COMPLAINT DJ 202-23-41
In June 1996, the United States received an administrative complaint alleging a violation of title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12181-12189, and the implementing regulation, 28 C.F.R. pt. 36., by the Vasquez Funeral Home, a private entity in Chicago, Ilinois, that provides funeral services to the general public. Specifically, the complaint alleged that the Vasquez Funeral Home had charged a family $100 more to embalm the remains of their father because he died from complications related to AIDS than it charged to embalm other remains.
The United States and the Vasquez Funeral Home have consented to enter into this Settlement Agreement (the "Agreement") without a trial or an adjudication of any issues of fact or law.
The United States and the Vasquez Funeral Home agree that the Agreement and the resolution of the United States' investigation are in the public interest and that these matters can be resolved as set forth below.
ACCORDINGLY, IT IS HEREBY AGREED THAT:
1. The parties to this settlement are the United States Department of Justice ("United States") and the Vasquez Funeral Home.
2. The Vasquez Funeral Home is a private entity that provides funeral services to the general public and as such is a public accommodation within the meaning of title III of the ADA, 42 U.S.C. § 12181, and 28 C.F.R. § 36.104.
3. During the investigation of these allegations, the Department of Justice established that the Vasquez Funeral Home charged the complainant more to embalm a person who died from AIDS-related complications than it charged other clients to embalm persons who did not knowingly die from AIDS-related causes.
4. Since 1987, the Centers for Disease Control ("CDC"), of the U.S. Department of Health and Human Services, have recommended that health care workers and other personnel exposed to blood and certain other bodily fluids, including morticians, follow "universal precautions" in order to minimize the risk of transmission of the human immunodeficiency virus ("HIV"), the hepatitis B virus ("HBV"), and other bloodborne pathogens. Recommendations for prevention of HIV transmission in health-care settings, 36 Morbidity and Mortality Weekly Report ("MMWR") 1987; 36(suppl. no. 2S):1-18S.
5. Funeral home personnel also are subject to the requirements of the Bloodborne Pathogen Rule promulgated by the Occupational Safety and Health Administration ("OSHA") of the U.S. Department of Labor. 29 C.F.R. § 1910.1030 (1991). The Bloodborne Pathogen Rule requires employers to ensure that employees observe universal precautions when they are occupationally exposed to blood and other potentially infectious materials. 29 C.F.R. §§ 1910.1030(a) and (d)(1)-(d)(4).
6. "Universal precautions" set forth in the CDC guidelines and the Bloodborne Pathogen Rule, are principles of infection control. The concept of "universal precautions" stresses that all human blood and certain bodily fluids must be assumed to be infectious for HIV, HBV, and other bloodborne pathogens, because persons who are exposed to blood and other potentially infectious bodily fluids are not always in a position to know whether such bodily fluids presently harbor or once harbored an infectious disease. Therefore, health care workers and others, including morticians, should treat all persons as potentially infected with HIV and/or other blood-borne pathogens and adhere rigorously to the use of universal precautions.
7. There is no reasonable basis to believe that the embalming of persons who have died from AIDS-related complications, HBV or any other infectious disease poses a direct or significant threat to the health or safety of others, provided that persons who are occupationally exposed to blood and other potentially infectious materials follow universal precautions as defined by the CDC and by OSHA.
8. Therefore, there is no reasonable basis for charging more to embalm bodies harboring an infectious disease than those that do not knowingly harbor an infectious disease because universal precautions must be followed in all instances.
9. The actions described in paragraph 3 above constitute violations of the following provisions of the ADA: the duty to afford the goods and services of a place of public accommodation on an equal basis pursuant to 42 U.S.C. §12182(b)(1)(A)(ii) and 28 C.F.R. § 36.202(b) of the implementing regulation; the duty to eliminate discriminatory eligibility criteria pursuant to 42 U.S.C. §12182(b)(2)(A)(i) and 28 C.F.R. § 36.301 of the implementing regulation; the duty to make reasonable modifications of policies, practices, and procedures pursuant to 42 U.S.C. §12182(b)(2)(A)(ii) and 28 C.F.R. § 36.302(a); and the duty not to deny equal goods or services to an individual because of the known disability of an individual with whom the individual is known to have a relationship or association pursuant to 42 U.S.C. §12182(b)(1)(E) and 28 C.F.R. § 36.205 of the implementing regulation.
10. The Vasquez Funeral Home shall pay the complainant a sum of $3,000. Payment shall be made in the form of 12 checks in the amount of $250 drawn payable to the person who signed the contract and mailed to the client by first-class certified mail, by the 15th of each month for one year beginning June 1, 1998.
11. Within 30 days of the effective date of this Agreement, the Vasquez Funeral Home shall designate an employee who is charged with the responsibility of ensuring compliance with the ADA.
12. Upon the effective date of this Agreement, the Vasquez Funeral Home shall adopt the attached written policy that indicates that the Vasquez Funeral Home is committed to providing its services to all persons on an equal basis, without regard to disability, including its charges for embalming persons who have died from AIDS-related complications or another infectious disease. The policy shall be posted in a conspicuous place in the Vasquez Funeral Home.
13. Within 90 days of the effective date of this Agreement, the Vasquez Funeral Home shall conduct mandatory training of its employees who handle human remains regarding universal precautions and the OSHA requirements. The nature of the training program and materials shall be subject to the approval of the Department of Justice.
14. Within 120 days of the effective date of this Agreement, the Vasquez Funeral Home shall submit a report to the United States certifying that it has taken the steps required above to comply with this Agreement. The report shall provide: 1) evidence, including xerox copies of the checks, that indicate that the client was paid in accordance with the terms of this Agreement and, if not, why not; 2) a copy of the policy statement developed pursuant to paragraph 12 above; and 3) a detailed description of the training efforts undertaken by the Vasquez Funeral Home pursuant to paragraph 13 of this Agreement, including the materials used, the occupations of the persons required to be in attendance, and the credentials of the persons conducting the training.
15. By May 30, 1999, the Vasquez Funeral Home will certify in writing to the Department that it has timely made all payments required under this Agreement and, if not, why not.
16. The United States agrees that the Vasquez Funeral Home's completion of the steps set forth in this Agreement shall fully resolve the administrative complaint submitted to the United States relating to its former pricing policies for embalming persons who have died from AIDS-related complications.
17. The Attorney General is authorized, pursuant to 42 U.S.C. § 12188(b)(1)(B), to bring a civil action under title III, enforcing the ADA in any situation where a pattern or practice of discrimination is believed to exist or a matter of general public importance is raised. In consideration of the terms of this Agreement, the Attorney General agrees to refrain from undertaking further investigation or from filing civil suit under title III in this matter regarding the issues discussed herein, so long as the Vasquez Funeral Home complies with the terms of this Agreement.
18. The United States may review compliance with this Agreement at any time. If at any time within two years of the effective date of this Agreement, the United States finds that this Agreement or any requirement of this Agreement has been materially violated, or in the event that the Vasquez Funeral Home fails to comply in a timely fashion with any requirement of this Agreement, all terms of this Agreement shall become enforceable in United States district court.
19. This Agreement is a public document. A copy of this document or any information contained in it may be made available to any person by the Vasquez Funeral Home or the United States on request.
20. This Agreement constitutes the entire Agreement between the parties 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.
21. This Agreement is limited to the facts set forth herein and it 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 Vasquez Funeral Home to comply with all aspects of the ADA.
22. The effective date of this Agreement is the date of the last signature below. This Agreement shall be binding on the Vasquez Funeral Home as well as its principals, agents and successors in interest.
Agreed and Consented to:
For the United States:
BILL LANN LEE
Acting Assistant Attorney General
Civil Rights Division
JOHN L. WODATCH
IRENE L. BOWEN
EVE L. HILL
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 66738
Washington, D.C. 20035-6738
Signed: ____________, 1998
For the Vasquez Funeral Home:
RAYMOND L. VASQUEZ
CESAR A. VELARDE
Attorney at Law
1624 West 18th Street
Signed: ___________, 1998
Vasquez Funeral home, in recognition of our overriding obligation to care for the remains of the decedent in a dignified and respectful manner, to provide comfort and support to the families and friends of the decedent, and to conduct our business in accordance with the highest ethical standards, hereby pledges that, in accordance with the Americans with Disabilities Act, the Vasquez Funeral Home shall provide its goods, services and facilities to all persons on an equal basis, without regard to disability. As part of this policy, Vasquez Funeral Home pledges to provide on an equal basis its goods, services and facilities to the families or personal representatives of individuals who die with an infectious disease. No surcharges or additional fees will be imposed against families or personal representatives of those seeking funeral services for individuals who died with an infectious disease on the basis of the infectious disease. As a public accommodation under the Americans with Disabilities Act,
Vasquez Funeral Home is committed to full compliance with its responsibilities under the Americans with Disabilities Act.
February 7, 2001