Settlement Agreement Between United States Department of Health and Human Services, Office for Civil Rights and San Juan Capestrano Hospital

I. BACKGROUND

A. Introduction

  1. The parties to this Settlement Agreement (“Agreement”) are:
    1. the U.S. Department of Health and Human Services (“HHS”), Office for Civil Rights (“OCR”) pursuant to its jurisdictional authority under Section 504 of the Rehabilitation Act of 1973, 29 United States Code (U.S.C.) § 794 et seq., and its implementing regulation, 45 Code of Federal Regulations (C.F.R.) Part 84 (“Section 504”) and Section 1557 of the Patient Protection and Affordable Care Act, 42 U.S.C. § 18116 and its implementing regulation, 45 C.F.R. Part 92 (“Section 1557”); and
    2. San Juan Capestrano Hospital (“SJCH”).

B. Investigation & Letter of Findings

  1. On January 29, 2021, a complaint was filed with OCR alleging that SJCH failed to provide the Affected Party, who was deaf and utilized Puerto Rican Sign Language (“PRSL”) as her primary means of communication, with qualified sign language interpreter services necessary for effective communication in connection with a court-ordered psychiatric evaluation.
  2. SJCH is a psychiatric hospital located in San Juan, Puerto Rico that provides rehabilitation, inpatient, and outpatient services to adolescents, adults, and seniors struggling with addiction and mental health issues.
  3. HHS initiated an investigation of the complaint in accordance with its  authority.  See 45 C.F.R. § 80.7 (incorporated by reference at regulatory provisions in effect at the commencement of investigation at 45 C.F.R. §§ 84.61,1 92.5).2
  4. HHS found that SJCH failed to provide the Affected Party with appropriate auxiliary aids and services where necessary to afford the Affected Party an equal opportunity to participate in and benefit from SJCH’s programs and activities in connection with a court-ordered psychiatric evaluation.  45 C.F.R. §§ 84.52(a)(1), (d) (Section 504 regulation in effect at the time of the alleged discrimination); 45 C.F.R. §§ 92.102(a), (b) (Section 1557 regulation in effect at the time of the alleged discrimination).  SJCH disputes HHS’s determination.
  5. Subject to the provisions set forth herein, this Agreement is the compromise of the disputed claims and resolves the OCR’s findings in the Letter of Findings dated September 12, 2024. 

  C. Purpose of Agreement

  1. Without admitting any fault and to resolve this matter expeditiously and without further burden of administrative proceedings, SJCH agrees to the terms stipulated in this Agreement and affirms that it will comply with all applicable provisions of Section 504, Section 1557, and their respective implementing regulations.  The promises, obligations or other terms and conditions set forth in this Agreement constitute the exchange of valuable consideration between SJCH and OCR.
  2. The actions described in this Agreement fully address the issues described in the complaint.  The Agreement shall not be deemed or construed to be an admission or evidence of any violation of any law or regulation or of any liability or wrongdoing on the part of SJCH, its parents, subsidiaries, affiliates, directors, officers, employees and/or agents.
  3. In consideration of the terms of this Agreement, HHS agrees to refrain from undertaking further enforcement action on Complaint # 21-411819, except as provided in Paragraph 52 of this Agreement.  HHS, however, may review SJCH’s compliance with this Agreement and/or Section 504 and Section 1557 at any time during the Duration of the Agreement.  Except as related to the facts alleged in the above-mentioned complaint, nothing in this Agreement shall be construed as a waiver by HHS of any right to institute enforcement proceedings against SJCH for violations of any statutes, regulations, or rules administered by HHS or to prevent or limit the right of HHS to obtain relief under Section 504 or Section 1557.

D. Jurisdiction

  1. HHS is responsible for investigating complaints and conducting compliance reviews to determine if recipients of HHS funding operate their programs and activities in compliance with Section 504 and Section 1557, and, where appropriate, negotiate and secure voluntary compliance agreements.  If noncompliance cannot be corrected by informal means, HHS may take any action authorized by law.  See 45 C.F.R. §§ 84.98 and 92.303(a) (incorporating 45 C.F.R. §§ 80.6-80.11).3
  2. SJCH is a recipient of financial assistance from HHS, through its participation in Medicare, Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq., and Medicaid, Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., and is, therefore, subject to the requirements of Section 504. 29 U.S.C. 794(a); 45 C.F.R. § 84.2.
  3. SJCH is also a health program or activity receiving financial assistance from HHS and is subject to the requirements of Section 1557.  42 U.S.C. § 18116(a); 45 C.F.R. § 92.2(a)(1).

II. DEFINITIONS

  1. For the purposes of this Agreement, the terms listed below shall have the following meaning:
    1. The term “Patient” shall be broadly construed to include any individual who is seeking or receiving health care services from SJCH’s facilities;
    2. The term “Companion” means a family member, friend, or associate of an individual seeking access to a service, program, or activity, who, along with the Patient, is an appropriate person with whom SJCH should communicate.  See 45 C.F.R. §§  84.77(a)(2) and 92.4;
    3. The term “Auxiliary Aids and Services” includes (1) Qualified interpreters on-site or through video remote interpreting (“VRI”) services; notetakers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (“TTYs”), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing; (2) Qualified readers; taped texts; audio recordings; Braille materials and displays; screen reader software; magnification software; optical readers; secondary auditory programs (“SAP”); large print materials; accessible electronic and information technology; or other effective methods of making visually delivered materials available to individuals who are blind or have low vision; (3) Acquisition or modification of equipment or devices; and (4) Other similar services and actions.  See 45 C.F.R. §§  84.10 and 92.4; and
    4. The term “Qualified Interpreter for an individual with a disability” means an interpreter who, via a video remote interpreting (VRI) service or an on-site appearance, is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary, terminology, and phraseology.  45 C.F.R. §§ 84.10 and 92.4.  Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators.  See 45 C.F.R. §§ 84.10 and 92.4.
    5. The term “Video remote interpreting (VRI) service” means a service means an interpreting service that uses video conference technology over dedicated lines or wireless technology offering high-speed, wide bandwidth video connection that delivers high-quality video images.  See 45 C.F.R. §§ 84.10, 84.77(d), and 92.4 (incorporating the definition for VRI at 28 C.F.R. 35.104).

III. OBLIGATIONS

A. Section 504 and Section 1557 Requirements

  1. Section 504 provides that no qualified individual with a disability shall, solely by reason of such disability, be excluded from participation in or be denied the benefits of or be subjected to discrimination in any program or activity receiving financial assistance from HHS.  See 29 U.S.C. § 794; see also 42 U.S.C. § 18116(a) (incorporating the protections of Section 504 into Section 1557).
  2. Federal regulations implementing Section 504 further provide that a covered entity may not, in providing an aid, benefit, or service, directly or through contractual or other arrangements, on the basis of disability, deny a qualified individual with a disability the opportunity to participate in or benefit from that aid, benefit, or service.  45 C.F.R. § 84.68(b)(1)(i).  Likewise, a covered entity may not, directly or through contractual or other arrangements, afford a qualified individual with a disability with an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded to others. 45 C.F.R. § 84.68(b)(1)(ii).  Nor may the covered entity provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result or to gain the same benefit or reach the same level of achievement as that provided to others.  45 C.F.R. § 84.68(b)(1)(iii).
  3. Federal regulations implementing Sections 504 and 1557 expressly require covered entities to take appropriate steps to ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others.  45 C.F.R. § 84.77(a)(1); see also 45 C.F.R. § 92.202(a) (incorporating into Section 1557 regulations the standards established by Department of Justice regulations located at 28 C.F.R. § 35.160(a)(1)).4 This includes an obligation to furnish appropriate auxiliary aids and services where necessary to afford qualified individuals with disabilities an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a covered entity.  See 45 C.F.R. §§ 84.77(b)(1) and 92.202(b).
  4. The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. 45 C.F.R. § 84.77(b)(2).  In determining what auxiliary aid or service is needed, a covered entity must give primary consideration to the requests of individuals with disabilities. Id. To be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.  Id.;  see also 45 C.F.R. § 92.202(a) (incorporating 28 C.F.R. § 35.160(b)(2)); 45 C.F.R. § 92.202(b).
  5. A covered entity has a duty to provide appropriate auxiliary aids and services when necessary to communicate with individuals with a disability unless it can demonstrate that doing so would fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens.  45 C.F.R. § 84.81; see also 45 C.F.R. § 92.202(a) (incorporating 28 C.F.R. § 35.164).
  6. In addition, a covered entity must not rely on an adult accompanying an individual with a disability to interpret or facilitate communication except in an emergency where there is no interpreter is available or where the individual with a disability specifically requests that the accompanying adult interpret or facilitate communication and reliance on that adult for such assistance is appropriate under the circumstances.  45 C.F.R. § 84.77(c)(2); see also 45 C.F.R. § 92.202(a) (incorporating into Section 1557 regulations 28 C.F.R. § 35.160(c)(2)).  A covered entity must not rely on a minor child to interpret or facilitate communication, except in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available.  45 C.F.R. § 84.77(c)(3); see also 45 C.F.R. § 92.202(a) (incorporating 28 C.F.R. § 35.160(c)(3)).
  7. Where a covered entity communicates by telephone with applicants and participants, text telephones (TTYs) or equally effective telecommunications systems shall be used to communicate with individuals who are deaf or hard of hearing or have speech disabilities.  45 C.F.R. § 84.78; see also 45 C.F.R. § 92.202(a) (incorporating 28 C.F.R. § 35.161).

B. General Non-Discrimination Obligations

  1. Nondiscrimination.  SJCH agrees to comply with the requirements of Section 504 and Section 1557, and their implementing regulations, including the following requirements:
    1. SJCH shall not exclude from participation in, deny the benefits of, or discriminate against any otherwise qualified individual with a disability in any of its program or activities.  29 U.S.C. § 794(a);  42 U.S.C. § 18116 (prohibiting discrimination on the grounds prohibited under Section 504);
    2. SJCH shall not deny a qualified individual with a disability the opportunity to participate in or benefit from its aid, benefit, or services on the basis of disability.  45 C.F.R. § 84.68(b)(1)(i); see also 45 C.F.R. § 92.101(a)(1) and (b)(1)(i); and,
    3. SJCH shall not utilize standards or criteria or methods of administration that have the effect of discriminating on the basis of disability.  See 45 C.F.R. §§ 84.68(b)(3) and 92.101(b)(1)(i).
  2. Retaliation and Coercion.  SJCH shall not retaliate against or coerce any person who made, or is making, a complaint or exercised, or is exercising, their rights under Section 504 or Section 1557, or who has assisted or participated in the investigation of any matter covered by this Agreement.  45 C.F.R. §§ 84.71; see also 92.303(a) (incorporating 45 C.F.R. § 80.7(e)).

C. Policies and Procedures

  1. Non-Discrimination Policies and Procedures.  Within forty-five (45) calendar days of the Effective Date of this Agreement, SJCH shall review and modify to the extent necessary its policies and procedures for ensuring that communications with individuals with disabilities, including Patients and Companions, are as effective as communications with individuals without disabilities. The modified policies and procedures shall at a minimum:
    1. Prohibit discrimination based on a disability;
    2. Inform Patients and Companions that SJCH will provide  qualified individuals with disabilities with, at no cost, appropriate auxiliary aids and services that are necessary for effective communication;
    3. Outline the procedures that SJCH will utilize to identify the appropriate auxiliary aids and services (i.e., an assessment);
    4. Outline the procedures for requesting and accessing the appropriate auxiliary aids and services;
    5. Identify procedures for obtaining the appropriate approval for securing an on-site interpreter for a Patient or Companion to comply with the time requirements outlined in this Agreement;
    6. Identify the name(s) of one or more interpreter services that SJCH has retained to provide qualified interpreters for individuals with disabilities when necessary to comply with the requirements included in this Agreement
    7. Provide information about how to provide and receive auxiliary aids and services (including interpreters) for service calls;
    8. Identify the contact information for the SJCH Civil Rights Coordinator; and
    9. Include a statement regarding an individual’s rights to territory and federal protections from discrimination and retaliation.
  2. Approval by HHS.  Within forty-five (45) calendar days of the Effective Date of this Agreement, SJCH will submit copies of all policies and procedures that are created and/or modified in order to comply with this Agreement for review and approval to HHS prior to their implementation.  HHS shall review policies and procedures for consistency with Section 504 and Section 1557.  HHS will make its best efforts to review the proposed policies and procedures within thirty (30) calendar days of receipt and provide comments to SJCH.  SJCH will adjust its proposed policies and procedures to reflect any reasonable comments or concerns identified by HHS.  HHS will not unreasonably withhold their approval of proposed policies and procedures.

D. Notice of Nondiscrimination

  1. Notice of Nondiscrimination.  SJCH shall take appropriate and continuing steps to notify Patients, SJCH personnel who have or are likely to have direct contact with Patients regarding Patients’ clinical care and treatment, and the public of the rights and protections afforded by Section 504 and Section 1557, and the following:
    1. SJCH does not discriminate on the basis of race, color, national origin, sex, age, or disability;
    2. SJCH provides reasonable modifications for individuals with disabilities, and appropriate auxiliary aids and services, including qualified interpreters for individuals with disabilities and information in alternate formats, such as braille or large print, free of charge and in a timely manner, when such modifications, aids, and services are necessary to ensure accessibility and an equal opportunity to participate to individuals with disabilities;
    3. Procedures on how to obtain from SJCH reasonable modifications, appropriate auxiliary aids and services, and language assistance services;
    4. The contact information for SJCH Section 1557 Coordinator as consistent with 45 C.F.R. § 92.7
    5. The availability of SJCH’s grievance procedure as consistent with 45 C.F.R. § 92.8(c) and instructions for filing a grievance;
    6. Details on how to file a discrimination complaint with OCR in the Department; and
    7. Within thirty (30) calendar days of HHS’s approval of the policies referenced in Section III.B of this Agreement, SJCH shall provide photographic evidence that it has prominently displayed the Notice of Nondiscrimination in visible and safe locations within the facility, and to all interested persons by posting the Notice on the SJCH website.

E. Grievance Procedures

  1. Grievance Procedure.  Within forty-five (45) calendar days of the Effective Date of this Agreement, SJCH shall provide to HHS a copy of its Grievance Procedure that allows for the investigation of disputes regarding effective communication with participants, beneficiaries, enrollees, applicants of health programs and activities, and members of the public.  The Grievance Procedure must provide for the prompt and equitable resolution of any complaints alleging discrimination on the basis of disability to ensure it addresses any complaints alleging any action that would be prohibited by Section 504 or Section 1557.
  2. Publication of Grievance Procedure.  No more than thirty (30) calendar days after HHS’s approval of the Grievance Procedure, SJCH shall publish on its website the Grievance Procedure and provide that link to HHS.  Also, no more than thirty (30) calendar days after HHS’s approval of the Grievance Procedure, SJCH shall have each employee who has or is likely to have direct contact with Patients regarding Patients’ clinical care and treatment sign a form or other document indicating they have received, read, and understand the Grievance Procedure. Those signed forms or other documents shall be produced to HHS.
  3. Retention of Records.  SJCH must retain records related to grievances filed pursuant to the covered entity's grievance procedures that allege discrimination on the basis of disability for no less than one (1) calendar year from the date SJCH resolves the grievance.  The records must include the grievance; the name and contact information of the complainant (if provided by complainant); the alleged discriminatory action and alleged basis (or bases) of discrimination; the date the grievance was filed; the date the grievance was resolved; grievance resolution; and any other relevant information.
  4. Confidentiality.  SJCH must keep confidential the identity of an individual who has filed a grievance except as required by law or to the extent necessary to carry out the purposes of this part, including the conduct of any investigation.

F. Program for Effective Communication

  1. Appropriate Auxiliary Aids and Services.  Consistent with Section 504 and Section 1557, SJCH will furnish appropriate auxiliary aids and services where necessary to ensure effective communication with participants, applicants of its health programs and activities, and members of the public, and companions who have communication disabilities, and take appropriate steps to ensure that communication with these individuals are as effective as communication with others.  SJCH will provide appropriate auxiliary aids and services in a timely manner, in accessible formats, and in such a way so as to protect the privacy and independence of the Patient or Companion with a disability consistent with the provisions set forth in this Agreement.  SJCH will give primary consideration to the requests of Patients or Companions with communications disabilities when determining what types of auxiliary aids and services are necessary.  See 45 C.F.R. § 84.77(b)(2); see also 45 C.F.R § 92.202(a) (incorporating 28 C.F.R. §§ 35.160(a), (b)); 45 C.F.R. § 92.202(b).
  2. Prohibition of Surcharges.  All appropriate auxiliary aids and/or services required by this Agreement will be provided free of charge to participants, beneficiaries, enrollees, applicants of its health programs and activities, and members of the public with disabilities.  See 45 C.F.R. §§ 84.68(f) and 92.202(b).
  3. Timing of Communication Assessment and Determination.  Subject to the provisions and exceptions provided in Paragraph 36 for returning Patients, SJCH staff will perform and document a communication assessment as part of each initial Patient assessment, and reasonably reassess communication effectiveness.  If there is any indication from an initial assessment, inquiry, request, or SJCH’s observations that a Patient or Companion has a disability that affects communication and auxiliary aids and services are necessary, SJCH staff who are primarily responsible for coordinating and/or providing patient care services, in consultation with the Patient or Companion wherever possible, will determine which appropriate auxiliary aids and services are necessary.
  4. Communication Assessment Criteria.  In determining which type of auxiliary aids or services are needed to ensure effective communication, SJCH will take into account all relevant facts and circumstances, including the method of communication used by the individual; the nature, length, and complexity of the communication at issue; and the context in which the communication is taking place. SJCH must give primary consideration to the requests of an individual with a disability.  45 C.F.R. § 84.77(b)(2); see also 45 C.F.R. § 92.202(a) (incorporating 28 C.F.R. § 35.160(b)(2)).  This means that SJCH will honor a person’s request for a particular appropriate auxiliary aid or service where such is necessary to afford an equal opportunity to enjoy the benefits of SJCH’s programs or  activities unless the head of SJCH or his or her designee can demonstrate, consistent with the standards in 45 C.F.R. § 84.81 and 45 C.F.R. § 92.202(a) (incorporating 28 C.F.R. § 35.164), that another equally effective means of communication is available, use of the means chosen would result in a fundamental alteration in the service, or the means chosen would result in an undue financial and administrative burden.  SJCH’s decision must consider all resources available for use in the funding and operation of the service, program, or activity at issue and must be accompanied by a written rationale for that conclusion.  45 C.F.R. § 84.81; see also 45 C.F.R. § 92.202(a) (incorporating 28. C.F.R. 35.164).   In the event SJCH demonstrates that the individual’s requested auxiliary aid or service would result in a fundamental alteration or undue burden, SJCH must continue to take steps to provide an alternative aid or service that provides effective communication if one is available.
  5. Documentation of Communication Assessment Relating to Provision of Auxiliary Aids and Services.  For the duration of this Agreement, documentation of any assessment and determination as to the provision of auxiliary aids and services, including the bases for the determination, will be maintained in the Patient’s medical record and include the elements contained in the Auxiliary Aid and Service Log(s), as set forth in Paragraph 44.  Consistent with the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule, 45 C.F.R. Parts 160 and 164, SJCH shall label or make a notation in the Patient’s medical record that the Patient or Companion has a disability that affects communication and will take appropriate steps to ensure that all SJCH staff who are reasonably likely to have contact with a Patient or a Companion are made aware of the auxiliary aid or service(s) that have been identified as necessary to communicate effectively with the Patient or Companion.
  6. Determination Not to Provide Requested Auxiliary Aid or Service.  If, after conducting the assessment as described in Paragraph 33 of this Agreement, SJCH determines that it will not provide a particular auxiliary aid or service requested by a Patient or Companion with a disability based on undue financial or administrative burden, that it would fundamentally alter the medical care or services provided by SJCH, or because an equally effective auxiliary aid or service is available, SJCH staff shall so advise the individual requesting the auxiliary aid or service and secure an alternate means of effective communication in a timely manner.  Even where SJCH can demonstrate that taking a particular action would result in a fundamental alteration or undue burden, SJCH must continue to take steps to ensure that the Patient or Companion receives effective communication to the maximum extent possible.  SJCH shall document the basis for the determination, including the date of the determination, the name and title of the SJCH staff who made the determination, when and how the individual was advised of the determination, and the alternative auxiliary aid or service, if any, that SJCH decided to provide, in the Patient’s medical record, as set forth in Paragraph 34 and/or in the Auxiliary Aid and Service Log, as set forth in Paragraph 44.  A copy of this documentation in the Patient’s medical record shall be provided to the Patient or Companion upon request in accordance with SJCH’s policies and procedures in requesting copies of the Patient’s medical record.
  7. Redetermination and Subsequent Visits.  In the event that the initially provided auxiliary aids and services are not effective or the circumstances change, further reassessment as to which appropriate auxiliary aids and services are necessary, in consultation with the Patient, where possible, and provision of such aid or service based on the reassessment must occur.  Where a patient receives services from SJCH on an ongoing and continuous basis (such as where a patient remains hospitalized), SJCH shall consult with the Patient weekly to ensure the Patient is receiving effective communication, and promptly after a Patient or Companion indicates that communication is not currently or has not been effective.  
  8. Circumstances When Qualified Interpreters Will Be Provided.  SJCH shall provide qualified interpreters for individuals with disabilities, on-site or through a VRI service, to individuals, including Patients and Companions as necessary to ensure effective communication. The following are examples of circumstances and types of communication when it is likely necessary to provide a qualified interpreter for an individual with a disability:
    1. obtaining a Patient’s medical history or description of symptoms and medical condition;
    2. discussing or explaining a Patient’s diagnosis, current condition, prognosis, treatment options or recommendation for treatment;
    3. discussing or explaining treatment;
    4. discussing or explaining prescribed medications, instructions for how and when medication is to be taken, and possible side effects and interactions of medications;
    5. obtaining informed consent or permission for procedures or other treatment options;
    6. communicating during treatment and testing;
    7. communicating during discharge planning and instruction;
    8. discussing complex financial or insurance matters; and
    9. any other circumstance in which a qualified interpreter for an individual with a disability is necessary to ensure a Patient’s rights are protected under applicable laws.
  9. Video Remote Interpreting (VRI) Services Assessment Criteria.  In determining whether a qualified interpreter via VRI is appropriate to provide effective communication for an individual with a disability, relevant factors that SJCH may be required to consider include the following:
    1. the need for medical care and the requisite urgency;
    2. whether the individual is limited in their ability to see the video screen, either due to limited vision or the physical positioning of the Patient (e.g., lying in a prone position or moving frequently during a psychiatric evaluation);
    3. whether the individual has limited ability to move their head, hands, or arms;
    4. whether the individual has cognitive limitations or is in a mental health crisis;
    5. whether there are multiple people in a room and the information exchanged is highly complex or fast-paced;
    6. whether the individual may move frequently or moved to areas of SJCH that do not have a designated high-speed internet line;
    7. whether the individual will be a Patient treated in a room where there are space restrictions; and
    8. whether the VRI can be provided in accordance with the performance standards described in Paragraph 39.
  10. Standards for Providing Video Remote Interpreting (VRI).  Whenever a qualified interpreter via VRI is provided or used, SJCH shall ensure that it provides VRI in accordance with the following standards:
    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 do 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 their 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. See 45 C.F.R. §§ 84.77(d) and 92.202(a) (incorporating 28 C.F.R. § 35.160(d)).
  11. Restricted Use of Adults Accompanying a Patient or Companion to Interpret or Facilitate Communication.  SJCH shall not require an individual with a disability to bring another individual to interpret for them. SJCH shall not rely on an adult accompanying an individual with a disability to facilitate communication except –
    1. In an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available; or
    2. Where the individual with a disability specifically requests that the accompanying adult interpret or facilitate communication; the accompanying adult agrees to provide such assistance, and reliance on that adult for such assistance is appropriate under the circumstances.  See 45 C.F.R. §§ 84.77(c) and 92.202(a) (incorporating 28 C.F.R. § 35.160(c)).
  12. Restricted Use of Minors to Interpret or Facilitate Communication.  SJCH shall not rely on a minor accompanying an individual with a disability to interpret or facilitate communications between SJCH staff and a Patient or Companion except in an emergency involving an imminent threat to the safety or welfare of an individual or the public, or where there is no qualified interpreter for an individual with a disability available.  See 45 C.F.R. §§ 84.77(b)(3) and 92.102(a) (incorporating 28 C.F.R. § 35.160(c)(3)).
  13. Qualified Interpreters for Individuals with Disabilities.  SJCH will develop and implement a process to ensure that any interpreter with whom it contracts is qualified, consistent with the definition of a qualified interpreter for an individual with a disability in Paragraph 20.d.
  14. Timeframe for Providing Qualified Interpreters.  SJCH shall ensure that it provides qualified interpreter for an individual with a disability in a timely manner, as set forth below.  See 45 C.F.R. §§ 87.77(b)(2) and 92.202(b).

    Any deviations from the applicable response times will be documented in the Auxiliary Aid and Service Log, as described in Paragraph 44, and then addressed with the interpreting service provider, as appropriate.
    1. Request for a qualified interpreter for an individual with a disability for a non-scheduled incident.  For all non-­scheduled incidents, SJCH will provide a qualified interpreter, via an on-site appearance or VRI, as soon as practicable after a request or determination that a qualified interpreter is necessary.  Between the time when a qualified interpreter is requested and when a qualified interpreter is made available, SJCH staff will inform the individual, including a Patient or Companion with a disability, of the current efforts being taken to secure a qualified interpreter and continue to communicate with the individual for such purposes and to the same extent as they would have communicated with the person but for the disability, using the most effective means of communication available where appropriate.  Notification of the efforts to secure a qualified interpreter does not lessen SJCH’s obligation to provide a qualified interpreter as required by this Agreement.  Efforts to communicate with the individual with a disability in the interim shall not involve the use of accompanying adults or minors to interpret or facilitate communication, except under the limited circumstances specified in Paragraphs 40 and 41; and
    2. Request for a qualified interpreter for scheduled events.  For all scheduled events when there is at least forty-eight (48) hours’ notice in advance of the time when an interpreter is required, SJCH shall make a qualified interpreter available at the time of the scheduled event.  Even when there are fewer than forty-eight (48) hours from the request to the scheduled event, SJCH will make reasonable efforts to provide an on-site qualified interpreter for the scheduled event.  If an on-site qualified interpreter is necessary, but not available, and it is medically appropriate to do so, with the Patient’s approval, SJCH may either use VRI services as an alternative or make arrangements to reschedule the appointment within forty-eight (48) hours of the request to a time when an on-site qualified interpreter can be appropriately scheduled.  If an on-site qualified interpreter fails to arrive for the appointment, SJCH shall immediately arrange for another qualified interpreter within the timeframes specified in this Paragraph.
  15. Auxiliary Aid and Service Log(s).  Within one hundred and twenty (120) calendar days of the Effective Date of this Agreement, SJCH shall maintain a log, or logs, of each request for an auxiliary aid or service by an individual with a disability, recording the time and date of the request; the name of such individual who made the request; the name of such individual for whom the auxiliary aid or service is being requested (if different from the requestor); the specific auxiliary aid or service requested; and the time and date of the request; the time and date the auxiliary aid or service was provided; the type of auxiliary aid or service provided if different from what was requested; any deviations from the response times specified in Paragraph 37, and, if applicable, a statement and explanation as to why the requested auxiliary aid or service was not provided, including a description of any alternative auxiliary aid or service provided by SJCH.  Such logs will be maintained for the duration of this Agreement.

G. Training

  1. Within one hundred and twenty (120) calendar days of the approval of policies referenced in Section III.B of this Agreement, SJCH will provide mandatory Section 504 and Section 1557 training for employees who have or are likely to have direct contact with Patients and Companions regarding Patients’ clinical care and treatment.  The trainer and training materials must be approved by HHS prior to SJCH administering the training.  Such training, which can be provided by a third party, will be sufficient in duration and content to train the individual in:
    1. Various types of communication disabilities, different languages and methods of communication used by individuals who are deaf and hard of hearing, and cultural diversity in the deaf community;
    2. Identification of communication needs of persons who are deaf or hard of hearing;
    3. SJCH’s auxiliary aids and services policy;
    4. Recommended and required charting procedures governing requests for auxiliary aids and services;
    5. Examples and demonstrations of the types of auxiliary aids and services available;
    6. Scenarios describing how to recognize and appropriately respond to requests for auxiliary aids or services by individuals with disabilities and how to assess the communication needs of individuals, including Patients or Companions who are deaf and hard of hearing and with the individual’s input, to determine the appropriate auxiliary aids and services;
    7. Procedures to promptly obtain auxiliary aids and services, including how to quickly and efficiently set up and operate VRI, and the appropriate steps to take when efforts to obtain auxiliary aids and services are unsuccessful or communication is not effective; and
    8. The nonretaliation provisions of Section 504 and Section 1557.

IV. Reporting and Monitoring

  1. Notices to HHS.  Unless otherwise provided, all notices, reports, or other such documents required by this Agreement shall be submitted to HHS by email to: Barbara Stampul, Regional Manager, Eastern & Caribbean, Office for Civil Rights, Barbara.Stampul@hhs.gov.
  2. Records.  SJCH shall maintain appropriate records to document the information required by this Agreement, and shall make them available, upon request, to HHS, for the duration of this Agreement.
  3. Complaints.  For the duration of this Agreement, SJCH will notify HHS if any individual files a charge or lawsuit, alleging that SJCH failed to provide any auxiliary aids or services to any individual with a disability.  Such notification must be provided in writing within fifteen (15) calendar days of receipt and will include, at a minimum, the nature of the allegation, the name of the individual making the allegation, and any documentation possessed by SJCH or any of its agents or representatives relevant to the allegation.
  4. Compliance Report.  SJCH shall provide an initial written report (“Compliance Report”) to HHS regarding the status of its compliance with this Agreement within six (6) months of the Effective Date of this Agreement and a new Compliance Report annually for the duration of this Agreement.
  5. Required Content for Compliance Reports.  Each Compliance Report shall include appropriate documentation of the steps SJCH has taken to comply with each term of this Agreement, including:
    1. Any revised policies and procedures;
    2. The distribution of policies and procedures;
    3. The adoption and implementation of a Grievance Procedure;
    4. The distribution of the materials;
    5. The training required by this Agreement, including the training materials and attendance records; and
    6. The list of any grievance and/or complaints filed by individuals, including Patients and Companions, or those acting on their behalf regarding allegations that they were denied an auxiliary aid or service, including a description of the allegations, the date filed, the status and/or outcome of each grievance or complaint and a copy of the grievance itself.

V. Enforcement & Miscellaneous

  1. Duration of this Agreement.  This Agreement shall terminate two (2) years from its Effective Date.
  2. Compliance Review and Enforcement.  HHS may review compliance with this Agreement or Section 504 and/or Section 1557 at any time. If HHS believes that SJCH has failed to comply in a timely manner with any requirement of this Agreement without obtaining sufficient advance written agreement with HHS for a modification of the relevant terms, HHS will so notify SJCH in writing and will attempt to resolve the issue or issues in good faith.  If HHS is unable to reach a reasonable resolution of the issue or issues raised within thirty (30) calendar days of the date it provides notice to SJCH, OCR may unilaterally terminate this Agreement; investigate potential noncompliance with this Agreement, Section 504, and/or Section 1557; and take any action authorized by law to secure compliance with Section 504 and Section 1557.
  3. OCR’s Review of SJCH’s Compliance with the Agreement.  OCR may, at any time, review SJCH compliance with this Agreement.  As part of such review, OCR may interview witnesses, examine and copy documents, and require SJCH to provide written reports and permit inspection of SJCH facilities.  For the duration of this Agreement, SJCH agrees to retain records required by OCR to assess SJCH compliance with the Agreement and to submit the requested records to OCR.  OCR will maintain the confidentiality of all documents, files, and records received from SJCH and will not disclose their contents except where necessary in formal enforcement proceedings or where otherwise required or allowed by law.
  4. Non-Waiver.  Failure by HHS to enforce any provision of this Agreement is not a waiver of its right to enforce other provisions of this Agreement.
  5. Binding.  This Agreement is binding on SJCH, and SJCH will undertake appropriate steps, consistent with the terms and conditions of this Agreement and applicable law, to train and ensure that its employees and agents act in conformity with this Agreement.  In the event SJCH seeks to transfer or assign all or part of this interest in any entity covered by this Agreement, and the successor or assignee intends to carry on the same or similar use of the entity, as a condition of sale, SJCH shall obtain the written accession of the successor or assignee to any obligations remaining under this Agreement for the remaining duration of this Agreement.
  6. Entire Agreement.  This Agreement constitutes the entire agreement between HHS and SJCH 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.  This Agreement does not purport to remedy any other potential violations of Section 504, Section 1557, or any other federal law outside of the violations outlined in the Letter of Findings dated September 12, 2024.  This Agreement does not affect the continuing responsibility of SJCH to comply with all aspects of Section 504 and Section 1557.
  7. Modification of Agreement.  This Agreement may be modified by mutual agreement of the parties in writing.
  8. Effective Date.  The effective date of this Agreement is the date of the last signature.
  9. Headings.   The headings in this Agreement are for convenience only and shall not affect in any way the language of the provisions to which they refer.
  10. Execution of Agreement.   The undersigned agents of the parties represent that they have been fully authorized by their clients to enter into and execute this Agreement under the terms and conditions contained herein.
  11. Publication or Disclosure of Agreement.  HHS places no restriction on the publication of the Agreement.  In addition, HHS may be required to disclose material related to this Agreement to any person upon request, consistent with the requirements of the Freedom of Information Act, 5 U.S.C. § 522, and its implementing regulation, 45 C.F.R. Part 5.
  12. Authority of Signer.  The individual(s) who sign this document on behalf of SJCH represents that they are authorized to bind SJCH to this Agreement.

Agreed and Consented to:

For the UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, OFFICE FOR CIVIL RIGHTS

____/s/_____________________________ 

Barbara Stampul
Regional Manager, Eastern & Caribbean Region
Office for Civil Rights
26 Federal Plaza, Room 19-501
New York, NY 10278

Dated: _____11/14/2025_____________

For SAN JUAN CAPESTRANO HOSPITAL

     /s/                                     

Brian Farley
Vice President and Secretary
600 Tower Circle, Suite 1000
Franklin, TN 37067

Dated: ____10/23/2025_____________

Endnotes

1 On May 9, 2024, HHS updated its implementing regulation for Section 504 in a final rule.  89 Federal Register (FR) 40066 (May 9, 2024), available at: https://www.govinfo.gov/content/pkg/FR-2024-05-09/pdf/2024-09237.pdf.  Because the events pertaining to this Agreement occurred before May 9, 2024, all references to HHS’s Section 504 implementing regulation in Section I.B – Investigation and Letter of Findings will cite to the regulation that existed at the time of the alleged discriminatory events available at: https://www.govinfo.gov/content/pkg/CFR-2023-title45-vol1/xml/CFR-2023-title45-vol1-part84.xml#seqnum84.52.  Otherwise, this Agreement and the requirements herein reflect HHS’s updated implementing regulation for Section 504.

2 Similarly, on May 6, 2024, HHS updated its implementing regulation for Section 1557 in a final rule. 89 FR 37422 (May 6, 2024), available at https://www.govinfo.gov/content/pkg/FR-2024-05-06/pdf/2024-08711.pdf.  Because the underlying events giving rise to this Agreement occurred before May 6, 2024, all references to HHS’s Section 1557 implementing regulation in Section I.B – Investigation and Letter of Findings will cite to the regulation that existed at the time of the alleged discriminatory events available at: https://www.govinfo.gov/content/pkg/FR-2020-06-19/pdf/2020-11758.pdf.  Otherwise, this Agreement and the requirements herein reflect HHS’s updated implementing regulation for Section 1557.

3 HHS had jurisdiction to investigate and address such discrimination under the regulation that existed at the time of the alleged discriminatory events.  45 C.F.R. § 84.6  (1977) available at: https://www.govinfo.gov/content/pkg/CFR-2023-title45-vol1/xml/CFR-2023-title45-vol1-part84.xml#seqnum84.6.

4 Section 1557 regulations incorporate by reference certain communications-related regulations issued by the U.S. Department of Justice pursuant to the Americans with Disabilities Act (ADA) and the successor Americans with Disabilities Amendments Act (ADAAA).  See 45 C.F.R. § 92.202(a) (incorporating into Section 1557 regulations located at 28 C.F.R. § 35.130 and 28 C.F.R. §§ 35.160 through 35.164).  To avoid repetition, the remaining cites to 45 C.F.R. § 92.202(a) will simply note which section of the ADAAA is relevant to the particular citation.

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