SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
AND
THE FAYETTEVILLE PAIN CENTER
UNDER THE AMERICANS WITH DISABILITIES ACT

Press Release

    BACKGROUND

  1. The parties to this Settlement Agreement are the United States of America and the Fayetteville Pain Center.
  2. This matter is based upon a complaint filed with the United States Department of Justice alleging that the Fayetteville Pain Center discriminated against an individual with a disability in violation of title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181, et seq.  Specifically, the complainant alleges that the Fayetteville Pain Center refused to treat her on the basis of her HIV status.
  3. The parties agree that it is in their best interests, and the United States believes that it is in the public interest, to resolve this dispute without engaging in protracted litigation.  The parties have therefore voluntarily entered into this Agreement, agreeing as follows:
  4. TITLE III COVERAGE AND FINDINGS

  5. The Attorney General is responsible for administering and enforcing title III of the ADA, 42 U.S.C. §§ 12181-12189, and the regulations implementing title III, 28 C.F.R. Part 36.
  6. The complainant, an individual who has HIV, has a physical impairment that substantially limits one or more major life activities, including the operation of her immune system, which is a major bodily function. Accordingly, she has a disability within the meaning of 42 U.S.C. § 12102 and 28 C.F.R. § 36.104.
  7. The Fayetteville Pain Center is a facility offering evaluation and treatment for acute and chronic pain syndromes, as well as cancer and spinal pain management, in Fayetteville, North Carolina. Its principal place of business is located at 2153 Valleygate Drive, Suite 102, Fayetteville, North Carolina 28304, and Dr. Viren Desai is the sole proprietor and owner of the Fayetteville Pain Center.
  8. Dr. Viren Desai owns, leases (or leases to), or operates a place of public accommodation within the meaning of 42 U.S.C. § 12182(a). The Fayetteville Pain Center is a private entity within the meaning of 42 U.S.C. § 12181(6), and is considered a place of public accommodation because it affects commerce and is a service establishment within the meaning of 42 U.S.C. § 12181(7). See also 28 C.F.R. § 36.104.
  9. Under title III of the ADA, no person who owns, leases (or leases to), or operates a place of public accommodation may discriminate against an individual on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation. 42 U.S.C. § 12182(a).
  10. As a result of its investigation, the United States concluded that:
    1. In October 2011, the complainant was experiencing back pain from a vehicular accident that resulted in a slipped disk and that was exacerbated by the physical demands of caring for her elderly grandmother.
    2. The complainant discussed this pain with her primary care physician and on October 27, 2011, the primary care physician issued a referral for the complainant to see a pain specialist at the Fayetteville Pain Center. When making the referral to Dr. Desai, the referring doctor determined that the referral was urgent due to the severity of the pain, checking "Emergency or ASAP" on the referral form.
    3. On November 10, 2011, the complainant went to her appointment at the Fayetteville Pain Center. She completed the preliminary paperwork, submitted her co-payment for the appointment, and provided a urine sample consistent with office policy. Her urine sample revealed no evidence of drug use in her system.
    4. Dr. Desai entered the exam room and after a brief conversation about her back pain and prescription history, he abruptly declined to treat the complainant.
    5. The complainant left the Fayetteville Pain Center distraught and angered by what she believes was discriminatory treatment on the basis of her HIV status.
    6. On December 10, 2011, the complainant visited another pain specialist at a different location regarding her back pain. The new doctor examined the complainant, requested that she undergo an MRI, and identified that the source of her pain was an annular tear at the L4/L5 vertebral level, a form of spine degeneration. Upon proper diagnosis and treatment of her back pain, the complainant's condition improved.
  11. The United States has determined that the Fayetteville Pain Center has discriminated against the complainant by denying her the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of the Fayetteville Pain Center, on the basis of disability, in violation of 42 U.S.C. § 12182 and 28 C.F.R. § 36.201.
  12. The Fayetteville Pain Center disputes the United States' determinations and contends that it routinely treats patients with disabilities including, but not limited to, patients with HIV, and that the physician in this instance acted consistent with best practices. Neither the United States nor the Fayetteville Pain Center concedes the accuracy of the other parties' contentions, but nevertheless each has agreed to enter into this Agreement.

    ACTIONS TO BE TAKEN BY THE FAYETTEVILLE PAIN CENTER

  13. The Fayetteville Pain Center shall not discriminate against any individual on the basis of disability, including HIV, in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of the Fayetteville Pain Center in violation of the ADA, 42 U.S.C. § 12182, and the relevant implementing regulations, 28 C.F.R. Part 36.
  14. Within 30 days of the effective date of this Agreement, the Fayetteville Pain Center shall promulgate a policy stating that it does not discriminate in the provision of services to persons with disabilities, including persons who have HIV. Once it has been approved by the United States, this policy statement shall be conspicuously posted in the waiting area of its clinic and on the main company webpage (currently at http://www.fayettevillepaincenter.com) for the duration of this Agreement.
  15. Within 60 days of the effective date of this Agreement, the Fayetteville Pain Center shall provide training on title III of the ADA to all of the Fayetteville Pain Center employees, including training about HIV discrimination and the ADA.
  16. All training manuals or written materials concerning the Fayetteville Pain Center policies and practices used in the training required in paragraph 14, or revised or created after the effective date of this Agreement, shall be consistent with the provisions of this Agreement, and approved in advance by the United States.
  17. The Fayetteville Pain Center shall notify the United States when it has completed the actions described in paragraphs 13 and 14 and shall provide documentation confirming that such actions were taken. Documentation shall include a copy of the final policy statement, a copy of training attendance sheets (identifying the name and title of the individuals trained, as well as the date of such training), and a copy of all the training materials used during the training.
  18. Within 30 days of the effective date of this Agreement, the Fayetteville Pain Center shall pay $10,000 to the Complainant to compensate her for the harm she has endured (including, but not limited to, delayed medical treatment, emotional distress, pain and suffering, and other consequential injury) as a result of the Fayetteville Pain Center's actions.
  19. Within 30 days of the effective date of this Agreement, the Fayetteville Pain Center shall pay a civil penalty in the amount of $5,000 as authorized by 42 U.S.C. § 12188(b)(2)(C) and 28 C.F.R. § 36.504(a)(3), as amended, in order to vindicate the public interest.

    OTHER PROVISIONS

  20. In consideration for the Agreement set forth above, the United States will not institute any civil action alleging discrimination based on the allegations raised in DJ # 202-54-141, except as provided in paragraph 20, below.
  21. The United States may review the Fayetteville Pain Center's compliance with this Agreement or title III of the ADA at any time. If the United States believes that this Agreement or any portion of it has been violated, it will raise its concerns with the Fayetteville Pain Center, and the parties will attempt to resolve the concerns in good faith. The United States will give the Fayetteville Pain Center 30 days from the date it notifies the Fayetteville Pain Center of any breach of this Agreement to cure that breach. If the United States is unable to reach a satisfactory resolution of the issue(s) raised within 30 days of the date that it provides notice to the Fayetteville Pain Center, it may institute a civil action in the appropriate United States District Court to enforce this Agreement or title III of the ADA.
  22. Failure by the United States to enforce any of the provisions of this Agreement shall not be construed as a waiver of its right to do so with regard to other provisions of this Agreement.
  23. A signatory to this document in a representative capacity for the Fayetteville Pain Center represents that he or she is authorized to bind the Fayetteville Pain Center to this Agreement.
  24. This Agreement constitutes the entire agreement between the United States and the Fayetteville Pain Center on the matters raised herein, and no other 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, shall be enforceable.
  25. This Agreement is not intended to remedy any other potential violations of the ADA or any other law that is not specifically addressed in this Agreement, including any other claims for discrimination on the basis of HIV status. Nothing in this Agreement changes the Fayetteville Pain Center's obligation to otherwise comply with the requirements of the ADA.

    EFFECTIVE DATE/TERMINATION DATE

  26. The effective date of this Agreement is the date of the last signature below.
  27. The duration of this Agreement will be three years from the effective date.

AGREED AND CONSENTED TO:

 

/s/ H. Gerald Beaver
H. Gerald Beaver
Beaver, Holt, Sternlicht, & Connie, PA
230 Green Street
Fayetteville, NC 28301
(910) 323-4600

 

January 22, 2013
Date

 

 

THOMAS E. PEREZ
Assistant Attorney General
EVE L. HILL
Senior Counselor to the Assistant Attorney General
Civil Rights Division

GREGORY B. FRIEL, Acting Chief
ALBERTO RUISANCHEZ, Deputy Chief
KATHLEEN P. WOLFE, Special Litigation Counsel

 

/s/ Lisa M. Taylor
LISA M. TAYLOR, Trial Attorney
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
(202) 307-0663

 

January 30, 2013
Date

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