SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
MARIN MAGNETIC IMAGING
COMPLAINT NUMBER DJ# 202-11-142
A. BACKGROUND AND PARTIES
1. This matter was initiated by a complaint filed with the United States Department of Justice (DOJ) against Marin Magnetic Imaging, a medical office that provides MRI imaging located at 1260 South Eliseo Drive, Greenbrae, CA. The complainant, Mr. Luc Dehouwer, has quadriplegia and uses a wheelchair. Mr. Dehouwer alleges that he was denied full and equal access to the services provided by Marin Magnetic Imaging because of his disability on two occasions when he came to Marin Magnetic Imaging for a scheduled appointment to have an MRI. Because Mr. Dehouwer cannot stand, he needed assistance to transfer from his wheelchair to the MRI table. At the first appointment, Mr. Dehouwer alleges, the two technicians present refused to assist him in transferring from his wheelchair to the scanning table, and it was not until Mr. Dehouwer’s wife agreed to assist the technicians that they transferred Mr. Dehouwer from his chair to the table. For the second appointment, Mr. Dehouwer brought his own mechanical lift to ensure that he could transfer onto the scanning table. However, the wheels of Mr. Dehouwer’s mechanical lift could not fit under the table, thereby preventing him from using the lift. The technician refused to lift him out of his wheelchair onto the scanning table and Mr. Dehouwer did not receive the scan.
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.
3. Marin Magnetic Imaging (MMI) is 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 MMI denied Mr. Dehouwer medical services on the basis of his disability, and specifically failed to make reasonable modifications in policies, practices, or procedures, when such modifications were necessary to afford its services to Mr. Dehouwer, and/or failed to undertake readily achievable barrier removal, by not providing him the equipment and/or assistance he 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. MMI disputes the allegations by Mr. Dehouwer and the DOJ’s findings and denies any and all liability. While MMI admits no wrongdoing, and the United States does not concede MMI’s defenses, the parties have agreed to compromise and resolve this action as set forth below to avoid the cost and uncertainties of litigation. MMI does not make any admissions with regard to the allegations contained in the complaint in this matter or otherwise by the execution and negotiation of this Agreement.
B. TERMS OF AGREEMENT
6. Within 60 days of the effective date of this Agreement, MMI agrees to purchase an MRI compatible adjustable gurney that adjusts to a height of 17-19 inches from the floor.
7. Within 30 days of the effective date of this Agreement, MMI will adopt a non-discrimination policy (attached as Exhibit 1) and post it in its office.
8. When scheduling an appointment, MMI 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. MMI shall be prepared to provide the necessary assistance or auxiliary aid at the patient’s exam. It will not be a violation of this Agreement for MMI to be unprepared to accommodate an individual with a disability who did not identify a need for that particular accommodation when asked by the staff person who scheduled the appointment, except when MMI can accommodate the individual without fundamentally altering the nature of its services.
9. Within 90 days of the effective date of this Agreement, all MMI medical and administrative staff who interact with patients will attend a training session or sessions on the requirements of Title III of the ADA as they apply to health care facilities, including sensitivity training on interacting with individuals with disabilities, and techniques for assisting individuals with mobility disabilities to transfer to the exam table. The individuals to be trained may include doctors, technicians, aids, and receptionists. The trainer(s) shall be approved in advance by the United States.
10. MMI will pay $2,000.00 to Mr. Dehouwer. MMI shall send, return receipt requested or by overnight delivery, a check for this amount to Mr. Dehouwer within 21 days of receiving MMI’s release form signed by Mr. Dehouwer. MMI will provide counsel for the United States a copy of the check and transmittal letter sent to him.
11. Within 120 days of the effective date of this Agreement, MMI shall file a report with DOJ reporting on its 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 adjustable gurney, 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 at U.S. Department of Justice, Disability Rights Section, 1425 New York Ave., NW, Washington DC 20005.
12. In consideration of the terms of this Agreement, DOJ closes Complaint #202-11-142, except as provided in paragraph 13 below.
C. IMPLEMENTATION AND ENFORCEMENT
13. DOJ may review compliance with this Agreement at any time during the term of this Agreement. 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, following written notice to MMI of possible violations and a period of 30 days in which MMI 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 MMI, its agents and employees. In the event MMI seeks to transfer or assign all or part of its interest, and the successor or assign intends on carrying on the same or similar use of the facility, as a condition of sale MMI 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 MMI’s continuing responsibility to comply with all aspects of the ADA.
18. If any term of this Agreement is determined by any court to be unenforceable, the other terms of this Agreement shall nonetheless remain in full force and effect, provided, however, that if the severance of any such provision materially alters the rights or obligations of the parties, the Department of Justice and MMI shall engage in good faith negotiations in order to adopt mutually agreeable amendments to this Agreement as may be necessary to restore the parties as closely as possible to the initially agreed upon relative rights and obligations.
19. This Agreement will remain in effect for three years from its effective date.
For Marin Magnetic Imaging
For the United States
MICHAEL P. BELICK
Chief Executive Officer
Rebecca L. Cachia-Riedl, Esq.
Hassard Bonnington LLP
Two Embarcadero Center, Suite 1800
San Francisco, CA 94111
(415) 288-9801 (facsimile)
WAN J. KIM
Assistant Attorney General
Civil Rights Division
JOHN L. WODATCH, Chief
L. IRENE BOWEN Deputy Chief
Disability Rights Section
U.S. Department of Justice
950 Pennsylvania Avenue, N.W
Disability Rights Section - NYA
Washington, DC 2053
(202) 305-9775 (facsimile)
Dated: ______July 21, 2006_________