A. BACKGROUND AND PARTIES
1. This matter was initiated by a complaint filed with the United States Department of Justice (DOJ) and the United States Department of Health and Human Services Office for Civil Rights (OCR) against Dr. Robila Ashfaq, a physician who has a solo practice in family medicine located at 4050 Barranca Parkway, Suite 210, Irvine, California. The complainant, Ms. Holly Bercik, is paraplegic and uses a wheelchair. Ms. Bercik was treated by Dr. Ashfaq for approximately one year and visited her several times. On her first visit, Ms. Bercik had difficulty getting onto the exam table. The office staff offered to help, but Ms. Bercik chose to have her husband assist her. During other visits, she was examined in her wheelchair. Before returning for her annual exam, which would require being examined on the exam table, Ms. Bercik wrote to Dr. Ashfaq and requested that she borrow or purchase an adjustable exam table or a lift to facilitate her transfer to the table. Approximately two weeks later, on October 9, 2003, Dr. Ashfaq wrote to Ms. Bercik informing her that she would no longer provide medical care for her. She stated that she was “unable to readily purchase an adjustable table or lift because of budget constraints” and so recommended that she get her annual exam from another physician.
2. The Attorney General is authorized under section 308(b)(1) of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12188(b)(1), to investigate complaints and bring a civil action under Title III in any situation where a pattern or practice of discrimination is believed to exist or where a matter of general public importance is raised. OCR is authorized under Section 504 of the Rehabilitation Act of 1973 (Section 504), as amended, 29 U.S.C. §794, implementing regulations at 45 C.F.R. Part 84, to investigate complaints of discrimination on the basis of disability filed against recipients of federal financial assistance.
3. Dr. Ashfaq owns and operates a medical office that provides services to the public and is a public accommodation covered by Title III of the ADA, 42 U.S.C. § 12181(7); 28 C.F.R. § 36.104.
4. DOJ investigated the complaint. DOJ determined that Dr. Ashfaq denied Ms. Bercik medical services on the basis of her disability, and specifically failed to make reasonable modifications in policies, practices, or procedures, when such modifications were necessary to afford its services to Ms. Bercik, and/or failed to undertake readily achievable barrier removal, by not providing her the equipment and/or assistance she needed to get onto the exam table, in violation of Title III of the ADA, 42 USC §§12182(b)(1)(A)(i), (b)(2)(A)(ii), (b)(2)(A)(iv).
5. In order to avoid unnecessary and costly litigation, the parties have agreed to resolve this action as set forth below.
B. TERMS OF AGREEMENT
6. Within 60 days of the effective date of this Agreement, Dr. Ashfaq agrees to purchase one exam table that adjusts to a height of 17-19 inches from the floor.
7. Within 30 days of the effective date of this Agreement, Dr. Ashfaq will adopt a non-discrimination policy (attached as Exhibit 1) and post it in her office.
8. When scheduling an appointment, Dr. Ashfaq’s staff will ask the patient if he or she will need any special assistance, modification of policy, or auxiliary aid or service at the examination because of a disability. It shall not be a violation of this agreement for Dr. Ashfaq to be unprepared to accommodate an individual with a disability who did not identify a need for that particular accommodation when asked by the receptionist, except when Dr. Ashfaq can accommodate the individual without fundamentally altering the nature of her services.
9. Within 90 days of the effective date of this Agreement, Dr. Ashfaq and her staff will attend a training session on the requirements of Title III of the ADA, including sensitivity training on interacting with individuals with disabilities, and techniques for assisting individuals with mobility disabilities to transfer to the exam table.
10. Within 21 days of the effective date of this Agreement, Dr. Ashfaq will send, return receipt requested or by overnight delivery, the release form attached as Exhibit 2 to Ms. Bercik, along with a copy of this Settlement Agreement. Within 21 days of receiving the signed release form, Dr. Ashfaq shall send, return receipt requested or by overnight delivery, a check for $1000 to Ms. Bercik. Dr. Ashfaq will provide counsel for the United States a copy of the check and transmittal letter sent to her.
11. Within 120 days of the effective date of this Agreement, Dr. Ashfaq shall file a report with DOJ reporting on her compliance with the actions described in paragraphs 6, 7, 8 and 9 above. The report shall include the make, model, and pictures of the new exam table, the dates of the training, the names and job positions of the attendees, the name and affiliation of the trainer, and the subjects covered in the training. The report shall be sent by fax or overnight mail to Amanda Maisels.
12. In consideration of the terms of this Agreement, DOJ closes Complaint #202-12C-264 and OCR closes Complaint #04-15674.
C. IMPLEMENTATION AND ENFORCEMENT
13. DOJ may review compliance with this Agreement at any time. If DOJ believes that this Agreement or any of its requirements has been violated, it may institute a civil action in federal district court to enforce this Agreement or the requirements of Title III and Section 504, following written notice to Dr. Ashfaq of possible violations and a period of 21 days in which Dr. Ashfaq has the opportunity to cure the alleged violations.
14. Failure by DOJ to enforce this entire Agreement or any of its provisions or deadlines shall not be construed as a waiver of the DOJ’s right to enforce other deadlines and provisions of this Agreement.
15. This agreement shall be binding on Dr. Ashfaq, her agents and employees. In the event Dr. Ashfaq seeks to transfer or assign all or part of her interest, and the successor or assign intends on carrying on the same or similar use of the facility, as a condition of sale Dr. Ashfaq shall obtain the written accession of the successor or assign to any obligations remaining under this agreement for the remaining term of this agreement.
16. The effective date of this Agreement is the date of the last signature below.
17. This Agreement constitutes the entire agreement between the parties on the matters raised here, 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 the ADA or any other federal law. This Agreement does not affect Dr. Ashfaq’s continuing responsibility to comply with all aspects of the ADA.
18. The Agreement will remain in effect for three years from the effective date of this Agreement.
For the United States:
DR. ROBILA ASHFAQ
Michael Saboorian, Esq.
1600 Dove St., Suite 109
Newport Beach, CA 92660
(949) 474-1455 (facsimile)
R. ALEXANDER ACOSTA
Assistant Attorney General
Civil Rights Division
JOHN L. WODATCH, Chief
L. IRENE BOWEN
Disabilty Rights Section
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington , D.C. 20530
In accordance with Title III of the Americans with Disabilities Act (ADA), Dr. Robila Ashfaq does not discriminate on the basis of disability in the provision of her medical services. Dr. Ashfaq will make reasonable modifications to her policies and procedures when necessary to provide her medical services to individuals with disabilities, unless such modifications would fundamentally alter the nature of her medical services. Dr. Ashfaq will also remove barriers when doing so is readily achievable. Individuals with disabilities will not be denied services on the basis of their disability.
When a patient with a mobility impairment (e.g., a wheelchair user) needs assistance to transfer to an examination table, Dr. Ashfaq and her staff will provide safe and appropriate assistance. Dr. Ashfaq or her staff will first ask the patient exactly what assistance he or she needs, and how he or she prefers to be assisted in order to provide a safe and effective transfer. Dr. Ashfaq and her staff will be trained in proper techniques to assist an individual with a mobility impairment to transfer to an exam table.
I, Holly Bercik, hereby release and discharge Dr. Robila Ashfaq from any and all claims relating to her denial of services to me in October 2003 because of my disability. I am providing this release as part of the Settlement Agreement reached between Dr. Ashfaq and the United States resolving my complaint, DJ #202-12C-264, OCR#04-15674. I acknowledge that I have had the opportunity to discuss this matter with counsel of my choosing.
(Return to Agreement)
December 29, 2005