SETTLEMENT AGREEMENT

BETWEEN

THE UNITED STATES OF AMERICA,

STEVEN SENICA, M.D., AND SENICA BRUNEAU, LTD.

U.S. DEPARTMENT OF JUSTICE COMPLAINT # 202-23-212

    PARTIES

  1. The parties to this Settlement Agreement are the United States of America, Steven Senica, M.D., and Senica Bruneau, Ltd., an Illinois professional corporation (hereinafter, the "Practice").
  2. The United States Department of Justice ("United States") is the federal agency responsible for administering and enforcing Title III of the Americans with Disabilities Act of 1990, as amended ("ADA"), 42 U.S.C. § 12181 et seq.
  3. BACKGROUND

  4. This matter was initiated by a complaint filed with the United States against Dr. Senica and the Practice, alleging violations of Title III of the ADA, 42 U.S.C. §§ 12181-12189, and its implementing regulation, 28 C.F.R. Part 36. Specifically, the Complainant, who is deaf, alleged that in September, 2009 Dr. Steven Senica, a member of the Practice, failed to provide a sign language interpreter when requested where necessary to provide effective communication.
  5. Complainant is deaf and relies upon American Sign Language as her primary means of communication. Complainant is an individual with a disability within the meaning of the ADA. 42 U.S.C. § 12102; 28 C.F.R. § 36.104.
  6. The Attorney General of the United States is authorized to investigate alleged violations of Title III of the ADA, and to bring a civil action in federal court if the United States 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).
  7. The Practice is a professional corporation providing medical services and is located in Downers Grove, Illinois. The Practice is a place of public accommodation covered by Title III of the ADA. 42 USC 1218 (7)(F); 28 C.F.R. § 36.104. As a public accommodation, the Practice is obligated to comply with the requirements of Title III of the ADA. Dr. Steven Senica is a member of the Practice.
  8. The ADA prohibits public accommodations from discriminating against an individual on the basis of disability in the full and equal enjoyment of its goods, services, privileges, advantages, or accommodations, and requires public accommodations to provide auxiliary aids and services when necessary to ensure effective communication. 42 U.S.C. §§ 12182(a), 12182(b)(2)(A)(iii); 28 C.F.R. §§ 36.201(a), 36.303.
  9. FINDINGS

  10. As a result of its investigation, the United States has determined that Dr. Senica and the Practice denied the Complainant a full and equal opportunity to participate in and benefit from the Practice's goods, services, facilities, privileges, advantages, or accommodations within the meaning of 42 U.S.C. §§ 12182(a), 12182(b)(2)(A)(iii); and 28 C.F.R. § 36.303.
  11. Dr. Senica and the Practice have cooperated fully in the United States' investigation and have maintained that both are committed to full compliance with the ADA.
  12. This Agreement is not an admission by Dr. Senica or the Practice that any action taken with respect to Complainant was wrongful, unlawful or in violation of any local, state or federal act or statute, or capable of inflicting damages or injury on Complainant, and Dr. Senica and the Practice specifically deny any wrongdoing or violation.
  13. The United States and the Practice have determined that the complaint filed with the United States can be resolved without litigation and have proposed and agreed to the terms of this Agreement.
  14. In consideration of the terms of this Agreement, the United States agrees to refrain from undertaking further investigation or filing a civil suit in this matter regarding the areas covered under the Remedial Action section of this Agreement, except as provided in the Enforcement Section of the Agreement.
  15. DEFINITIONS

  16. The term "auxiliary aids and services" includes qualified interpreters on-site or through video remote interpreting (VRI) services; note takers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing. 28 C.F.R. § 36.303.
  17. The terms "qualified interpreter" means an interpreter who, via a video remote interpreting (VRI) service or an on-site appearance, is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators. 28 C.F.R. § 36.104.
  18. The term "Patient" shall be broadly construed to include any individual who is deaf or hard of hearing and who is seeking or receiving health care services from the Practice.
  19. The term "Companion" means a person who is deaf or hard of hearing and is a family member, friend, or associate of an individual seeking access to, or participating in, the goods, services, facilities, privileges, advantages, or accommodations of a public accommodation, who, along with such individual, is an appropriate person with whom the public accommodation should communicate.
  20. REMEDIAL ACTION

  21. Consistent with the ADA, Dr. Senica and the Practice will not discriminate against any individual, including both Patients and Companions, on the basis of disability in the full and equal enjoyment of the Practice's goods, services, facilities, privileges, advantages, or accommodations by excluding or providing unequal treatment to persons with disabilities. 42 U.S.C. § 12182.
  22. Immediately as of the effective date of this Agreement, Dr. Senica and the Practice will provide to individuals who are deaf or hard of hearing appropriate auxiliary aids and services, including qualified interpreters, where necessary to ensure effective communication unless an undue burden or a fundamental alteration would result.
  23. The determination of appropriate auxiliary aids or services, and the timing, duration, and frequency with which they will be provided, will be made by Dr. Senica and/or the Practice in consultation with the person with a disability. In making these determinations, Dr. Senica and/or the Practice will take into account all relevant facts and circumstances, including without limitation the following:
    1. the nature, length, complexity, and importance of the communication at issue;
    2. the individual's communication skills and knowledge;
    3. the Patient's health status or changes thereto; and
    4. the Patient's and/or Companion's request for, or statement of, need for an interpreter.
  24. Examples of circumstances when it may be necessary to provide interpreters include, but are not limited to, obtaining a Patient's medical history or description of ailment; and explaining or discussing a Patient's diagnosis or prognosis; procedures, tests, and treatment; and medications prescribed.

  25. The determination of appropriate auxiliary aids and services, and the timing, duration, and frequency with which they will be provided, must be made at the time an appointment is scheduled for the Patient or on the arrival of the Patient or Companion at the Practice, whichever is earlier. Dr. Senica and/or the Practice will perform a communication assessment as part of each initial Patient assessment, consulting with the Patient, and document the results in the Patient's medical chart. In the event that communication is not effective, Dr. Senica and/or the Practice will reassess, in consultation with the Patient or Companion, as applicable, which auxiliary aids and services are needed to ensure effective communication, and document the results accordingly.
  26. If a Patient or a Companion has an ongoing relationship with the Practice, with respect to each of these subsequent visits, Dr. Senica and/or the Practice will continue to provide the appropriate auxiliary aids or services to the Patient or Companion without requiring a request for the appropriate auxiliary aids or services by the Patient or Companion for each visit. Dr. Senica and/or the Practice will keep appropriate records that reflect the ongoing provision of auxiliary aids and services to Patients and Companions, such as notations in a Patient's medical charts.
  27. If a Patient and/or Companion does not request auxiliary aids or services, but Dr. Senica and/or the Practice has reason to believe that such person would benefit from auxiliary aids or services, Dr. Senica and/or the Practice will specifically inform the Patient and/or Companion that auxiliary aids and services are available free of charge.
  28. Dr. Senica and/or the Practice will maintain a written policy explaining that it will provide auxiliary aids and services, including qualified interpreters, where such auxiliary aids and services are needed to ensure effective communication with Patients and Companions.
  29. Within sixty (60) days of the entry of this Agreement, the Practice shall post and maintain signs of conspicuous size and print in the Practice waiting area, examination rooms, and wherever a Patient's Bill of Rights is required by law to be posted. Such signs shall be to the following effect:

    In compliance with the Americans with Disabilities Act, qualified interpreters and other auxiliary aids and services are available free of charge to people who are deaf or hard-of-hearing.

  30. These signs will include the international symbols for "interpreters."

  31. Within thirty (30) days of the effective date of this Agreement, the Practice will establish and maintain a list of qualified interpreters or interpreter agencies that employ or arrange the services of qualified interpreters to ensure that qualified interpreter services are available.
  32. Within thirty (30) days of the effective date of this Agreement, the Practice will submit to the United States its list of qualified interpreter providers.
  33. Immediately, as of the effective date of this Agreement, the Practice will maintain a log of each request for an auxiliary aid or service. The log will record the time and date of the request, the name of the individual who made the request, the name of the individual for whom the auxiliary aid or service is being requested (if different from the requestor), the specific auxiliary aid or service requested, the time and date of the scheduled appointment (if a scheduled appointment was made), the time and date the auxiliary aid or service was provided, the type of auxiliary aid or service provided if different from what was requested, and, if applicable, a statement that the requested auxiliary aid or service was not provided.
  34. Within sixty (60) days of the effective date of this Agreement, and annually thereafter, the Practice will provide mandatory ADA training for all its employees, staff members, and other individuals affiliated with the Practice who might interact with Patients and/or Companions. Such training will be sufficient in duration and content to train the individual in:
    1. the various degrees of hearing impairment, language, and cultural diversity in the deaf community;
    2. identification of communication needs of persons who are deaf or hard of hearing;
    3. recommended and required charting procedures governing requests for auxiliary aids and services;
    4. types of auxiliary aids and services available at the Practice;
    5. the proper use and role of qualified interpreters;
    6. the proper use and role of video remote interpreting services;
    7. making and receiving calls through TTYs and the relay service;
    8. any other applicable requirements of this Agreement.
  35. The Practice will also provide specialized mandatory in-service training to physicians who are employed by the Practice (these physicians must also comply with training requirements in paragraph 28). Such training must be provided within sixty (60) days of the signing of this Agreement and will be conducted annually thereafter. This training will include the following objectives:
    1. to promptly identify communication needs and preferences of Patients and Companions;
    2. to secure qualified interpreter services as quickly as possible when necessary; and
    3. to ensure that their staff members notify the Practice of Patients and Companions as soon as patients schedule admissions, tests, surgeries, or other health care services at the Practice.
  36. The Practice will hire an outside advocacy group to conduct the initial trainings described in paragraphs 28 and 29 of this Agreement. For the required annual trainings thereafter, the Practice may conduct the trainings without the assistance of an independent group, but must sufficiently update and/or create training materials in order to ensure the trainings include any new developments to the ADA and its requirements. The Practice may also videotape the initial trainings for annual trainings thereafter.
  37. All employees who receive incoming telephone calls from the public will receive special instructions by the Practice on using TTYs or relay services to make, receive, and transfer telephone calls. Such training must be provided within 60 days of the signing of this Agreement and will be conducted annually thereafter.
  38. The Practice will provide the training specified above in paragraphs 28-31 to new employees within thirty (30) days after the commencement of their services for the Practice.
  39. Five (5) months after the effective date of this Agreement, and annually thereafter during the term of this Agreement, the Practice will provide a certification to the United States that the required trainings described in paragraphs 28-32 were completed.
  40. COMPENSATORY RELIEF AND RELEASE FOR COMPLAINANT

  41. Within fifteen (15) days of the effective date of this Agreement and delivery of the executed release identified in paragraph 37, whichever is later, the Practice will send by Federal Express or certified mail, return receipt requested, a check in the amount of three thousand, five hundred ($3,500.00) dollars made out to the Complainant. The check shall be mailed to: Office of the United States Attorney, 219 South Dearborn Street, 5th Floor, Chicago, Illinois 60604, Attn: Amanda Berndt.
  42. Within forty-five (45) days of the the effective date of this Agreement and delivery of the executed release identified in paragraph 37, whichever is later, the Practice will send by Federal Express, certified mail, return receipt requested, or hand delivery, a second check in the amount of three thousand, five hundred ($3,500.00) dollars made out to the Complainant. The check shall be mailed to: Office of the United States Attorney, 219 South Dearborn Street, 5th Floor, Chicago, Illinois 60604, Attn: Amanda Berndt.
  43. Between the two payments described in paragraphs 33 and 34, the Practice will pay The Complainant a total of seven thousand ($7,000.00) dollars within 45 days of the effective date of this Agreement and delivery of the executed release identified in paragraph 37.
  44. Within ten (10) days of the effective date of this Agreement, the United States will deliver to counsel for the Practice, a release signed by the Complainant. The release will be in the form of Attachment A.
  45. ENFORCEMENT

  46. Three (3) months after the effective date of this Agreement, and annually thereafter during the term of this Agreement, the Practice will provide the log described in paragraph 27 to the United States.
  47. During the term of this Agreement, Dr. Senica and/or the Practice will notify the United States if any individual brings any lawsuit, complaint, charge, or grievance alleging that Dr. Senica and/or the Practice failed to provide any auxiliary aids or services to any individual with a disability. Such notification must be provided in writing via certified mail within fifteen (15) days of the day when Dr. Senica and/or the Practice has received oral or written notice of the allegation and will include, at a minimum, the nature of the allegation, the name of the individual making the allegation, and any documentation possessed by Dr. Senica and/or the Practice or any of its agents or representatives relevant to the allegation.
  48. The United States may review compliance with this Agreement at any time. If the United States believes that Dr. Senica and/or the Practice has failed to comply in a timely manner with any requirement of this Agreement without obtaining sufficient advance written agreement with the United States for a modification of the relevant terms, the United States will so notify Dr. Senica and/or the Practice in writing, and will attempt to resolve the issue or issues in good faith. If the United States is unable to reach a satisfactory resolution of the issue or issues raised within thirty (30) days of the date it provides notice to Dr. Senica and/or the Practice, it may institute a civil action in federal district court to enforce the terms of this Agreement or Title III and may, in such action, seek any relief available under law.
  49. For purposes of the immediately preceding paragraph, it is a violation of this Agreement for Dr. Senica and/or the Practice to fail to comply in a timely manner with any of the requirements in this Agreement without obtaining sufficient advance written agreement with the United States for an extension of the relevant time frame imposed by the Agreement.
  50. Failure by the United States to initiate enforcement of this Agreement with regard to a deadline or other provision herein within six months shall be construed as a waiver of the United States' right to enforce that particular deadline or provision. Any such failure shall not be construed as a waiver of the United States' right to enforce other deadlines and provisions of this Agreement.
  51. This Agreement shall be binding on the United States and on the Practice and its agents, employees, shareholders, partners, and associates as long as those agents, employees, shareholders, partners, and associates are serving in that capacity. In the event the Practice seeks to transfer or assign all or part of its interest in any entity covered by this Agreement, and the successor or assignee intends to carry on the same or similar use of the entity, as a condition of sale, the Practice shall obtain the written accession of the successor or assign to any obligations remaining under this Agreement for the remaining term of this Agreement.
  52. This Agreement constitutes the entire agreement between the United States and the Practice on the matters raised herein, 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 the continuing responsibility of the Practice to comply with all aspects of the ADA.
  53. This Agreement will remain in effect for three (3) years from its effective date.
  54. The person signing this Agreement for the Practice represents that he is authorized to bind the Practice to this Agreement.
  55. The effective date of this Agreement is the date of the last signature below.

 

For Senica Bruneau, Ltd.

By: _________________________________

Date: 5/30/12

 

For Steven Senica, M.D.

By: _________________________________

 

Date:

For the United States of America:

PATRICK J. FITZGERALD
United States Attorney

 

By: ________________________________
AMANDA BERNDT
Assistant United States Attorney
219 South Dearborn, 5th Floor
Chicago, Illinois 60604
(312) 353-1413

 

Date: 6-11-12

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