SETTLEMENT AGREEMENT BETWEEN

THE UNITED STATES OF AMERICA

AND

RAY HAND, Ph.D.


DEPARTMENT OF JUSTICE COMPLAINT NUMBER 202-60-76

INTRODUCTION

1.    The parties to this Settlement Agreement (“Agreement”) are the United States of America and Ray Hand, Ph.D., located in Oklahoma City, Oklahoma.

2.     This matter was initiated by a complaint filed with the United States Department of Justice (the “Department”) against Dr. Ray Hand, D.J. No. 202-60-76, alleging violations of title III of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12181-12189, and its implementing regulation, 28 C.F.R. Part 36. Specifically, the complaint alleged, inter alia, that Dr. Hand failed to provide a sign language interpreter as requested, and where necessary for effective communication, for a teenager who is deaf in February 2004. Dr. Hand denied this allegation.

3.     The Department is authorized to investigate alleged violations of title III of the ADA, and to bring a civil action in federal court if the Department is unable to secure voluntary compliance in any case that involves a pattern or practice of discrimination or that raises issues of general public importance, 42 U.S.C. § 12188(b).

4.     The office of Dr. Ray Hand is a professional office of a psychologist and thus a place of public accommodation covered by title III of the ADA. 42 U.S.C. § 12181(7)(F).

5.     The ADA prohibits public accommodations, including professional offices of a psychologist, from discriminating against an individual on the basis of disability in the full and equal enjoyment of its goods and services. 42 U.S.C. § 12182(a).

6.     Dr. Hand has cooperated in the government's investigation and has maintained his office is committed to full compliance with the ADA.

7.     The Department has determined by its investigation the following:

a.     Dr. Hand was appointed by the Honorable Craig S. Key, Associate District Judge, Lincoln county, Oklahoma in Case No. FD-1994-80, to conduct a custody evaluation of Rebecca and Jerry Gentry and their minor child, L.G..

b.     Dr. Hand met with Jerry Gentry January 5 and January 9, 2004. Dr. Hand met with Rebecca Gentry, January 7, 2004. Dr Hand met with Rebecca Gentry and the minor child L.G., January 16, 2004. No interpreter was requested for any of these visits.

c.     The next appointment with L.G. and his parent was scheduled for February 6, 2004, without an interpreter.

d.     On February 5, 2004, Oklahoma Disability Law Center informed Dr. Hand by fax, that it would provide an interpreter for the February 6, 2004, meeting. Dr. Hand, however, was forced to cancel the February 6th meeting because he was testifying in another custody matter.

e.     Dr. Hand subsequently met with L.G. and his father on two occasions, and each visit was with an interpreter.

f.     Dr. Hand made a professional determination that it was important to evaluate L.G. both with and without an interpreter since Jerry Gentry and Rebecca Gentry disagreed about the effectiveness of the cochlear implant.

8.     The parties enter into this settlement agreement in order to avoid unnecessary and costly litigation and hereby agree as follows:

DEFINITIONS

9.     The term “appropriate auxiliary aids and services” means: qualified sign language or oral interpreters, note takers, computer-assisted real time transcription services, written materials, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, TTY’s, large print materials, acquisition or modification of equipment or devices, and other methods of delivering effective communication that may have come into use or will come into existence in the future.

10.     The term “qualified sign language interpreter,” “oral interpreter,” or “interpreter” means: an interpreter who is able to interpret competently, accurately and impartially, both receptively and expressively, using any specialized terminology necessary for effective communication in a office setting to a individual who is deaf or hard of hearing. Someone who has only a rudimentary familiarity with sign language or finger spelling is not a “qualified sign language interpreter” under this Agreement. Likewise, someone who is fluent in sign language but who does not possess the ability to process spoken communication into the proper signs or to observe someone signing and change their signed or finger spelled communication into spoken words is not a qualified sign language interpreter.

TERMS OF AGREEMENT

11.     Provision of Appropriate Auxiliary Aids and Services.

A.     Immediate Aids and Services. Immediately as of the effective date of this Agreement, Dr. Hand will provide to individuals who are deaf or hard of hearing appropriate auxiliary aids and services that may be necessary for effective communication unless an undue burden or a fundamental alteration would result, after making the assessment described below.

B.    General Assessment Criteria. The determination of which appropriate auxiliary aids and services are necessary, and the timing, duration and frequency with which they will be provided, will be made by Dr. Hand, in consultation with the individual where possible. The assessment will take into account all relevant facts and circumstances, including without limitation the following:

  1. The nature, length and importance of the communication at issue;

  2. The individual’s communication skills and knowledge;

  3. The individual’s health status or changes thereto;

  4. The individual’s request for or statement of need for an interpreter;

  5. The reasonably foreseeable mental health care activities of the individual (e.g., group therapy sessions, psychological tests or procedures, meetings with health care professionals or social workers, or discussions concerning billing, insurance, self-care, prognoses, diagnoses, history and discharge);

  6. The type of auxiliary aid or service necessary to ensure effective communication. Dr. Hand is not required to provide any auxiliary aid or service that would fundamentally alter the nature of the services offered or that would result in an undue burden. However, the fact that providing a particular auxiliary aid or service would result in a fundamental alteration or undue burden does not necessarily relieve Dr. Hand from his obligation to ensure effective communication. Dr. Hand must still provide an alternative auxiliary aid or service that would not result in an undue burden or fundamental alteration but that would ensure effective communication to the maximum extent possible, if one is available.

C.     Time for Assessment. The determination of which appropriate auxiliary aids and services are necessary, and the timing, duration and frequency with which they will be provided, must be made at the time an appointment is scheduled or on the arrival of the individual at the office, whichever is earlier. Dr. Hand will perform and document in the individual’s file a communication assessment as part of each initial individual assessment. Dr. Hand shall reassess which appropriate auxiliary aids and services are necessary, in consultation with the individual where possible. Dr. Hand will not be in violation of this Agreement if a patient waives or refuses the offer of an interpreter or other auxiliary aid.

D.     Ongoing Relationships. If an individual has an ongoing relationship with Dr. Hand during subsequent visits, Dr. Hand will continue to provide the appropriate auxiliary aids or services to the individual without requiring a request for the appropriate auxiliary aids or services by the individual for each visit. Dr. Hand will keep appropriate records that reflect the ongoing provision of auxiliary aids and services (which may vary in accordance with the length and complexity of the communication involved from visit to visit), as well as individuals' responses to Dr. Hand's offer of auxiliary aid or service.

12.     Determination Not to Provide Auxiliary Aid or Service. If, after conducting a communication assessment, Dr. Hand determines that the circumstances do not warrant provision of an auxiliary aid or service, Dr. Hand shall so advise the person requesting the auxiliary aid or service and shall document the date and time of denial, and the basis for the determination. A copy of this document shall be provided to the individual, shall be maintained with the log described in Paragraph 13, below, and shall be placed in the individual’s file.

13.     Maintenance of Log. Dr. Hand will maintain a log of each request for an auxiliary aid and service, the time and date the request is made, the individual’s name, the time and date of the scheduled appointment (if a scheduled appointment was made), the time and date the auxiliary aid and service was provided, or a statement that the auxiliary aid and service was not provided.

14.     Prohibition of Surcharges. All appropriate auxiliary aids and services required by this Agreement will be provided free of charge to the individual who is deaf or hard of hearing.

15.     Individual Notice in Absence of Request. If an individual who is deaf or hard of hearing does not request appropriate auxiliary aids or services, but Dr. Hand has reason to believe that such person would benefit from appropriate auxiliary aids or services for effective communication, Dr. Hand will specifically inform the person that appropriate auxiliary aids and services are available free of charge.

16.    Sign Language and Oral Interpreters. Dr. Hand will provide qualified sign language interpreters to individuals who are deaf or hard of hearing and whose primary means of communication is sign language. Dr Hand will provide qualified oral interpreters to individuals who are deaf or hard of hearing who rely primarily on lip reading, as necessary for effective communication.

17.     Notice to Community. Within thirty (30) days of the effective date of this Agreement, Dr. Hand will post and maintain a sign of conspicuous size and print at his office. Such sign will provide, in essential part:

Sign language and oral interpreters, TTY’s, and other auxiliary aids and services are available free of charge to people who are deaf or hard of hearing. For assistance, please contact this office.

18.    Compliance Reports. Three (3) months after the effective date of this Agreement, and annually thereafter during the term of this Agreement, Dr. Hand must provide a written report (“Report”) to the Department of Justice regarding his efforts to comply with this Agreement. Each Report must include a factual description of interactions related to effective communication with any clients who are deaf or hard of hearing, without identifying information. The Report shall include an explanation of the determination made by Dr. Hand regarding the provision of auxiliary aids or services. In the event that Dr. Hand does not provide auxiliary aid(s) or service(s) to an individual who is deaf or hard of hearing, the Report must state (1) the procedure followed by Dr. Hand in determining whether to provide auxiliary aids and services to the individual and (2) Dr. Hand’s reasons for not providing auxiliary aids and services to the individual.

19.    Complaints. During the term of this Agreement, Dr. Hand will notify the Department if any individual brings any lawsuit, complaint, charge, or grievance alleging that Dr. Hand failed to provide auxiliary aids and services to individuals. Such notification must be provided in writing via certified mail within fifteen (15) days of when Dr. Hand has received notice of the allegation and will include, at a minimum, the nature of the allegation, the name of the individual bringing the allegation, and any documentation possessed by Dr. Hand relevant to the allegation.

20.     Violation of Agreement. If Dr. Hand violates this Agreement or any subpart of this Agreement, the Department will have such remedies as are allowed by law.

21.     Notwithstanding the provisions of Paragraph 18, above, in the event that the Department believes that Dr. Hand has violated any provision of this Agreement, the Department will give written notice (including reasonable details) of such violation to Dr. Hand, and he must then respond to such written notice and/or cure such non-compliance as soon as practicable but no later than twenty-one (21) days thereafter. The Parties will negotiate in good faith in an attempt to resolve any dispute relating thereto before seeking relief under Paragraph 20.

22.     Term of the Agreement. The Agreement shall become effective as of the date of the last signature below and shall remain in effect for three years from that date.

23.     The agreement constitutes the entire agreement between the parties relating to Department of Justice No. 202-60-76 and no other statement, promise, or agreement, either written or oral, made by either party or agents of any party, that is not contained in this written agreement, including its attachments, shall be enforceable.

24.     Binding. This Agreement is final and binding on the Parties, including all principals, agents, executors, administrators, representatives, employees, successors in interest, beneficiaries, assigns, heirs, and legal representatives thereof. Each Party has a duty to so inform any such successor in interest and to timely notify all parties of all such successors in writing. In the event Dr. Hand seeks to transfer or assign all or part of its interests in any facility covered by this Agreement, and the successor(s) or assign(s) intend(s) on carrying on the same or similar use of the facility, Dr. Hand, as a condition of sale, will obtain the written accession of the successor(s) or assign(s) to any obligations remaining under this Agreement for the remaining term of this Agreement.

25.     Non-waiver. Failure by the United states to seek enforcement of this Agreement pursuant to its terms with respect to any instance or provision will not be construed as a waiver to such enforcement with regard to other instances or provisions.

For Ray Hand, Ph.D. For the United States of America:








By: _____________________________
DR. RAY HAND
729 Northwest 17
Oklahoma City, Oklahoma 73106









BRADLEY J. SCHLOZMAN,
Acting Assistant Attorney General for Civil Rights




By: _____________________________

JOHN L. WODATCH, Chief
RENEE M. WOHLENHAUS, Deputy Chief
ROBERT J. MATHER, Trial Attorney
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Disability Rights Section - NYA
Washington, DC 20530
(202) 307-2236


Date: ___________________________
Date: ___________________________








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June 14, 2006