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

EQUITABLE RELIEF

A. Prohibition of Discrimination

28. Non-Discrimination. MSHA shall provide appropriate auxiliary aids and services, including qualified interpreters, where such aids and services are necessary to ensure effective communication with deaf and hard of hearing Patients and Companions.  Pursuant to 42 U.S.C § 12182(a), MSHA shall also provide deaf and hard of hearing Patients and Companions with the full and equal enjoyment of the services, privileges, facilities, advantages, and accommodations of the MSHA hospital as required by this Agreement and the ADA.

29. Discrimination by Association. MSHA 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.

30. Prohibition of Denial of Participation. MSHA shall not subject an individual or class of individuals on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.

31. Retaliation and Coercion. MSHA 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

32. Appropriate Auxiliary Aids and Services. Pursuant to 42 U.S.C. § 12182(b)(2)(A)(iii), MSHA 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 mandated in 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 38 of this Agreement.  MSHA will advise Patients and Companions who require Auxiliary Aids or Services that these are available throughout the Patient’s time at the MSHA hospital as requested by the Patient.

33. 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 the MSHA hospital personnel in consultation with the person with a disability whenever possible. The assessment made by MSHA 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 (see Paragraph 36 for guidance).  A Model Communication Assessment Form is attached to this Agreement as Exhibit A, and will be used by the MSHA hospital upon the effective date of this Agreement.  MSHA may develop a more comprehensive form similar to Exhibit A within 60 days of the effective date of this Agreement to be used at MSHA hospital facilities.  This new form will be subject to approval by counsel for the United States prior to implementation.

34. 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 a MSHA hospital, whichever is earlier.  Then, if determined that Auxiliary Aids and Services are necessary, MSHA hospital personnel will perform an assessment using the appropriate Auxiliary Aids and Services (see Paragraphs 25 and 26) 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 medical chart.  In the event that communication is not effective, MSHA 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.

35. ADA Administrators. MSHA hereby designates the House Supervisor, for the designated shift, at each MSHA facility as the ADA Administrator.  In the event a facility does not have a House Supervisor on duty, the Shift Leader for that facility, during that shift, will act as the ADA Administrator.  The House Supervisors, or their designee(s) in their absence, will be 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 MSHA hospital hereby designates its Compliance Officer, or his/her designee, as being responsible for their maintenance, repair, replacement, and distribution.  The MSHA hospital will circulate and post broadly within each MSHA 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 or hard of hearing.  The ADA Administrators will be responsible for the complaint resolution mechanism described in Paragraph 32 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 32.

36. Auxiliary Aid and Service Log. Each MSHA hospital will maintain a log, or a master log shall be maintained at a central location in MSHA Administration, which shall identify specific facilities 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 explaining why the auxiliary aid and service was not provided and the MSHA hospital staff who made the decision.  Such logs will be maintained at each hospital or at a central location in MSHA Administration which shall identify specific facilities, for the entire duration of the Agreement, and will be incorporated into the semi-annual Compliance Reports as described in Paragraph 51 of this Agreement.

37. Successive Patient Visits. MSHA shall, to the extent it has not already done so, implement policies and procedures to expedite arrangements for the provision of auxiliary aids and interpretive services when a Patient or Companion requests appropriate auxiliary aids or services for successive visits to MSHA hospitals. MSHA personnel shall keep appropriate records that reflect the provision of auxiliary aids and services to Patients and Companions, such as notations in Patients’ medical charts.  During a Patient or Companion’s successive visit, MSHA hospital personnel shall reference the individual’s prior medical records, where available, as part of the Communications Assessment.

38. Medical Equipment. Nothing in this Settlement Agreement shall require that an electronic device or equipment constituting an appropriate auxiliary aid be used when or where its use may interfere with medical or monitoring equipment or may otherwise constitute a threat to the patient’s medical condition.  This provision in no way lessens MSHA’s obligation to provide appropriate Auxiliary Aids and Services as required under this Settlement Agreement.

39. Complaint Resolution. MSHA 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.  MSHA will maintain records of all grievances regarding effective communication, whether oral or written, made to MSHA and actions taken with respect thereto.  At the time MSHA personnel complete the assessment described in Paragraph 26 and in Paragraph 27 and advise Patient and/or Companion of the determination of which appropriate Auxiliary Aids and Services are necessary, MSHA will notify Patients and/or Companions who are deaf or 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.

40. 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.

41. Record of Need for Auxiliary Aid or Service. MSHA will take appropriate steps to ensure that all MSHA 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.  When such a record is made, it should also note that responses to call lights should be automatically made in person and that intercoms or other similar systems of non-visual communication should not be used.

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.

D. Notice to the Public

66. Policy Statement. Within 60 days of the effective date of this Agreement, MSHA shall maintain signs of conspicuous size and print at all MSHA 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 appropriate contact information and shall contain language essentially similar to Exhibit B.  These signs will include the international symbols for “interpreters” and “TTYs.” 

67. Website. MSHA will include on its website the policy statement described above, conspicuously linked from the main website, currently at https://www.mountainstateshealth.com/

68. Patient Handbook. MSHA 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, video phones, 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 MSHA programs.

Please ask your nurse or other Hospital Personnel for assistance, or contact the appropriate person by calling  ______________ (voice or TTY).
MSHA shall also include a description of its complaint resolution mechanism in its Patient Handbook and on its website.

E. Notice to MSHA Personnel and MSHA Affiliated Physicians

69. Notice to MSHA Personnel and MSHA Affiliated Physicians. MSHA shall publish on its website a policy statement regarding MSHA’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 MSHA 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 reachable at ________________.

F. Training

70. Training of ADA Administrator(s). MSHA will provide mandatory training for the ADA Administrators within 60 days of the effective date of this Agreement as provided in Paragraph 28 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:

71. 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;

72. To secure Qualified Interpreter Services as quickly as possible when necessary;

73. To encourage medical staff members to notify MSHA 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 MSHA hospitals;

74. To use, when appropriate and typically as a last resort and not as a substitute for another more appropriate Auxiliary Aid or Service, flash cards and pictographs (in conjunction with any other available means of communication that will augment the effectiveness of the communication);

75. How and when to use VRI services;

76. Making and receiving calls through TTYs and the relay service; and

77. MSHA’s complaint resolution procedure described in Paragraph 32 of this Agreement.

78. Training of MSHA Hospital Personnel. MSHA will provide mandatory in-service training to all Hospital Personnel on an annual basis.

79. The training will address the needs of Patients and Companions who are deaf or hard of hearing and will include the following objectives:

80. To promptly identify communication needs of Patients and Companions who are deaf or hard of hearing;

81. To secure Qualified Interpreter services as quickly as possible when necessary; and

82. To use, when appropriate and typically as a last resort and not as a substitute for another more appropriate Auxiliary Aid or Service, flash cards and pictographs (in conjunction with any other available means of communication that will augment the effectiveness of the communication).

83. Such training must begin within 60 days and be completed within 120 days of the effective date of this Agreement.  MSHA will first target the training to front-line personnel, i.e., those people who are more likely to encounter patients and companions initially and/or consistently, such as people working in reception, admissions, triage, and other similar departments, with such training to be completed within 90 days of the effective date of this agreement.  The training of telephone operators is addressed in Paragraph 48.  In the event any MSHA Hospital Personnel are on leave during such training period, such personnel will be required to take such training within 60 days of his/her return to work.

84. New employees must be trained within 60 days of their hire.  A screening of a video of the original training will suffice to meet this obligation.  

85. Training of MSHA Telephone Operators. All MSHA Hospital Personnel who routinely receive incoming telephone calls from the public as part of their job description code will receive instructions by MSHA 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 MSHA of an ADA Administrator, as detailed in Paragraph 28 of this Agreement, and the complaint resolution process, as described in Paragraph 32 of this Agreement.  Such training must be completed within 60 days of the effective date of this Agreement and will be conducted annually thereafter.  In the event any MSHA Hospital Personnel are on leave during such training period, such personnel will be required to take such training within 60 days of his/her return to work.

86. Training Attendance Sheets. MSHA will maintain in electronic or paper form for the duration of this Agreement, confirmation of training conducted pursuant to Paragraph 46, Paragraph 47, and Paragraph 48 of this Agreement, which will include the names, respective job titles of the attendees, as well as the date and time of the training.

87. Training of MSHA Affiliated Physicians. MSHA 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 MSHA (admitting or surgical privileges, etc.) to complete computerized training.  This email will direct affiliated physicians to the MSHA web page which will include: (1) MSHA’s Policy Statement for persons working at MSHA hospitals as described in Paragraph 45 and any relevant forms; and (2) a request that physicians’ staff members notify MSHA 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 MSHA hospitals.

G. Reporting

88. Compliance Reports. Six months after the effective date of this Agreement, MSHA will provide a written report (“Compliance Report”) to the U.S. Attorney’s Office regarding the status of its compliance with this Agreement.  MSHA will provide a second Compliance Report upon the anniversary of the effective date of this Agreement.  If the U.S. Attorney’s Office determines that MSHA has been compliant with the provisions of this Agreement, additional reports will be due annually upon the anniversary date of this Agreement for the remainder of the term.  In the event the U.S. Attorney’s Office determines that MSHA has violated any of the terms of this Agreement, then Compliance Reports shall be due at six (6) month intervals for the remainder of the term.  The Compliance Report will include data relevant to the Agreement, including but not limited to:

89. The information required in Auxiliary Aid and Service Log described in Paragraph 29;

90. The number of complaints received by MSHA 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

91. Records of training conducted and employees in attendance at training.

MSHA 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.  This Compliance Report shall be applicable only to those hospitals in which MSHA has any ownership interest.  Such hospitals are set forth in Exhibit C, attached hereto and incorporated herein by reference.  In the event of a divestiture of any hospital to an unrelated third party, MSHA shall notify the U.S. Attorney’s Office and provide documentation confirming the divestiture and an updated Exhibit C, and the Compliance Report shall no longer include such hospital.  In the event of a divestiture to a new entity formed by MSHA or an MSHA affiliate or to an existing MSHA affiliate, then the Compliance Report shall continue to include such hospital.  In the event that MSHA acquires another hospital from an unrelated third party, MSHA shall notify the U.S. Attorney’s Office, provide documentation confirming the acquisition and an updated Exhibit C, and the Compliance Report shall include such hospital going forward.  In the event of an acquisition of a new facility by MSHA, the parties agree that MSHA shall have at least sixty (60) days after the effective date of the acquisition to implement necessary policies, procedures, and appointment of staff to ensure compliance with the terms set forth in this Agreement.  Training of the newly acquired facility staff shall begin upon the acquisition effective date and shall be completed in accordance with the time frames set forth in Section F hereinabove.  Any new equipment necessary to ensure compliance with the terms of this Agreement shall be acquired and ready for use as soon as practicable but no later than six (6) months after the acquisition effective date for VRI equipment and three (3) months after the acquisition effective date for all other equipment. 

92. Complaints. During the term of this Agreement, MSHA 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 any MSHA 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 30 days of the date MSHA 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 MSHA relevant to the allegation.  MSHA will reference this provision of the Agreement in the notification to the U.S. Attorney’s Office.

H. Compensatory Relief for Complainants and Release

93. The Cantrells and MSHA have reached their own agreement regarding the payment of compensatory damages, and they have agreed to keep that amount confidential as part of the consideration for their separate settlement agreement to resolve the Cantrells’ civil action.

94. MSHA’s counsel and the Cantrells’ counsel will be responsible for preparing a settlement agreement and release as between MSHA and the Cantrells for the payment and terms of the compensatory relief mentioned in Paragraph 53.

I. Payment of Civil Penalties to the United States

95. MSHA shall pay to the United States the sum of Fifty Thousand Dollars ($50,000.00) (“Civil Penalty Amount”) pursuant to 42 U.S.C. § 12188(b)(2)(C), no later than 60 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 Eastern District of Tennessee.

J. Other Provisions

96. Enforcement. The United States may review MSHA’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 MSHA, discuss those concerns with MSHA, 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 MSHA with written notice of any breach and allow MSHA 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, after such cure period, in the appropriate U.S. District Court to enforce this Agreement and/or Title III of the ADA.

97. 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 MSHA 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.

98. Entire Agreement. This Agreement, including Exhibit A, Exhibit B, and Exhibit C, constitutes the entire agreement between the United States and MSHA 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.

99. Binding. This Agreement is binding on MSHA, including all principals, agents, executors, administrators, representatives, employees, successors in interest, beneficiaries, and assignees.  In the event that MSHA 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, MSHA 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.  This Agreement shall not apply to any new corporation formed through a merger between MSHA and Wellmont Health Systems, or another health system.  However, even after such merger, if any, the obligations contained in this Agreement shall continue to apply to any currently existing MSHA hospitals for the duration of this Agreement, including the hospitals listed in Exhibit C, unless divestiture is established as provided in Paragraph 51.  The U.S. Attorney’s Office will be notified of any merger and provided with an updated Exhibit C, if applicable, and updated contact information in light of the merger.  

100. 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.

101. Signatory. The signatory for MSHA represents that he or she is authorized to bind MSHA to this Agreement.

102. Retaliation. MSHA shall not discriminate or retaliate against any person because of his or her participation in this matter.

K. Effective Date/Termination Date

103. Effective Date. The effective date of this Agreement is the date of the last signature below.

104. Duration. The duration of this Agreement will be three (3) years from the effective date of this Agreement.