter resources to provide a timely response when interpreter services are necessary for effective communication. Documentation of any contracts or other arrangements with professional agencies that will promptly provide competent interpreter services when PMH bilingual staff are not available, as required in Section III E,
supra.Within 120 days after this Agreement becomes effective, PMH shall submit to OCR:
(a) Proof that it has distributed this Resolution Agreement, OCR’s "LEP Guidance Memorandum," and OCR’s "Outline for Interpreter Procedures" to all department managers, as required in Section III G,
(b) Proof that it has provided its LEP and TDD/TTY policies, procedures, resources, and interpreter lists to all staff who must communicate with or provide services to any inpatient, outpatient, family member, guardian, conservator, care giver, or domestic partner at PMH or by telephone, as required by Section III H,
supra.(c) Copies of the documents that have been translated into languages frequently used in PMH’s service area, as required by Section III M,
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Within 150 days after this Agreement becomes effective, PMH shall submit to OCR:
(a) A copy of the policy to provide training regarding the provisions of this agreement, its LEP policy and procedures, and its TDD/TTY policy and procedures to all staff who must communicate with or provide services to any inpatient, outpatient, family member, guardian, conservator, care giver, or domestic partner at PMH or by telephone, and to department managers, as required by Section III J,
(b) A copy of the policy developed and used to test, evaluate, and certify a minimum skill level for all employees who volunteer to be interpreters or who earn a bonus for using their bilingual skill or sign language skill, as required in Section III K,
supra. PMH shall also submit any documents used to educate, evaluate, or test bilingual proficiency.Commencing 180 days after this Agreement becomes effective, PMH shall maintain and provide upon request to OCR:
(a) The statistics from information gathered in Section III F,
I. SIGNATURES
PHOENIX MEMORIAL HOSPITAL
By___________________________________ Date: _______________________
HHS/OFFICE FOR CIVIL RIGHTS
By___________________________________ Date: _______________________
Ira C. Pollack, Regional Manager