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Americans with Disabilities Act Technical Assistance Letters

835

August 14, 2001

Vickie L. Dawes
Deputy County Counsel
Office of the County Counsel
Contra Costa County
651 Pine Street, 9th floor
Martinez, CA 94553-1229

                Re: ADA Complaint DJ # 202-11-69

Dear Ms. Dawes:

        The purpose of this letter is to inform you of our findings from the investigation of this complaint under the Americans with Disabilities Act of 1990 (ADA), and to offer to informally resolve some problematic areas.

        Contra Costa Regional Medical Center (Contra Costa) is a public entity covered by title II of the ADA, which prohibits disability-based discrimination. 42 U.S.C. ｧ 12132. Section 35.160(a) of the Department of Justice's title II implementing regulation requires that a public entity take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others. Section 35.160(b)(1) requires a public entity to furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity, and section 35.160(b)(2) requires that, when determining what type of auxiliary aid or service is necessary, a public entity must give primary consideration to the request of the individual with the disability.

        As you know, the complaint alleged that Contra Costa did not provide effective communication for xxxxxxxxxxx, who is deaf, during his treatment at Contra Costa from March 17-20, 1997. The Department expanded the scope of the investigation to review all of Contra Costa's systems for effective communication, including the provision of auxiliary aids and services, TDD's, captioned televisions, visual alarms, training, and public notice and education.

        As to the specific complaint, the Department did not find sufficient evidence to pursue this charge, but xxxxxxxxxxx advocate at Berkeley Place, a non-profit community organization with a Deaf/Disability Project, has indicate there is an ongoing problem at Contra Costa with providing xxxxxxxxx and other individuals qualified sign language interpreters.

        We have reviewed the information that you provided about Contra Costa's systems and technology for facilitating communication with patients and companions who are hearing or speech impaired. We believe they are adequate in fulfilling Contra Costa's legal obligations under the ADA with the following exceptions, including Contra Costa's policy and procedures for providing appropriate auxiliary aids to patients and companions who have hearing of speech impairments. Specifically, we find it imperative that Contra Costa implement a system to consult such persons in deciding how to achieve effective communication. Therefore, in order to resolve the complaint, the Department seeks that the following actions be undertaken at Contra Costa:

  1. Assessment
    The determination of which appropriate auxiliary aids and services are necessary, and the timing, duration and frequency with which they will be provided, shall be made by the Hospital Personnel who are otherwise primarily responsible for coordinating and/or providing patient care services, in consultation with the person with a disability, unless otherwise impossible. The assessment will take into account all relevant facts and circumstances, including without limitation the nature, length, and importance of the communication at issue, as well as the individual's communication skills, knowledge, the patient's health status or changes thereto, the reasonably foreseeable health care activities of the patient (e.g., group therapy sessions, medical tests or procedures, rehabilitation services, meetings with health care professionals or social workers, or discussions concerning billing, insurance, self-care, prognoses, diagnoses, history and discharge), and the availability at the required times, day or night, of appropriate auxiliary aids and services.
  2. Initial assessment.
    The initial assessment will be made at the time an appointment is scheduled or on the arrival of the patient or companion at the Hospital, whichever is earlier. Hospital Personnel will perform and document a communication assessment as part of each initial inpatient assessment that is required by the Joint Commission On Accreditation of Healthcare Organizations ("JCAHO"). Completion of communication assessments will be documented in the patient's record. Hospitals may use, but are not required to use, the Model Communication Assessment Form provided as an attachment to this letter.
  3. Ongoing assessments
    If a patient or a companion of a patient who is deaf or hard of hearing or who has a speech impairment has an ongoing relationship with the Hospital, the provision of appropriate auxiliary aids or services will be reconsidered as part of each routine assessment of an inpatient, or on a regular basis with respect to other patients and companions. Hospital Personnel shall keep appropriate records that reflect the ongoing assessments and communications with the patient, such as copies of hand written notes, interpreter fees, notations on patient's use of any and all auxiliary aids, etc, in the patient's file and/or record.
  4. Individual Notice In Absence of Request
    If a patient or a companion who is deaf or hard of hearing or who has a speech impairment does not request appropriate auxiliary aids or services but Hospital Personnel have reason to believe that such person would benefit from appropriate auxiliary aids or services for effective communication, the Hospital will specifically inform the person that appropriate auxiliary aids and services are available free of charge.
  5. TTY's in public areas, including signage and storage

    1. Contra Costa needs to make a TTY device available wherever a telephone is made available to the public (whether public pay telephone, public closed circuit telephone, or otherwise). Specifically, the Hospital should make a TTY device available in the 3rd Floor Lobby, 4th Floor Lobby, 5th Floor Lobby, and 3rd Floor IMCU/CCU Waiting Area. To satisfy this, Contra Costa can permanently install the required TTY's or make available a sufficient number of portable TTY's. Standards ｧｧ 4.1, 4.31.9. Each such TTY, whether permanently installed or portable, shall comply with the Standards set forth in Schedule A, attached.
    2. Wherever public telephones are available but TTY's are not permanently installed, Contra Costa should post signs complying with the Standards set forth in Schedule A. Such signs will indicate the location of the nearest portable or permanently installed TTY's.
    3. Portable equipment for use in public areas should be stored in places that are readily accessible to all Hospital Personnel who have client contact at all times of the day and night. All Hospital Personnel need to be notified of the storage location that is closest to their work area(s). The equipment is to be stored at the appropriate supervised location (e.g., nurses' station, admission desk, etc.) closest to the public phone for which the equipment is to be made available. Such equipment shall be made available to patients or companions who are deaf or hard of hearing or who have speech impairments as soon as practicable but no more than ten (10) minutes from the time of the person's request.
  6. Telephones in Patient Rooms
    Contra Costa should make 3 additional TTY's with printout capability available for patient room use. Contra Costa should make the TTY's available within thirty (30) minutes of a patient's arrival in a patient room, regardless of the hour of the day or night.Contra Costa will notify all relevant Hospital Personnel of the availability and location of this equipment.
  7. Visual Alarms
    In the Cafeteria where the Hospital has an audible alarm in place, it will add a visual alarm complying with the Standards set forth in Schedule B.
  8. Captioning and Decoders Instructions
    Clearly stated directions for use of the closed caption capability shall be in the Patient Handbook (or equivalent publication) or otherwise available in each patient room or public area containing a television with captioning capability. The directions for operating the closed caption function shall also accompany all closed caption decoders for standard television sets.
  9. Notice to Hospital Personnel and Physicians
    Contra Costa should adopt and distribute, in an appropriate form, a written policy statement regarding the Hospital's policy for effective communication with persons who are deaf or hard of hearing or who have speech impairments. The 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, relative, or a close friend or companion of a patient is deaf or hard of hearing or has a speech impairment, you must advise the person that appropriate auxiliary aids and services will be provided free of charge. 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 Program Administrator. This offer and advice must likewise be made in response to any overt request for appropriate auxiliary aids or services."

        Ms. Dawes, these provisions track the provisions of a much larger consent decree that concluded the Department's litigation against several Connecticut hospitals. As I have previously noted, the decree can be found at the Department's ADA Home Page at the following address: http://www.usdoj.gov/crt/ada/. As a by-product of that action, the Department last summer published a "pictogram" book to help hospital emergency rooms communicate with persons who are deaf as an interim measure, until more effective communication can be established. A press release concerning this project is attached. We hope to have that book available for purchase from the Government Printing Office by the end of this summer.

        Please call me within a week to schedule a time when we can discuss what I have proposed and timelines for achieving compliance. I invite you to make any suggestions so that we can resolve this complaint in a way that is meaningful for you and the government. Thank you for your cooperation to date, and I look forward to hearing from you soon. I can be reached at (202) 616-5576, by fax at (202) 305-9775 or by email at lisa.m.levine@usdoj.gov.


                                                                                                                Sincerely,

                                                                                                                Lisa M. Levine
                                                                                                                Investigator
                                                                                                                Disability Rights Section


Enclosures
          Schedules A & B
          Model Communication Assessment Form
          DOJ Press Release

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Updated August 6, 2015