SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND MOUNTAIN STATES HEALTH ALLIANCE UNDER THE ADA

C. Qualified Interpreters

42. 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, MSHA 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 MSHA 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 specifically requests that the family member, companion, case manager, advocate, or friend facilitate communication, the family member, companion, case manager, advocate, or friend is an adult and agrees 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 MSHA’s obligation to provide appropriate Auxiliary Aids and Services as required under this Settlement Agreement.

43. Circumstances Under Which Interpreters Will Be Provided. Depending on the complexity and nature of the communication, a qualified interpreter may be necessary to ensure effective communication for patients, companions, and visitors.  When an interpreter is needed, MSHA shall provide qualified sign language interpreters 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 an interpreter include, but are not limited to, the following:

44. Discussing a patient’s symptoms and medical condition, medications, and medical history;

45. Explaining medical conditions, treatment options, tests, medications, surgery and other procedures;

46. Providing a diagnosis and recommendation for treatment;

47. Communicating with a patient during treatment, testing procedures, and during physician’s rounds;

48. Providing Patients’ rights and obtaining informed consent for treatment;

49. Providing instructions for medications, post-treatment activities, and follow-up treatments;

50. Providing mental health services, including group or individual counseling for patients and family members;

51. Providing information about blood or organ donations;

52. Discussing powers of attorney, living wills, and/or complex billing and insurance matters;

53. During educational presentations, such as birthing or new parent classes, nutrition and weight management programs, and CPR and first-aid training;

54. Determining any condition or allergy of Patient that may affect choice of medication;

55. During blood donations or apheresis (removal of blood components);

56. Filing of administrative complaints or grievances against MSHA, MSHA personnel, or MSHA Affiliated Physician(s); and

57. Any other circumstance in which a qualified sign language interpreter is necessary to ensure a Patient’s rights provided by law.

58. Chosen Method for Obtaining Interpreters. Within 60 days after execution of this Agreement, MSHA will identify at least two interpreter services for each hospital facility and will make appropriate arrangements with said services to provide qualified on-site interpreters in a timely manner at any time of the day or night, as well as VRI services, at the request of the MSHA hospital and as required by Paragraph 38 and Paragraph 39.

59. Provision of Interpreters in a Timely Manner.

60. 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 MSHA hospital for examination or treatment.  For non-scheduled interpreter requests, MSHA personnel will complete the assessment described in Paragraph 26 and Paragraph 27 above.  The interpreter shall be provided no more than (a) two hours from the time the MSHA hospital completes the assessment if the service is provided through a contract interpreting service or a staff interpreter who is located off-site or (b) if such an interpreter cannot be provided within such two (2) hour window, thirty (30) minutes from the time the MSHA hospital completes the assessment if the service is provided through a VRI service as described in Paragraph 39 below.  Deviations from this response time will be addressed with the interpreting service provider, and if necessary, any issues regarding difficulty of meeting this response time will be discussed with the U.S. Attorney’s Office.

61. 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, MSHA personnel will complete the initial communication assessment described in Paragraph 26 and Paragraph 27 above in advance of the first visit, and, when an interpreter is appropriate, the MSHA hospital 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, the MSHA hospital will immediately call the interpreter service(s) to inquire as to the status of the interpreter and will convey this information to the deaf patient or companion.  In the event that every service with whom the MSHA hospital has a contract pursuant to Paragraph 37 has stated that it cannot provide an interpreter at the time of the scheduled appointment, the MSHA hospital will convey this information to the deaf patient or companion and offer him/her the option of either rescheduling the appointment for a time when a Qualified Interpreter can come on site or proceeding with VRI as described in Paragraph 39.

62. Data Collection on Interpreter Response Time and Effectiveness. MSHA 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 29, MSHA shall collect information regarding response times for each request for an interpreter.

63. Video Remote Interpreting (“VRI”). When using VRI services, MSHA 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 does 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, significant emotional distress, or significant pain, or due to space limitations in the room.  In the event that VRI does not function properly or fails for any reason, MSHA shall provide a different Auxiliary Aid or Service if VRI is not functioning properly after attempts to fix it have continued for thirty minutes (the “repair window”), unless the circumstances of the interaction (including, but not limited to, the medical condition of the Patient) or the need for effective communication requires a substitute Auxiliary Aid or Service immediately or at some time sooner than the thirty-minute “repair window” provided herein.  The issues with VRI that prevented it from functioning properly during any attempted use, as well as any repairs that were made to VRI and/or any efforts taken to avoid a similar situation from arising again in the future, should be documented and made part of the reporting requirements of this Agreement. 

64. Notice to Patients and Companions Who Are Deaf or Hard of hearing. As soon as MSHA hospital personnel have determined that a Qualified Interpreter is necessary for effective communication with a deaf or hard of hearing Patient or Companion, MSHA 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.  MSHA 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 MSHA’s obligation to provide Qualified Interpreters in a timely manner.

65. Other Means of Communication. MSHA agrees that between the time an interpreter is requested and the interpreter is provided, MSHA 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 MSHA’s obligation to provide Qualified Interpreters in a timely manner.