Fort Washington Medical Center Letter of Findings
U.S. Department of Health and Human Services
Office for Civil Rights
Letter of Findings
Paul Porter, CEO
Fort Washington Medical Center
11711 Livingston Road
Fort Washington, Maryland 20744
(Complainant’s and other names and identifying information have been redacted throughout this document)
Dear Mr. Porter:
The Office for Civil Rights (OCR) of the Department of Health and Human Services (HHS) has completed its investigation of the complaint filed by the Washington Lawyers’ Committee for Civil Rights and Urban Affairs (complainant) on behalf of Redacted against Fort Washington Medical Center (FWMC or the covered entity). The complaint was referred to OCR by the United States Department of Justice on May 23, 2005. The complainant alleges that FWMC discriminated against Redacted on the basis of his disability (deafness) by failing to provide him with sign language interpreter services on Redacted, thereby denying him effective communication when he visited the emergency room.
Our investigation was conducted under the authority of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794 (Section 504), and its implementing regulation, codified at 45 C.F.R. Part 84. FWMC is a recipient of funds from HHS through the Medicare and Medicaid programs. As a recipient of Federal financial assistance, FWMC is obligated to comply with the law and regulation cited above. For the reasons discussed below, we find that FWMC violated Section 504 and its implementing regulation with respect to the issues raised in this complaint.
Redacted was born deaf. He lives with his wife, Redacted, who is not deaf, and several children.
According to the complaint, sometime in the evening of Redacted, Redacted began experiencing medical distress, including chest pains, dizziness, and blurred vision. His wife called an ambulance to transport him to FWMC, a 37-bed hospital located approximately five minutes by car from the Redacted home. Redacted sent her oldest son, 11 years old at the time, to the hospital with her husband so that she could remain home with their four other children. Redacted stated that as soon as the ambulance left, she called FWMC to inform emergency room staff that her husband would be arriving there and that he would need a hearing interpreter, and that the person who answered stated that an interpreter would be provided.
The medical record indicates that Redacted arrived at the FWMC emergency department at Redacted. His medical chart reflects that he was a deaf patient who was accompanied by his son, who is hearing. The chart also indicates that the son would “sign” (interpret) for the patient. Redacted told OCR, however, that, through his son, he informed the emergency room staff from the beginning that his son had problems interpreting for him and asked that staff provide an interpreter, but that the staff nonetheless kept using his son to interpret. The son informed OCR that he asked for an interpreter more than once and was told that one would be provided, but that none ever arrived. Staff asked him personal and medical information about his father, told him that there was something wrong with his father’s chest and asked whether his father could take a particular medicine. He stated that he fell asleep in the examining room, but that staff kept waking him up to interpret. Upon his father’s discharge, staff gave the father medication and a prescription, but did not say much about them.
The symptoms listed in the “triage” section of the medical chart are vomiting, headache and dizziness. Redacted underwent numerous diagnostic procedures, including a CAT Scan of the head, blood work and an EKG. He was discharged from the emergency room at Redacted. on Redacted, with a diagnosis of high blood pressure and vertigo. The discharge form states that the discharge instructions were given to the son and the patient and that both of them verbalized their understanding of the instructions. Redacted signed the discharge form.
On June 17, 2008, OCR conducted a site visit to interview FWMC staff and representatives of the hospital administration. We interviewed four senior representatives of the hospital administration; two staff nurses from the emergency room (one of whom had contact with Redacted); the emergency room physician who treated Redacted); and one admitting clerk. We reviewed medical records for Redacted and policies and procedures relating to the provision of services to persons who are deaf or hard of hearing. The policy in effect at the time of Redacted visit on Redacted stated that “the hospital will provide a qualified interpreter to a hearing impaired person to facilitate the delivery of quality patient care (emphasis added).” FWMC policy in effect at the time also listed the situations that require a qualified sign language interpreter: obtaining the patient’s medical history; obtaining informed consent or permission for treatment; diagnosing an ailment or injury; explaining the medical procedures to be used; explaining the reason for, how to take and the possible side effects of prescribed medications; and providing discharge instructions to the patient. FWMC policy also addressed the availability of Telecommunication Devices for the Deaf (TDDs), stating that one portable TDD will be maintained for patient use and a TDD line will be available in the Emergency Room.
Neither the treating physician nor the nurse who treated Redacted on Redacted has any recollection of his visit. What information they provided was based only on their review of Redacted patient chart notes. No other staff we interviewed had any information about or recollection of Redacted or his visit to FWMC. The medical staff expressed varying understandings about whether and under what circumstances it was appropriate to use family members for sign language interpretation. One staff nurse believed that staff would use family or friends until an interpreter arrived. Another staff nurse stated her belief that using family and friends to interpret was not permitted “anymore” unless the patient was all right with that. An admissions clerk stated that using family or friends would be all right if the patient wanted to use them. The attending physician in the emergency room on Redacted did not believe that it was necessarily frowned upon to use family or friends to interpret, and stated that it was appropriate in Redacted case because he presented at the emergency room with symptoms of a stroke, his care and treatment took priority, and they have to use what resources are available in that circumstance. While she did not state whether or not Redacted or his son asked for an interpreter that evening, the attending physician also stated that if a patient requested a sign language interpreter it would never be denied.
The FWMC administrators we interviewed also responded to questions concerning the provision of hearing interpreters generally and FWMC’s interaction with Redacted in particular. Referring to the policy that took effect in June 2008, the administrators stated that staff are instructed to ask deaf and hard of hearing patients, even those who bring interpreters with them, whether they want an interpreter, and to state that one will be called if requested. Two administrators stated that it takes a long time (at least two hours to two and one-half hours) for interpreters to arrive at the hospital. The administrators agreed that the patient may choose to use a friend or family member to interpret. None of the administrators had personal knowledge about the complainant’s visit to the emergency room on Redacted, but one described that situation as a “worst case scenario” which “slipped through the cracks.”
During our onsite visit we also inquired about dissemination of, and training on, new policies. Administrators explained that policies are posted in the emergency room and in admissions and at all triage and registrar desks, and that staff are trained at orientation and annually on the provision of services to persons who are deaf or hard of hearing. Some staff agreed, but one could not recall any training on that subject. One staff member felt that, because FWMC is a small hospital, training and distribution of new policies is done on a more informal basis; two staff members stated that policies are posted in the staff lounges and distributed by supervisors.
We also questioned the administrators about the availability of TDDs at FWMC. They informed us that there is one portable TDD, which is kept in the emergency room. If a patient needs the telephone at another location, staff can move it. There is no dedicated line for the TDD. Most staff believed, but were not sure, that the AT&T relay service is used.
In its initial data response, FWMC listed three agencies it uses as resources for obtaining sign language interpretation services: Sign Language Associates, Inc. of Silver Spring, Maryland; Southern Maryland Interpreting Services of White Plains, Maryland; and Professional Interpreter Exchange of Laurel, Maryland. On July 16, 2008, FWMC submitted an additional data response which states that it no longer uses Sign Language Associates, Inc. but continues to use the other two agencies. FWMC has no formal contracts with either entity. FWMC submitted copies of invoices for sign language interpreting services it has provided between March 2005 and July 2008 for deaf patients and the dates on which the services were provided:
(1) Professional Interpreter Exchange; 3/14/05 (ER)
(2) Sign Language Associates; 5/16/05 (ER) (Complainant)
(3) Professional Interpreter Exchange; 8/15/06 (ER)
(4) Southern Maryland Interpreting Services; 5/29/07 (ER)
(5) Professional Interpreter Exchange; 9/27/07 (ER)
Also in response to our data request, FWMC submitted “Interpretive Services for Patients with Hearing/Speech or Visual Impairments or Are Non-English Speaking” Fort Washington Medical Center Policy and Procedure Manual: Patient Rights Policy No. RI 100 (issued 8/91; revised 8/94, 8/96, 7/00, 12/00, 2/04, and 6/08). It states that signs will be posted in the admitting area, advising patients of the availability of free interpreter services (for persons who are deaf or hard of hearing and non-English speaking individuals). It also states that all patients will be screened to identify their communication needs.
LEGAL STANDARD AND ANALYSIS
The regulation implementing Section 504, at 45 C.F.R., §84.4 provides as follows:
(a) No qualified handicapped person, shall on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity which receives or benefits from Federal financial assistance.
(b) A recipient, in providing any aid, benefit, or service, may not, directly or through contractual, licensing or other arrangements, on the basis of handicap:
(i) Deny a qualified handicapped person the opportunity to participate in or benefit from the aide, benefit, or service;
(ii) Afford a qualified handicapped person an opportunity participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;
(iii) Provide a qualified handicapped person with an aid, benefit, or service that is not as effective as that provided to others.
45 C.F.R. §§ 84.4(a) and (b)(i)-(iii). The regulation, at 45 C.F.R. § 84.52, further provides:
(c) Emergency treatment for the hearing impaired. A recipient hospital that provides health services or benefits shall establish a procedure for effective communication with persons with impaired hearing for the purpose of providing emergency health care.
(d) Auxiliary aids. (1) A recipient to which this subpart applies that employs fifteen or more persons 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.
The regulation defines an individual with a disability as any person who “(i) has a physical or mental impairment which substantially limits one or more major life activities; (ii) has a record of such impairment, or (iii) is regarded as having such an impairment.” 45 C.F.R. §§ 84.3(j)(1)-(iii). Redacted deafness substantially limits his ability to hear. Hearing is a major life activity. Redacted is therefore a person with a disability as defined by this regulation.
A qualified person with a disability is one who meets the essential eligibility requirements for the receipt of such services. 45 C.F.R. § 84.3(k)(4). Redacted is a qualified person with a disability because he was admitted to the hospital’s emergency department as a patient and was therefore eligible to receive its services.
The complainant essentially alleges that, by failing to provide him with sign language interpreter services, FWMC failed to provide Redacted with appropriate auxiliary aids adequate to afford him effective communication during his visit to the emergency department on Redacted. We find that FWMC failed to provide Redacted with an appropriate auxiliary aid during that visit and thereby violated 45 C.F.R. § 84.52 (d).
The regulation requires covered entities to provide “appropriate auxiliary aids” where necessary to afford a deaf or hard-of-hearing person an equal opportunity to benefit from their services, 45 C.F.R. § 84.52(d). While Section 84.52 does not require the provision of a sign language interpreter where other methods will ensure the required effective communication, the record shows that FWMC offered no appropriate auxiliary aid during Redacted emergency room visit on Redacted. In this regard, none of the witnesses we interviewed stated that any FWMC staff present during Redacted’s visit attempted to use any other means of communicating with him. Nor is there any evidence that staff made a determination that no auxiliary aid was necessary. Indeed, there is no dispute between Redacted and FWMC that, from the outset, emergency room staff utilized Redacted then 11 year-old son to facilitate communication between Redacted and staff by interpreting for him using sign language.
Although FWMC apparently does not concede that Redacted requested a sign language interpreter, no person whom we interviewed who was present during Redacted visit to the emergency room on Redacted affirmatively disputes his claim that he requested one, or stated that he was offered an interpreter but declined the offer. The medical record is silent as well, except to note that his son was at bedside and interpreted for Redacted, a fact neutral on its face. The only evidence supporting FWMC’s position, the general statement of the attending physician (who had no specific recollection of the events in question) that an interpreter surely would have been provided if requested, is not enough to outweigh the undisputed combined testimony of Mr. and Mrs. Redacted and their son that all three asked FWMC for a sign language interpreter, and in the case of Redacted and his son, repeatedly asked for an interpreter during the course of their emergency room visit. OCR therefore concludes that a sign language interpreter was requested by and on behalf of Redacted, and that FWHC did not provide, or offer to provide, a qualified interpreter for that visit.
Even assuming that the use of Redacted son to interpret for Redacted during his Redacted visit resulted in “effective” communication, FWMC violated 45 C.F.R. § 84.52(d) because, in response to Redacted and his son’s requests for an interpreter, FWMC did not provide an interpreter or any other appropriate auxiliary aid or service or make a determination that an auxiliary aid or service was not necessary for effective communication. FWMC, not the patient, is responsible for providing a qualified sign language interpreter where an interpreter is necessary to ensure effective communication. Using Redacted 11year- old son to interpret does not constitute provision of an appropriate auxiliary aid. Once Redacted requested an interpreter and staff determined that sign language interpretation was the method by which it would communicate with him, FWMC became responsible for providing the interpreter.
FWMC’s failure to provide Redacted with an interpreter on Redacted was also inconsistent with FMCS’s policy in effect at that tine which required FWMC to provide a qualified interpreter. That policy sets forth “Situations Which Require a Qualified Interpreter:”
Obtaining the patient’s medical history;
Obtaining informed consent or permission for treatment;
Diagnosing an ailment or injury; Explaining the medical procedure(s) to be used;
Explaining the reason for, how to take and the possible side effects of prescribed medications; and
Providing discharge instructions to the patient.
All five situations were present during Redacted visit to the emergency room in Redacted; FWMC failed to provide an interpreter for any of them.
OCR finds that FWMC violated 45 C.F.R. §84.52(d) when it failed to provide an appropriate auxiliary aid during Redacted visit to the emergency room on Redacted. FWMC must come into compliance with Section 504 and its implementing regulation. FWMC has thirty (30) calendar days from the date of this letter to respond and forty-five (45) calendar days from the date of this letter to negotiate an acceptable Settlement Agreement with OCR. Failure to achieve a Settlement Agreement will result in a recommendation for enforcement action, which may include administrative proceedings to suspend, terminate or refuse to grant or continue HHS financial assistance to FWMC, or referral of the case to the United States Department of Justice for judicial proceedings to enforce the law.
We have enclosed a proposed Settlement Agreement for your consideration. The actions described in the attached Settlement Agreement fully address the issues raised in the complaint. Completion of these actions will ensure that FWMC is in compliance with Section 504 and its implementing regulation pertaining to the issues specifically addressed during this investigation.
No federally funded recipient or public entity or person may intimidate, threaten, coerce, discriminate or retaliate against anyone because he or she has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing held in connection with a complaint under the statutes or regulations enforced by OCR. The Complainant or any other individual who believes that he or she is being subjected to such discriminatory or retaliatory conduct because of filing a complaint with OCR or participating in the resolution of a complaint, may file a complaint with OCR concerning such conduct, which shall be handled under OCR’s investigative procedures.
Under the Freedom of Information Act, OCR may be required to release this letter and other information about this case upon request by the public. In the event that OCR receives such a request, OCR will make every effort, as permitted by law, to protect information that identifies individuals or that, if released, could constitute a clearly unwarranted invasion of personal privacy.
If you have any questions, please do not hesitate to contact me, or Ms. Maureen Carney of my staff, at (215) 861-4439, or by e-mail at Maureen.Carney@hhs.gov. Please be advised that communication by unencrypted e-mail presents a risk of disclosure of the transmitted information to, or interception by, unintended third parties. Please keep this in mind when communicating with us by e-mail. Thank you for your cooperation in this matter.
Paul F. Cushing