SETTLEMENT AGREEMENT BETWEEN

THE UNITED STATES OF AMERICA

AND

CHW MEDICAL FOUNDATION AND MEDICAL CLINIC OF SACRAMENTO, Inc.

UNDER THE AMERICANS WITH DISABILITIES ACT

DJ# 202-11E-118

Press Release


BACKGROUND

  1. The parties to this Settlement Agreement are the United States of America, CHW Medical Foundation, and Medical Clinic of Sacramento, Inc. (doing business, and hereinafter referred to, as Mercy Medical Group, Inc.).
  2. This matter was initiated by and is based upon a complaint filed with the United States Department of Justice that alleged that CHW Medical Foundation and Mercy Medical Group, Inc. 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 CHW Medical Foundation and Mercy Medical Group, Inc. refused to provide him with medical treatment because he is a person with HIV.
  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. This Agreement does not constitute an admission of liability by either CHW Medical Foundation or Mercy Medical Group, Inc. 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 relevant 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 functions of his immune system, which is a major bodily function. Accordingly, he has a disability within the meaning of 42 U.S.C. § 12102 and 28 C.F.R. § 36.104.
  7. CHW Medical Foundation owns and operates a multi-specialty clinic with locations throughout California. CHW Medical Foundation is the owner and operator of the Mercy Medical Group, Inc. – Midtown Clinic (“Midtown Clinic”), which is located at 3000 Q Street, Sacramento, California.
  8. Mercy Medical Group, Inc. is a professional medical corporation that employs or contracts with professional personnel to provide professional healthcare services. CHW Medical Foundation has entered into a professional services agreement with Mercy Medical Group, Inc. to provide professional healthcare services at the Midtown Clinic. Among other things, Mercy Medical Group, Inc. provides professional medical services, as well as administrative, medical education, and research services, at the Midtown Clinic.
  9. CHW Medical Foundation and Mercy Medical Group, Inc. own, lease (or lease to), and/or operate a place of public accommodation within the meaning of 42 U.S.C. § 12182(a). The Midtown Clinic 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.
  10. 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).
  11. The United States has determined that:
    1. On June 30, 2011, the complainant went to the Midtown Clinic to seek treatment for what he believed to be a bunion on the big toe of his left foot, which was causing him pain. The complainant met with a podiatrist employed by Mercy Medical Group, Inc., who works at the Clinic. At the beginning of the appointment, the complainant informed the podiatrist that he has HIV.
    2. The podiatrist examined the complainant’s foot, asked several questions about the complainant’s pain, and tested the complainant’s range of motion in his toe and foot.
    3. The podiatrist then explained to the complainant that he had a bunion and described the complainant’s treatment options, which ranged from conservative treatment including, but not limited to, using toe spacers and getting cortisone injections to more aggressive intervention consisting of surgically removing the bunion.
    4. After explaining the risks, benefits, and possible complications associated with each treatment option, the podiatrist informed the complainant that he could not perform surgery because it would be an elective procedure and, as he noted in the patient’s medical chart, there would be “a moderate high risk” that he would contract HIV from the patient during the surgery.
    5. The complainant left the Midtown Clinic distraught and angered by what he believed was the podiatrist’s discriminatory treatment.
    6. Approximately two weeks later, the complainant visited another podiatrist at a different location regarding the pain in his toe. The new podiatrist examined the complainant and explained the treatment options, including surgery, to the complainant. The podiatrist expressed no reservations or hesitation about performing the surgery due to a risk of HIV transmission to the surgeon.
  12. The United States has determined that CHW Medical Foundation and Mercy Medical Group, Inc. discriminated against the complainant by denying him the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of the Midtown Clinic, on the basis of disability, in violation of 42 U.S.C. § 12182 and 28 C.F.R. §36.201.
  13. The United States has further determined that CHW Medical Foundation and Mercy Medical Group, Inc. cannot show that treating the complainant would have posed a direct threat to the health or safety of others. 42 U.S.C. § 12182(b)(3).
  14. CHW Medical Foundation and Mercy Medical Group, Inc. dispute the United States’ determinations and contend that they routinely treat patients with disabilities including, but not limited to, the complainant, and that the physician in this instance, consistent with best practices, recommended conservative measures rather than opting for aggressive, invasive surgery, which may not have addressed the complainant’s symptoms and could have aggravated the complainant’s pain and/or resulted in additional complications. Neither the United States, nor CHW Medical Foundation and Mercy Medical Group, Inc. concede the accuracy of the other parties’ contentions, but nevertheless each has agreed to enter into this Agreement.
  15. ACTIONS TO BE TAKEN BY CHW MEDICAL FOUNDATION
    AND MERCY MEDICAL GROUP, INC.

  16. CHW Medical Foundation and Mercy Medical Group, Inc. 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 Midtown Clinic in violation of the ADA, 42 U.S.C. § 12182, and the relevant implementing regulations, 28 C.F.R. Part 36.
  17. Within 30 days of the effective date of this Agreement, CHW Medical Foundation and Mercy Medical Group, Inc. shall draft a policy stating that they do 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 the Midtown Clinic, and on the company webpage at http://www.mymercymedicalgroup.org/index.htm for the duration of this Agreement.
  18. Within 60 days of the effective date of this Agreement, and every year thereafter for the duration of this Agreement, Mercy Medical Group, Inc. shall conduct training on title III of the ADA to all physicians and nurses at the Midtown Clinic. The training shall also provide information on HIV discrimination under the ADA and on the policy statement adopted under Paragraph 15.
  19. All training manuals or written materials concerning the training required in Paragraph 16, 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.
  20. CHW Medical Foundation and Mercy Medical Group, Inc. shall notify the United States when they have completed the actions required under Paragraph 15, and Mercy Medical Group, Inc. shall notify the United States and CHW Medical Foundation after each training required under Paragraph 16. Mercy Medical Group, Inc. shall create and maintain an attendance sheet that documents the name of each individual who attends the trainings, his/her title, and the date he/she attended the training. Copies of such attendance sheets shall be provided to the United States within 10 days of any request for them.
  21. Within 30 days of receiving the attached release signed by the complainant, and after receipt of the separate, signed release between complainant and CHW Medical Foundation and Mercy Medical Group, Inc., CHW Medical Foundation and Mercy Medical Group, Inc. shall pay a total of $60,000.00 to the complainant. A copy of such payment shall be sent to the United States within 10 days of issuance.
  22. Within 30 days of the effective date of this Agreement, CHW Medical Foundation and Mercy Medical Group shall pay a civil penalty in the amount of $25,000.00 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..
  23. OTHER PROVISIONS

  24. 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 # 202-70-75, except as provided in Paragraph 22, below.
  25. During the term of this Agreement, the United States may review CHW Medical Foundation’s and Mercy Medical Group, Inc.’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 offending party, and the parties will attempt to resolve the concerns in good faith. The United States will provide 30 days from the date it notifies the offending party 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 offending party, it may institute a civil action in the appropriate United States District Court to enforce this Agreement or title III of the ADA against the party or parties failing to comply with this Agreement after the notice and cure periods provided above have expired.
  26. 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.
  27. Signatories to this document in a representative capacity for CHW Medical Foundation and Mercy Medical Group, Inc. represent that they are authorized to bind their respective companies to this Agreement.
  28. This Agreement constitutes the entire agreement between the United States and CHW Medical Foundation and Mercy Medical Group, Inc. regarding 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.
  29. 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. Nothing in this Agreement changes CHW Medical Foundation’s or Mercy Medical Group, Inc.’s obligation to otherwise comply with the requirements of the ADA.
  30. All documents or communications to be provided to the United States, CHW Medical Foundation, or Mercy Medical Group, Inc. pursuant to this Agreement shall be in writing and delivered by email or overnight mail to the following persons and addresses (or such other person as may be designated in writing):
  31. Alberto Ruisanchez
    Disability Rights Section
    U.S. Department of Justice
    1425 New York Avenue, NW
    Suite 4039
    Washington, DC 20005
    (202) 305-1291
    alberto.ruisanchez@usdoj.gov

    CHW Medical Foundation
    c/o Ian Boase, Esq., V.P. and Associate General Counsel
    Dignity Health
    Legal Department
    3400 Data Drive
    Rancho Cordova, CA 95670
    (916) 851-2023

    Gregory L. Cooper, DPM, MBA
    Chief Executive Officer
    Mercy Medical Group, Inc.
    3000 Q Street
    Sacramento, CA 95816
    Telephone: (916) 733-3421
    Facsimile: (916) 859-1437
    gregory.cooper@dignityhealth.org

  32. If, during the term of this Agreement, CHW Medical Foundation seeks to transfer, sell, or assign all or part of its interest in the Midtown Clinic, and the successor or assignee intends on carrying on the same or similar use of the facility, as a condition of sale, CHW Medical Foundation shall obtain the written accession of the successor or assignee to any obligation remaining under this Agreement that has been assumed by CHW Medical Foundation for the remaining term of this Agreement. If, during the term of this Agreement, Mercy Medical Group, Inc. ceases to provide professional medical services for the Midtown Clinic, CHW Medical Foundation or its successor shall cause any subsequent provider of professional medical services for the Midtown Clinic to fulfill any remaining obligation assumed by Mercy Medical Group, Inc. under this Agreement for the remaining term of this Agreement.
  33. EFFECTIVE DATE/TERMINATION DATE

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

AGREED AND CONSENTED TO:


__________________________
For: CHW Medical Foundation

 

By:

_______5-4-2012________
Date

__________________________
For: Mercy Medical Group, Inc.

 

By:

_______4-18-2012_____________
Date

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

___________________________­
ALLISON J. NICHOL, Chief
KATHLEEN WOLFE, Special Litigation Counsel
ALBERTO RUISANCHEZ, Deputy Chief
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
(202) 307-0663

_______5-10-2012____________
Date

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