A. On November 25, 2003, Dennis Christopher Butler, Rosemary Ciotti, George Aguehounde, Marsha Johnson (the “Individual Plaintiffs”), and The Disability Rights Council of Greater Washington commenced an action in the United States District Court for the District of Columbia against Washington Hospital Center, captioned Disability Rights Council et al. v. Washington Hospital Center, Case Number 1:03CV02434 (the “DRC/ERC Litigation”). The Plaintiffs in the DRC/ERC Litigation allege that Washington Hospital Center (“WHC”) discriminated against the Individual Plaintiffs by denying each of them the full and equal enjoyment of and access to its health care services and health care facilities, on the basis of their disabilities, in violation of Title III of the Americans with Disabilities Act, 42 U.S.C. §§12181 et seq. (the “ADA”), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.§ 794 (“Section 504”), and the District of Columbia Human Rights Act, D.C. Code §§ 1-2501 et seq., and that WHCs alleged violations of law caused injuries to the Plaintiffs. WHC has denied all material allegations in the DRC/ERC Litigation.
B. WHC is a subsidiary of MedStar Health, Inc. (“MedStar”), a nonprofit corporation located at 5565 Sterrett Place, Columbia, MD 21044. WHC owns and operates a hospital and adjacent facilities at 110 Irving Street, NW, Washington, DC 20010; and operates services within the Washington Hospital Center Physicians Office Building (the “POB”), at 106 Irving Street, NW, Washington, DC 20010; however, WHC does not currently own the POB. As a private entity that owns and operates medical service establishments, WHC is a public accommodation covered by Title III of the ADA, 42 U.S.C. § 12181(6); 28 C.F.R. § 36.104.
C. Dennis Christopher Butler, Rosemary Ciotti, George Aguehounde, and Marsha Johnson are individuals with mobility disabilities, each of whom uses a wheelchair. Mr. Butler is an individual with quadriplegia and uses a power wheelchair that is operated by a sip and puff system. Ms. Ciotti has lupus and related neurological complications that require her to use a power wheelchair for mobility. Mr. Aguehounde has a spinal cord injury and uses a power wheelchair. Ms. Johnson uses a power wheelchair for mobility due to polio and post-polio symptoms. Each of these individuals is an individual with a disability within the meaning of the ADA.
D. The Disability Rights Council of Greater Washington (the “DRC”) was a nonprofit advocacy group with a direct interest in protecting the rights of individuals with disabilities, including those with mobility impairments. The Equal Rights Center (the “ERC”) is the DRCs successor in interest, and is a nonprofit advocacy group organized to promote fair housing, fair employment, and equal access to public accommodations for all members of society without regard to race, color, religion, sex, disability, family status, national origin, or any federal, state, or local civil rights protected class, and equal opportunities for persons with disabilities, with respect to the use of public accommodations, transportation, and telecommunications facilities and services. On June 30, 2005, the DRC submitted Articles of Merger to the District of Columbia Department of Consumer and Regulatory Affairs, memorializing a merger of the DRC with ERC, a District of Columbia nonprofit corporation. On July 18, 2005, a Consent Motion for Substitution, pursuant to Federal Rule of Civil Procedure 25, was filed with the United States District Court for the District of Columbia, substituting ERC for the DRC in the DRC/ERC Litigation. An Order Granting Substitution was issued on July 19, 2005. The ERC and the Individual Plaintiffs are hereinafter collectively referred to as the “Plaintiffs.”
E. Title III of the ADA requires that a medical services entity provide individuals with disabilities, among other things, full and equal enjoyment of and access to its health care services and health care facilities; reasonable modifications to its policies, practices, and procedures when necessary to make health care services fully available to individuals with disabilities; and auxiliary aids and services. Title III also requires that the entity remove architectural barriers where such removal is readily achievable and comply with the architectural requirements for new construction and alterations.
F. The Plaintiffs allegations in the DRC/ERC Litigation include, among other things, not being placed in an accessible inpatient room; being examined on inaccessible equipment which required them to be lifted onto an examination table; having such lifting performed in an improper manner; having to wait significantly longer than other patients for an outpatient exam because the examination room with an accessible table was occupied; not receiving adequate inpatient services required as a result of a disability, such as assistance with eating, drinking and having bowel movements; and not timely receiving accessible equipment needed as an inpatient, such as an accessible call button and telephone. There is no allegation in the DRC/ERC Litigation of any medical malpractice on the part of WHC, but rather the above allegations relate solely to claims that WHC violated Title III of the ADA, Section 504 of the Rehabilitation Act, and the District of Columbia Human Rights Act.
G. In addition to the DRC/ERC Litigation, the Plaintiffs filed an administrative complaint with the United States Department of Justice (“DOJ”) making the same allegations (the “DOJ Complaint”). DOJ, which is not a party to the DRC/ERC Litigation, conducted an investigation of the complaint it received against WHC under the authority granted under Section 308(b)(1) of the ADA, 42 U.S.C. § 12188(b)(1). The Attorney General of the United States is authorized, pursuant to 42 U.S.C. § 12188(b)(1)(B) of the ADA, to bring a civil action under Title III to enforce 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.
H. After investigating, DOJ concluded that WHC had violated certain provisions of the ADA by denying equal access to medical services for individuals with disabilities. WHC has denied, and continues to deny, that it has violated the ADA.
I. The parties to the DRC/ERC Litigation, after good-faith negotiation, have determined that the DRC/ERC Litigation should be resolved through a comprehensive Settlement Agreement (“Agreement”), the terms of which are set forth fully herein.
J. DOJ, having participated in the negotiations among the parties to the DRC/ERC Litigation, and having conducted its own investigation of the matters addressed by this Agreement, believes that the public interest will be served by entering into this Agreement, the terms of which are set forth fully herein.
K. In order to avoid unnecessary and costly litigation, and not as an admission of liability, the parties have agreed to resolve the DRC/ERC Litigation and the DOJ Complaint as set forth below.
L. The Plaintiffs and DOJ recognize that WHC has cooperated fully in resolving alleged disputes and has demonstrated a strong commitment to providing equal access to its services and facilities for persons with disabilities, including the goals of ensuring that inpatients with mobility disabilities will be placed in accessible rooms; that patients with mobility disabilities undergoing examinations will be examined in an appropriate manner by trained personnel; that accessible equipment (such as adjustable exam tables, Hoyer lifts, wheelchair scales, and accessible call buttons) will be available to patients who need it; and that additional policies and training will be implemented to ensure that individuals with disabilities are not discriminated against on the basis of disability in the full and equal enjoyment of the services, facilities, and other accommodations provided by WHC and have an opportunity to benefit from the medical services provided by WHC that is equal to the opportunity afforded other individuals. The parties recognize and agree that this statement of the goals of this Agreement is not intended to enlarge or otherwise modify the specific obligations set forth in this Agreement.
II. COORDINATION AND OVERSIGHT
A. ADA Officer.
1. Appointment. Within 30 days of the Effective Date of this Agreement, as such term is defined in Paragraph VIII.N. below, in order to oversee the implementation of this Agreement and to perform the additional functions described below, WHC shall appoint an ADA Officer. The ADA Officer position shall be maintained throughout the Term of this Agreement, as defined in Paragraph VIII.R. below. The individual selected to be the ADA Officer and his or her successors shall be subject to approval by DOJ, which approval shall not be unreasonably withheld. DOJ shall approve or reject the proposed individual within 15 days of its receipt of the proposed individual’s qualifications. Any person appointed under this paragraph shall be a regular employee of WHC and shall have experience in hospital administration and a background or training in disability issues. The ADA Officer must have authority within WHC to implement changes and effectuate this Agreement. WHC has appointed and DOJ has approved Ms. Renee P. Landry as the ADA Officer for WHC. Ms. Landry currently serves as Vice President of Support Services and has experience in hospital administration. She will attend training on Title III of the ADA as it applies to medical facilities and disability awareness within 60 days of the Effective Date of this Agreement. Such training and the person(s) or organization(s) who will conduct the training shall be selected by WHC and approved by DOJ, which approval shall not be unreasonably withheld.
2. Responsibilities. The ADA Officer shall serve as WHC’s primary administrative contact on disability issues for the public and for the parties to this Agreement. The ADA Officer will be responsible for WHC’s compliance with Title III of the ADA and Section 504, and for implementing and administering WHC’s obligations under this Agreement, including compliance with all reporting requirements herein. The ADA Officer, jointly with the designated consultant or expert, shall carry out the obligations set forth in Sections III - VI below. The ADA Officer shall be responsible for ensuring that disability-related issues and complaints raised by patients and others are addressed and for supervising the Environment of Care Committee with respect to resolving disability-related matters, as set forth in Paragraph II.C. below. The ADA Officer will consult with the Advisory Resource Group established pursuant to Paragraph II.G. below, as needed, in carrying out his or her responsibilities.
WHC will use its existing Patient Complaint Process for patients with disabilities or their family members to submit complaints, comments, and questions regarding accommodation or treatment issues. The Patient Complaint Process provides a phone number for patients, their friends, family, and other guests to use to lodge a complaint with the Patient and Guest Services Department ("PGSD"). This phone number is currently designated the Customer Care Number and, as of the Effective Date of this Agreement, will also be designated the ADA Disability Assistance Number. While the process for raising an ADA concern will be the same as for other patient complaints, the ADA Disability Assistance Number and ADA Disability Assistance Process shall be separately designated as such on all materials describing these services. When a PGSD representative receives a disability-related complaint, s/he will investigate and try to resolve the complaint. If s/he is unable to do so, s/he will consult with either the Clinical Specialist or Non-Clinical Specialist designated for this process, depending on the nature of the complaint. The Clinical and Non-Clinical Specialists are management-level employees with an expertise in an area relevant to the resolution of disability-related issues (e.g., background in facilities, equipment, lifting mechanics, etc. for Non-Clinical Specialist; and patient care education/training for Clinical Specialist), selected by WHC to participate in the ADA Complaint review process. If the Specialist is unable to resolve the complaint, the Specialist will notify the ADA Officer, who will assist in resolving the complaint. All reasonable efforts must be made to resolve the complaint in a timely way; what is timely will depend on the nature of the complaint. The PGSD will maintain regular Occurrence Reports documenting each complaint received and its resolution. A chart illustrating the Patient ADA Disability Assistance Process is attached as Exhibit A hereto and hereby made a part of this Agreement.
1. Within 60 days of the Effective Date of this Agreement, the Clinical and Non-Clinical Specialists designated for the ADA Disability Assistance Process will attend training on Title III of the ADA as it applies to medical facilities and interacting with individuals with disabilities.
2. Within 30 days of the Effective Date of this Agreement, WHC shall place a sticker on each inpatient room telephone that depicts the International Symbol of Accessibility, the phone number for the ADA Disability Assistance Number, and to the extent space allows, the words “ADA Disability Assistance Number.” The sticker shall also be added to all telephones available for patients that have special adaptive features, such as voice-activated telephones and TTY telephones. TTY telephones shall also have a sticker on them with the local Relay number (711).
3. Within the next scheduled publication cycle of WHC’s Patient Information Guide, but no later than 120 days from WHC’s receipt of DOJ’s approval of the language for the ADA Brochure, WHC shall revise its Patient Information Guide to incorporate the information developed jointly with DOJ for WHC’s ADA Brochure, as set forth in more detail in Paragraph V.G. below. This information shall include an explanation of patients’ rights and remedies under the ADA and Section 504 in a hospital setting, and shall contain WHC’s ADA Disability Assistance Number and an explanation of WHC’s ADA Disability Assistance Process. The Patient Information Guide shall be made available to individuals with vision impairments in compliance with the policy on effective communication to be developed under Section V below.
C. Environment of Care Committee.
The Environment of Care Committee ("EOCC") is a multi-disciplinary standing committee that meets at least quarterly. Within 30 days of the Effective Date of this Agreement, the members of the Committee will include the Clinical and Non-Clinical Specialists described in Paragraph II.B. above, and representatives from other disciplines needed to address compliance with this Agreement as determined by WHC. The EOCC will be used to ensure that the Patient Complaint Process is effectively addressing requests for ADA assistance from patients with disabilities or their families or guests. The EOCC will receive regular reports from the PGSD containing summaries of ADA complaints sufficient to ensure that any institutional issues that are leading to recurring problems are addressed and resolved. If necessary, the EOCC will also be available to consider disability-related policy issues that arise through other channels, such as the review and development of WHC’s disability-related policies and procedures as set forth in Section V below. The EOCC will report to the ADA Officer.
D. ADA Consultant on Policies and Training.
Within 30 days of the Effective Date of this Agreement, WHC shall appoint an ADA Consultant on Policies and Training (“ADA Consultant”). The individual selected to be the ADA Consultant and his/her successors shall be subject to approval by DOJ and ERC, which approval shall not be unreasonably withheld. DOJ and ERC shall approve or reject the proposed individual within 15 days of receiving the proposed individual’s qualifications. The ADA Consultant shall have experience in policy and training development and a background or training in disability issues in the health care field. The ADA Consultant shall serve in a consulting capacity, not as a regular employee, and shall serve as long as needed to fulfill WHC’s obligations under this Agreement. The ADA Consultant shall be paid by WHC. WHC has appointed and DOJ and ERC have approved Paul R. Rao, Ph.D, to be the ADA Consultant. Dr. Rao is currently the Vice President of Clinical Services, Quality Improvement and Corporate Compliance at National Rehabilitation Hospital in Washington D.C., and an expert on policy development, rehabilitation facilities and stroke rehabilitation.
The ADA Consultant on Policies and Training, jointly with the ADA Officer, will review, revise, and create policies and procedures relating to the treatment and care of individuals with disabilities, and will develop and coordinate the training program, as set forth in Sections V and VI below. The ADA Consultant may consult with the Advisory Resource Group, as necessary to obtain feedback and insight, as set forth in Paragraph II.G. below.
E. ADA Equipment Expert.
Within 60 days of the Effective Date of this Agreement, WHC shall appoint an ADA Equipment Expert. The individual selected to be the ADA Equipment Expert and his/her successors shall be subject to approval by DOJ, which approval shall not be unreasonably withheld. DOJ shall approve or reject the proposed individual within 15 days of its receipt of the proposed individual’s qualifications. The Equipment Expert shall have knowledge of the ADA and the needs of individuals with disabilities relating to using medical equipment, and shall have or be able to acquire knowledge of medical equipment currently available on the market and under development, especially with regard to adaptive equipment, and of the medical equipment needed to provide equal access to medical services for individuals with disabilities (e.g., padded leg supports on a gynecological exam table). The Equipment Expert shall survey certain equipment and determine necessary acquisitions and modifications, jointly with the ADA Officer, as set forth in Paragraph IV.C. below. The Equipment Expert shall consult with the Advisory Resource Group, as needed, regarding the survey of equipment, as set forth in Paragraph II.G. below.
F. ADA Architectural Expert. Within 60 days of the Effective Date of this Agreement, WHC shall appoint an ADA Architectural Expert. The individual selected to be the ADA Architectural Expert and his/her successors shall be subject to approval by DOJ, which approval shall not be unreasonably withheld. DOJ shall approve or reject the proposed individual within 15 days of its receipt of the proposed individual’s qualifications. The Architectural Expert shall be responsible for surveying the WHC facility for architectural barriers, and for determining, jointly with the ADA Officer, appropriate barrier removal, as set forth in Section III below. The Architectural Expert shall have expertise in conducting ADA architectural compliance surveys, preferably in a medical setting.
G. Advisory Resource Group of Persons with Disabilities (“Advisory Resource Group”).
Within 60 days of the Effective Date of this Agreement, WHC shall appoint a resource group comprised of individuals with disabilities, who also have specific professional knowledge regarding the provision of health care to people with disabilities, to serve in an advisory capacity to the ADA Officer, ADA Consultant, and ADA Equipment Expert, as set forth in Paragraphs II.A., II.D., and II.E. above. The individuals appointed to the Advisory Resource Group and their individual successors shall be subject to approval by DOJ, which approval shall not be unreasonably withheld. The Advisory Resource Group or individual members of the Advisory Resource Group with the appropriate knowledge and experience shall be consulted with regard to the development of policies, the development of the training program, equipment purchases, and any other issues for which the input of the Advisory Resource Group will be helpful. The group members may be employees of WHC, MedStar, or its affiliates.
III. STRUCTURAL MODIFICATIONS TO WHC BUILDINGS AND FACILITIES
A. Accessible Patient Room.
For purposes of this Agreement, an “Accessible Patient Room” must comply in all respects with the ADA Accessibility Standards (the “ADA Standards”) for new construction in effect at the time the room is renovated or constructed. The current ADA Standards are at 28 CFR §36.406 and Part 36, App. A. All Accessible Patient Rooms must: (i) contain an accessible toilet room; (ii) contain or have access to an accessible shower, consistent with the amenities provided in adjacent patient rooms; and (iii) contain and/or have access to all other amenities provided in or available to patients occupying adjacent rooms. All references to Accessible Patient Rooms herein shall be understood to refer to Accessible Patient Rooms as defined in this paragraph. DOJ may approve certain rooms as Accessible Patient Rooms that do not fully comply with the ADA Accessibility Standards.
B. Modifications to Patient Rooms and Restrooms.
1. Group 1. During the first 24 months following the Effective Date of this Agreement, WHC will modify the 23 existing patient rooms listed immediately below to create 23 fully compliant Accessible Patient Rooms. These rooms will be: 2E: 1, 5, 9, 11, 15, IMC1, IMC3; 4D: 27, 31; 5C: 7, 11, 19, 28; 5F 2; 2NE 10; 2NW 10; 3NE 10 (lead lined); 3NW 10; 4NE 10; 4NW 10; 5NW: 5, 8; 5NE 11. Notwithstanding the foregoing, because of space limitations in Rooms 5C 7, 11, and 19, these rooms will not be fully compliant with the ADA Standards because a patient will be able to transfer to the bed in each such room from one side of the bed only. The schedule for modifying these 23 rooms shall be as follows:
(a) During the first 12 months following the Effective Date of this Agreement, modifications to 12 of the Group 1 rooms will be completed, including, but not limited to, 2NE 10; 2NW 10; 3NE 10; 3NW 10; 4NE 10; and 4NW 10.
(b) During months 13 through 24 following the Effective Date of this Agreement, modifications to the remaining 11 rooms in Group 1 will be completed.
(c) Based on site visits to WHC, the parties to this Agreement believe that fully compliant patient rooms can be created within the existing footprints of the patient rooms listed in Paragraph III.B.1 above (except for Rooms 5C 7, 11, and 19). However, notwithstanding the language in Paragraph III.B.1. above, if WHC cannot create a fully compliant Accessible Patient Room, as defined in Paragraph III.A. above, within the existing footprint of the patient room because of space constraints, then WHC shall be obligated only to make the room as accessible as possible within the existing footprint. If WHC believes it cannot make a room specified in Paragraph III.B.1. above a fully compliant Accessible Patient Room because of such space constraints, WHC must provide drawings demonstrating why ADA compliance is not possible and seek approval from DOJ for its alternate design plan.
2. Group 2. During the 3rd, 4th and 5th years following the Effective Date of this Agreement, WHC will modify 12 additional existing patient rooms, at least 6 of which shall be located in WHC’s North Addition, to create 12 additional fully compliant Accessible Patient Rooms, regardless of cost. If WHC decides to locate any of the 6 remaining patient rooms in Group 2 in areas other than the North Addition, WHC agrees to use its best efforts to locate these rooms in medical specialty units that do not, at that time, have Accessible Patient Rooms. None of these 12 additional Accessible Patient Rooms shall be located in any of WHC’s maternity units. WHC shall complete the modifications for at least one Accessible Patient Room required by this paragraph within the 3rd year following the Effective Date of this Agreement.
3. Group 3. During the 4th and 5th years following the Effective Date of this Agreement, WHC shall expend at least $100,000 per year on direct construction and renovation costs for upgrading additional patient rooms (other than those rooms addressed in Paragraphs III.B.1. and 2., above) toward achieving the goal of having 10% of the total number of WHC’s inpatient hospital rooms (excluding ICU facilities) be Accessible Patient Rooms. At the beginning of each of these years, WHC will review with DOJ its plans for the expenditure of these funds during the year toward achieving additional patient room accessibility. If the expenditure of these funds is insufficient to achieve full ADA accessibility of additional patient rooms, WHC shall use its best efforts, in consultation with DOJ, to maximize patient room accessibility to the greatest extent possible by utilizing such funds.
4. New Tower Rooms. WHC has informed the parties that it is considering the construction of a new hospital tower at WHC, which will contain additional medical facilities including, inter alia, inpatient hospital rooms. If, within 5 years of the Effective Date of this Agreement, WHC receives notice from MedStar that funds have been committed and all necessary approvals have been obtained from MedStar to construct a hospital tower that will include any non-ICU patient rooms (the “Tower”), as evidenced by a MedStar Board Resolution or its equivalent, it shall immediately so notify DOJ and ERC in writing. Such notice shall be accompanied by evidence of MedStar’s approval in the form of a Board Resolution or similar corporate document, and the following terms shall apply:
(a) The Term of this Agreement, as more particularly set forth in Paragraph VIII.R. below, shall be extended to the date that the Tower construction is complete, with respect to matters concerning construction of the Tower only;
(b) WHC shall make twenty-five percent (25%) of the non-ICU patient rooms in the new Tower, or 25 non-ICU patient rooms, whichever is greater, Accessible Patient Rooms;
(c) In the event that more than one medical specialty unit is constructed within the Tower, WHC shall disperse the Accessible Patient Rooms constructed in the Tower among the various medical specialty units within the Tower;
(d) Before commencing construction of the Tower, WHC will provide DOJ a copy of the architectural plans for the Accessible Patient Rooms in the Tower prior to such plans becoming final. Within 15 business days of its receipt of such plans, DOJ shall identify any elements of the architectural plans for the patient rooms that do not comply with the ADA Standards. Any violations identified by DOJ must be limited to issues of design compliance with the ADA Standards for patient rooms. DOJ’s review of the plans, as described above, shall not be construed to be an approval of WHC’s design for the Tower with respect to other standards or elements of the building, other than the patient rooms. WHC will consider any proposed revisions and make appropriate changes in good faith. If the parties cannot agree on the recommendations, they shall follow the procedure set out in Paragraph VIII.D. below;
(e) Upon completion and final inspection of the Tower, WHC shall provide DOJ with a copy of the Certificate of Occupancy for the Tower or its equivalent, and copies of all documents required to demonstrate that the Tower has been completed and received all approvals needed to begin admitting and treating patients. WHC shall also provide the written certification of the project architect that the Accessible Patient Rooms in the Tower comply with the ADA Standards and have been constructed in a manner consistent with the plans previously approved by DOJ. The certification shall include “as built” drawings of the non-ICU patient rooms in the Tower. The drawings shall be certified by WHC’s architect as true, complete, and correct.
5. Relief from Group 3 Room Obligation. If WHC provides DOJ with the notice required by Paragraph III.B.4. above within 36 months following the Effective Date of this Agreement, WHC shall be relieved of its obligations with respect to the Group 3 Rooms; provided, however, that if construction on the Tower fails to commence within the earlier of: (i) 36 months of such notice; or (ii) two months prior to the expiration of the Term of the Agreement, WHC’s obligations with respect to the Group 3 Rooms shall be immediately reinstated and WHC shall be obligated to spend $100,000 per year on direct construction costs for renovations to patient rooms for the next two years, commencing on the date that the earlier of events (i) or (ii) above occurs. In such event, the Term of this Agreement, in its entirety, shall be extended until the date WHC fulfils its obligations under Paragraph III.B.3. above.
C. Survey of WHC.
1. Architectural Survey Tool. Within 30 days of the appointment and DOJ approval of the ADA Architectural Expert, as set forth in Paragraph II.E. above, WHC shall submit a survey tool prepared by the ADA Architectural Expert on which to collect the information to be gathered during the architectural survey, as described in further detail in Paragraph III.C.2. below, to DOJ for approval, which approval shall not be unreasonably withheld. The survey tool shall be designed to identify, in reasonable detail, elements that do not conform with the ADA Standards. DOJ shall approve or make recommendations for revisions to the survey tool within 15 days of receiving the survey tool. If DOJ recommends any revisions, WHC shall consider the proposed revisions and make appropriate changes in good faith. If the parties cannot agree on the survey tool, they shall follow the procedure set out in Paragraph VIII.D. below.
2. Completion of Architectural Survey. The ADA Architectural Expert shall complete a survey of all areas in which WHC provides services to the public (whether in the main hospital, POB, or other buildings), including: (i) all areas where WHC patients, whether inpatients or outpatients, are treated or receive medical services of any nature including diagnostic services (excluding inpatient bedrooms); (ii) all areas where WHC patients and their guests or other visitors transact business with WHC, including patient registration and financial transactions; and (iii) all other areas open to patients and the public, including, but not limited to, common areas, cafeterias, gift shops, chapels, counseling rooms, classrooms, parking garages, and public toilet rooms. The requirements of this paragraph apply to the POB and other buildings to the extent that WHC owns or has ownership interest in such structures, or is a tenant therein. WHC shall ensure that all original survey instruments completed while conducting the survey are retained during the Term of this Settlement Agreement, to be made available to DOJ, upon request.
3. Architectural Survey Report. Within 120 days of DOJ’s approval of the survey tool, the ADA Officer, in consultation with the ADA Architectural Expert, shall write and submit to DOJ a report of the survey providing, for each element: (a) a description of each element that deviates from the ADA Standards for Accessible Design, 28 CFR Part 36, App. A; (b) a description of what, if any, readily achievable barrier removal is necessary to make the element accessible to individuals with disabilities, including mobility disabilities (e.g., the modification of counter heights, signage, door width, accessible routes); and (c) a plan for removing each barrier identified or a proposed readily achievable alternative to barrier removal, as described immediately below (the “Barrier Removal Plan”). The Barrier Removal Plan shall provide a description of the remedial action to be taken to remove each barrier and set forth a proposed schedule. For any barrier whose removal WHC determines is not readily achievable and/or will not make WHC’s services more usable for individuals with disabilities, WHC shall determine which readily achievable alternative to barrier removal would be appropriate to ensure access to the services and explain the reason for its determination. Any such alternatives to barrier removal shall be included in the written policies and procedures required to be provided to DOJ pursuant to Section V. DOJ shall approve or offer revisions to the Barrier Removal Plan within 30 days of receiving the report. If the parties cannot agree on the list of barriers to be removed or the schedule for barrier removal, they shall follow the procedure set out in Paragraph VIII.D. below. Upon agreement, WHC shall immediately implement the Barrier Removal Plan in accordance with the schedule set forth therein.
4. Readily Achievable Barrier Removal Standard. For purposes of this Agreement, the readily achievable barrier removal standard, 28 CFR § 36.304, will define what architectural changes are required by WHC as a result of the survey set forth in Paragraph III.C. The readily achievable barrier removal standard applies for purposes of this Agreement only, and does not reflect a determination by DOJ or the Plaintiffs that it is the correct standard, in contrast to the new construction or alterations standard, to apply in any other legal context for any particular area of WHC.
D. Reporting Requirements.
1. Updates. DOJ may, from time to time, request WHC to provide updates on the progress of its modifications, and/or copies of architectural plans, until such time as WHC notifies DOJ that such modifications have been completed. Any such requests for updates shall be made in writing by DOJ to the ADA Officer and DOJ shall provide WHC with a reasonable time period, not to exceed 30 days, in which to respond to such requests.
2. Final Barrier Removal Report. Within 30 days of the last date on which barrier removal is required to be completed in accordance with the Barrier Removal Plan, WHC shall deliver to DOJ a Final Barrier Removal Report in which it shall certify to DOJ, in writing, that it has fulfilled all of its obligations under the Barrier Removal Plan (the "Final Report"). The Final Report shall set forth each of the barriers required to be removed pursuant to the Barrier Removal Plan and shall describe the steps WHC has taken to remove each barrier. The Final Report shall include “as built” drawings depicting the architectural changes required by the Barrier Removal Plan, to the extent they exist or are required for the particlar modification contemplated. The drawings shall be certified by WHC’s architect as true, complete, and correct. Upon its receipt of the certified Final Report, DOJ may request a site visit to verify that the required modifications have been made, as agreed. If the parties have agreed upon certain readily achievable alternatives to barrier removal, the Final Report shall include copies of all written policies and procedures setting forth such alternatives to barrier removal, which shall be certified as true, complete, and correct by WHC.
IV. ACCESSIBLE MEDICAL EQUIPMENT
1. Accessible Equipment. For purposes of this Agreement, accessible equipment means equipment that is accessible to and usable by persons with disabilities.
2. Accessible Equipment Requiring Transfer. For purposes of this Agreement, in order to be deemed accessible, any piece of medical equipment to which patients must transfer for examination or treatment purposes, including, but not limited to, examination tables and chairs, tables used for radiologic exams, and gurneys, shall lower to a point no greater than 17 - 19 inches from the floor, shall be capable of being locked or otherwise fixed into position so as to permit a safe transfer from a wheelchair or other mobility device without slipping, and shall have a protective padded surface (unless such a surface is inconsistent with the table’s intended use). Tables and gurneys that can be lowered closest to the floor (i.e., to 17 inches) are preferred because they will provide better access for more individuals with disabilities, and WHC is encouraged to select such tables. Accessible patient beds are separately addressed in Paragraph IV.B.3. below.
B. Purchase and Distribution of Accessible Examination Tables, Chairs, and Patient Beds.
1. Initial Purchase of Examination Tables and Chairs.
(a) Initial Purchase of Accessible Examination Tables/Chairs. WHC hereby agrees to purchase and place one accessible examination table or examination chair, as defined in Paragraph IV.A. above, as appropriate to the Department, in each Department that utilizes examination tables or chairs and which does not already have such an examination table or chair. Each table and/or chair purchased pursuant to this purchase obligation shall be equipped with all necessary ancillary equipment, as described in Paragraph IV.B.1.(e) below. This initial obligation does not apply to Departments where the examination tables are physically integrated with medical technologies (e.g., radiology or other imaging equipment); the need for such tables shall be evaluated during the equipment survey, to be conducted pursuant to Paragraph IV.C. below.
(b) Department and Clinic List. In order to assist the parties in understanding the location of existing accessible medical equipment and the possibility and feasibility of sharing equipment, within 60 days of the Effective Date of this Agreement, WHC will provide to DOJ a list of: (i) all WHC departments and clinics where patients (whether inpatients or outpatients) are examined, treated, or otherwise receive services; and (ii) the subset of those departments and clinics that treat or examine patients on an examination table or chair to which a patient must transfer. This list shall be certified by the ADA Officer as true, complete, and correct. Hereinafter, all WHC’s departments, clinics, and similar specialized treatment areas shall be referred to as “Departments.”
(c) Examination Equipment List. The ADA Officer, with the assistance of the Equipment Expert, will determine which make and model of accessible examination table and/or chair, including ancillary equipment, is appropriate for each Department. Within 105 days of the Effective Date of this Agreement, WHC shall submit a list of this equipment, with the make and model specified, to DOJ for its review. This list shall identify all equipment to be included in WHC’s initial purchase order. DOJ shall approve or make recommendations for revisions within 15 days of receiving the equipment list and proposed purchase order. If DOJ recommends any revisions, WHC shall consider the proposed revisions and make appropriate changes in good faith. If the parties cannot agree on the equipment to be purchased, they shall follow the procedure set out in Paragraph VIII.D. below. Tables and gurneys that can be lowered closest to the floor (i.e., to 17 inches) are preferred because they will provide better access for more individuals with disabilities, and WHC is encouraged to select such tables.
(d) Examination Table and Chair Purchase Schedule. Within 30 days of WHC's receipt of approval from DOJ pursuant to Paragraph IV.B.1(c) above, WHC shall place the initial purchase order for accessible tables and/or examination chairs, as approved by DOJ. When such equipment is received by WHC, it shall immediately be placed in the appropriate Department.
(e) Ancillary Equipment. All ancillary equipment used with the examination table or chair shall be adapted or adjustable for use by individuals with disabilities. Ancillary equipment includes items such as leg supports for gynecological examinations, protective padding, positioning straps, and additional supports or rails needed to ensure the safety and comfort of patients with disabilities.
(f) Limited Exception. While the parties anticipate that every Department will receive an accessible exam table or chair, if WHC believes that an accessible examination table or chair is not needed in a particular Department, then, within 60 days of the Effective Date of this Agreement, WHC shall provide documentation of such to DOJ and ERC and shall propose a process by which patient needs for an accessible examination table/chair in that location can be met. For any procedure routinely performed on an examination table/chair, WHC may not justify failing to provide an accessible examination table/chair on the grounds that the procedure can be performed in a patient’s wheelchair or personal mobility device. Further, any proposed process must ensure that the facilities, equipment, and services provided to patients with disabilities are the equivalent of, and are not inferior to, those provided to patients without disabilities. Within 30 days of receiving the documentation, DOJ and ERC will determine whether an accessible table/chair is needed in a given location and/or whether patient needs can be met by the process proposed by WHC. If DOJ, ERC and WHC cannot agree on the need for a table/chair, they will utilize the procedure set forth in Paragraph VIII.D. or VIII.E. below. Any alternative process for providing access to examination tables/chairs shall be included in the written policies and procedures required to be developed pursuant to Section V. This paragraph is intended to apply only in limited, unique circumstances (e.g., where two departments already share examination table equipment).
(g) Radiology Department and Clinic. Within 120 days of the Effective Date of this Agreement, the Radiology Department in the hospital building and the outpatient Radiology Clinic in the POB shall each have an accessible gurney and a lifting device (e.g., Hoyer lift) to assist patients in transferring to radiologic exam surfaces that are not accessible.
(h) Breast Health Center. Within 120 days of the Effective Date of this Agreement, the Breast Health Center in the POB shall have an accessible gurney or other appropriate lifting device (e.g., Hoyer lift) to assist patients in transferring to exam surfaces that are not accessible.
(i) Continence Center. Within 120 days of the Effective Date of this Agreement, the Continence Center in the POB shall have an accessible urological exam chair.
2. Subsequent Height-Adjustable Equipment Purchases. All height-adjustable equipment that patients must transfer to for examination or treatment purposes (excluding operating tables and hospital beds) that WHC purchases after the Effective Date of this Agreement shall be accessible, as defined in Paragraph IV.A.2. above, to individuals with disabilities. If equipment fully meeting the height requirements set forth in Paragraph IV.A.2 is not readily commercially available, WHC shall purchase equipment that comes closest to meeting the height requirements. If WHC determines, in its judgment, that an accessible model of a particular piece of equipment is available, but that the overall functionality of the accessible model is substantially less, or its cost substantially greater, than non-accessible alternatives, WHC may present its justification to DOJ and request approval to purchase the non-accessible alternative. DOJ shall respond within 30 days, or 3 business days for emergency situations as designated by WHC, and shall not unreasonably withhold approval.
If ancillary equipment is associated with the use of height-adjustable equipment (e.g., leg supports for gynecological exam tables), WHC will ensure that a reasonable percentage of accessible equipment (at least 25% and no less than 1) it purchases for each Department has ancillary equipment that is adapted or adjustable for use by individuals with disabilities. This paragraph does not apply to equipment identified in Paragraph IV.B.1 above.
3. Accessible Beds. Upon execution of this Agreement, WHC shall acquire a minimum of three height-adjustable, medical-surgical patient beds (“med-surg beds”) that lower to a point no greater than 17 - 19 inches from the floor (“Accessible Beds”). Until such time as WHC is able to develop and implement a barcode tracking system for tracking the location of its Accessible Beds electronically, WHC shall develop a procedure for holding a reserve supply of no fewer than three Accessible Beds to be available to meet requests from patients who use wheelchairs or similar mobility devices and who need an Accessible Bed to facilitate transfers between the patient’s wheelchair and hospital bed.
Within six months of the Effective Date of this Agreement, WHC agrees to purchase a sufficient number of Accessible Beds to ensure that all Accessible Patient Rooms existing as of that date are equipped with an Accessible Bed or Beds. This purchase shall include no fewer than ten Accessible Beds. Within the subsequent 18-month period thereafter, WHC agrees to purchase a sufficient number of additional Accessible Beds to ensure that all Group 1 Accessible Patient Rooms, as defined above in Paragraph III.B.1 above, contain an Accessible Bed or Beds. Thereafter, during the remaining term of this Agreement, whenever WHC places an order to purchase med-surg beds, it shall order a sufficient number of Accessible Beds to ensure that all Accessible Patient Rooms required or planned to be in service as of the date that the order of med-surg beds is reasonably anticipated to be delivered, contain an Accessible Bed or Beds.
WHC further agrees that, by the conclusion of the initial five-year term of this Agreement, all Accessible Patient Rooms planned to be in service as of that date, including all Accessible Patient Rooms required to be completed hereunder, shall be equipped with an Accessible Bed or Beds. If WHC receives final approval to construct the Tower described in Paragraph III.B.4. above, WHC will purchase, at the time WHC purchases the patient beds needed to equip the Tower, sufficient Accessible Beds such that every Accessible Patient Room contains an Accessible Bed or Beds.
C. Survey of Existing Equipment and Acquisition of Additional Equipment
1. Equipment Survey Tool. Within 60 days of the appointment and DOJ approval of the ADA Equipment Expert as set forth in Paragraph II.D. above, the Equipment Expert shall develop a survey tool on which to capture the information of a survey of existing equipment (as defined in Paragraph IV.C.2. below), and a list of equipment to be surveyed. WHC shall submit the survey tool and list of equipment to DOJ for approval, which approval shall not be unreasonably withheld. DOJ shall approve or make recommendations for revisions within 30 days of receiving the survey tool. If DOJ recommends any revisions, WHC shall consider the proposed revisions and make appropriate changes in good faith. If the parties cannot agree on the survey tool, they shall follow the procedure set out in Paragraph VIII.D. below.
2. Completion of Equipment Survey. Within 90 days of receiving DOJ’s approval of the survey tool, as set forth in Paragraph IV.C.1. above, the ADA Equipment Expert, with the assistance of the ADA Officer, shall complete a survey, in WHC and those areas of the POB that are under WHC’s control as a lessee, of equipment that is utilized in the care of patients and that can be potentially modified, supplemented or replaced to improve equal access to care for patients with disabilities in a meaningful way, including all equipment to which a patient is required to transfer (e.g., examination tables and ophthalmology equipment); operating tables and medical-surgical patient beds are excluded. The Equipment Expert, jointly with the ADA Officer, shall determine: (a) what, if any, additional equipment (e.g., examination tables and chairs, lifts, radiologic equipment, wheelchair scales, positioning equipment, specialized air mattresses, or other adaptive technology for patients with disabilities, such as an accessible call buttons and accessible water sources) should be purchased or modified to ensure that individuals with disabilities receive equal access to medical services; or (b) if no new equipment or modifications to existing equipment would overcome a barrier posed by the existing equipment, what alternatives should be utilized to ensure that individuals with disabilities receive equal access to medical services. The survey shall result in a definitive inventory of equipment. For the survey, the Equipment Expert, with the assistance of the ADA Officer, shall review and be familiar with the nature of the services provided in each Department; identify barriers to providing such services to individuals with disabilities of all kinds including, but not limited to, mobility impairments, visual impairments, hearing impairments, and cognitive and intellectual impairments; and identify the equipment or other methods needed to overcome barriers to providing service. The Equipment Expert shall interact with health care providers to gain an understanding of the services provided and the nature of the patient population served in each Department.
3. Equipment Survey Report. Within 120 days of receiving DOJ’s approval of the survey tool, WHC shall submit a report that describes the results of the survey to DOJ and ERC. The report shall include, for each Department, the nature of the services provided, the current equipment used in that Department, barriers to providing equal access to medical services, including, but not limited to, barriers posed by the equipment, recommendations for the purchase of additional equipment, the modification of existing equipment, and other methods to eliminate barriers, and a schedule for the recommended purchase and modification of the equipment and the implementation of other barrier removal. Within 45 days of receiving WHC’s report, DOJ and ERC shall either approve WHC’s recommendations or propose revisions. WHC shall consider any proposed revisions and make appropriate changes in good faith. If the parties cannot agree on the recommendations, they shall follow the procedure set out in Paragraph VIII.D. and/or VIII.E. below. Upon agreement, WHC shall immediately begin purchasing equipment in accordance with the schedule.
V. DEVELOPMENT OF DISABILITY-RELATED POLICIES AND PROCEDURES
A. Review and Submission of Policies and Procedures.
Within 120 days of the Effective Date of this Agreement, the ADA Officer, with the assistance of the ADA Consultant, shall: (1) review all existing policies and procedures relating to the services, treatment and care provided to individuals with disabilities (including, but not limited to, patients, their guests, and other visitors) for consistency with the ADA and this Agreement; (2) determine whether any additional policies or procedures, or changes to existing policies and procedures, are necessary to comply with the ADA or to effectuate the purposes of this Agreement and, if so, shall develop such policies and/or procedures; and (3) submit all of such policies and procedures, including revised policies and new policies, to DOJ and ERC.
B. Implementation of Policies and Procedures.
Within 45 days of receiving WHC’s revised or proposed policies, DOJ and ERC will either approve WHC’s policies or propose revisions. WHC shall consider any proposed revisions and make appropriate changes in good faith. If the parties cannot agree on the policies, they shall follow the procedure set out in Paragraph VIII.D. or VIII.E. below. Within 45 days of reaching agreement with DOJ and ERC on the policies, WHC shall finalize its policies and procedures, disseminate them to the appropriate personnel, implement them, and provide copies of each to DOJ and ERC.
C. Advisory Resource Group and EOCC Review.
The ADA Officer and ADA Consultant shall consult with the Advisory Resource Group and EOCC and solicit their comments on revised and newly created policies before the policies are submitted to DOJ and ERC, and at other points in the policy review process, as needed.
D. Content of Policies and Procedures.
The policies and procedures to be reviewed, revised, and/or developed by the ADA Consultant and the ADA Officer shall include, but not be limited to, policies and procedures for:
1. A statement of compliance with Title III of the ADA and Section 504 generally;
2. The acquisition, provision, and use of all equipment with regard to accessibility (including location, maintenance and updating of equipment, sharing among Departments, and dissemination of information regarding accessible equipment);
3. The use of appropriate techniques for safely transferring and positioning patients with disabilities (especially for gynecological and radiological exams) including, if practicable within the organizational structure of WHC, the establishment and maintenance of a lift team of individuals with advanced training in lifting, whose responsibility will be to transfer patients throughout the hospital;
4. The maintenance of accessible features and accessibility within WHC, including, but not limited to, ensuring that accessible restrooms, patient rooms, hallways, elevator buttons, etc., are kept free from all obstacles, such as boxes, medical supplies, furniture, trash receptacles, and newspaper racks;
5. The provision of auxiliary aids and services for individuals who are deaf or hard of hearing, including, but not limited to, the provision of communication-related equipment and sign language interpreters, and closed caption televisions in waiting areas and patient bedrooms;
6. The use of service animals;
7. The effective communication of written materials to individuals with visual impairments;
8. Planning for inpatient hospital care, including, but not limited to:
(a) A policy to include an individualized assessment for every patient with a disability to determine any specialized needs, including, but not limited to, diet, bowel program, communication, and mobility-related needs, and a program to implement the services identified as needed in the assessment;
(b) Procedures for determining the inpatient placement of a patient who needs an accessible room, since accessible rooms are not available in every Nursing Unit. When the hospital is not operating at full inpatient capacity, WHC shall use its best efforts to reserve Accessible Patient Rooms for persons with disabilities and hold them open until all other rooms in the Nursing Unit are filled. When a patient with a disability who needs an accessible room is admitted, WHC shall use its best efforts to arrange for an accessible room for that patient, consistent with medical standards of care. If there is an accessible room in the Nursing Unit to which the patient would ordinarily be assigned, but it is occupied by a non-disabled patient, WHC shall use its best efforts, consistent with medical standards of care, to reassign patient rooms so that the accessible room can be utilized by the patient with the disability. If no Accessible Patient Room consistent with the patient’s medical needs is available when a patient with a disability who needs an accessible room is admitted, WHC shall continue to use its best efforts, for the duration of the patient’s stay, to arrange for an Accessible Patient Room for the patient as soon as possible, if so desired by the patient. Staff from the Admissions Department shall be responsible for seeking an accessible room for the patient, and shall do so at least once in every 24 hour period after the patient’s admission;
(c) Procedures for ensuring that an Accessible Bed is made available to individuals with mobility impairments who use wheelchairs or similar mobility devices and who need an Accessible Bed to facilitate transfer.
9. Planning for outpatient care. The policy will include a provision that the individual responsible for scheduling outpatient appointments in each of WHC's outpatient areas will exercise his or her best efforts to inquire, while scheduling the appointment, whether the patient will need a modification of policies or procedures or auxiliary aids and services in order to receive equal medical services. These modifications or auxiliary aids and services may include an adjustable exam table, Hoyer lift, sign language interpreter or other assistance. WHC will ensure that such assistance is provided to the patient at the time of the appointment. The patient Sign-In Sheet for each outpatient clinic will include a statement, along with the international symbol of accessibility, directing patients to inform the staff if they will need assistance at the exam due to a disability;
10. Assisting patients in resolving disability-based difficulties encountered during the course of their care. The policy should set out a process for registering complaints and identify the ADA Officer who is ultimately responsible for resolving complaints, and shall be consistent with Exhibit A hereto;
11. Methods and materials for communicating with individuals who have cognitive and/or intellectual impairments, including methods for communicating information concerning both medical procedures and post-procedure patient care information;
12. Readily achievable alternatives to barrier removal, if any;
13. Review of policies to ensure that existing policies are not inconsistent with federal disability law, including the ADA and Section 504;
14. Ensuring that WHC does not charge a patient with a disability who is in need of an Accessible Patient Room more for the accessible patient room than it would charge for a non-accessible patient room in which the patient would otherwise have been placed; and
15. Ensuring that WHC, in providing shuttle bus service between WHC and other locations, such as the Metro (either directly or through agreement with third parties), shall: use only wheelchair accessible shuttle buses, maintain the lifts and other accessibility features of such vehicles so they are usable by individuals who use wheelchairs; train shuttle drivers and maintenance personnel in the maintenance and safe operation of the lifts, restraints, and other accessibility features; and provide a phone number for riders to confirm that all accessible vehicles are in service.
E. Procedure for admitting inpatients with spinal cord injuries and similar conditions.
When an individual who has an existing spinal cord injury or similar condition is admitted as an inpatient, WHC shall, in the initial nursing intake process, discuss particular concerns relating to that individual’s spinal cord injury or similar condition with the patient, including, but not limited to, concerns regarding bowel or bladder program, diet, eating/drinking assistance, turning, and communication needs (e.g., call buttons, telephones). This discussion shall be documented on the initial intake form, Interdisciplinary Patient Data Base Form 1236 (“Form 1236"), which shall be revised within 60 days of the Effective date of this Agreement to prompt the nurse to discuss these specific matters with the patient.
Within 60 days of the Effective Date of this Agreement, the rehabilitation risk screening portion of Form 1236 will be expanded to ask whether the patient has a spinal cord injury or other long-term condition that results in paraplegia, quadriplegia, or otherwise substantially limits the use of one’s limbs. A positive answer will trigger a Physical Therapy/Occupational Therapy (“PT/OT”) screening assessment by a team member from the Rehabilitation Department (e.g., a physical therapist), which will occur as soon as possible based on prioritization of needs by the rehabilitation department, but no later than 48 hours after the patient’s admission to the nursing unit. The assessment shall involve a more detailed discussion with the patient of particular needs, such as pressure sores, bowel programs, and autonomic dysreflexia, and will evaluate whether the patient needs an additional physiatry consultation. The PT/OT consultant shall be available to consult with the patient throughout his or her hospital stay, if necessary, and shall leave his or her telephone number with the patient. In addition, the PT/OT consultant shall discuss with the patient’s medical and nursing staff any additional needs of the patient relating to his or her disability, including, but not limited to, reviewing the patient’s bowel program, required frequency of turning, modifications to communication equipment, and assistance with eating and drinking, if necessary.
F. ADA Poster.
A poster outlining patients’ rights and remedies under the ADA and Section 504 in a hospital setting, along with the ADA Disability Assistance Number, shall be posted and maintained in each outpatient reception area and in the common area associated with each inpatient unit. The poster shall include the ADA Disability Assistance telephone number. DOJ shall create the ADA Poster, with input from the ADA Officer, within 60 days of the Effective Date of this Agreement, and it shall be reproduced and posted by WHC within 90 days of its receipt of the text of the final poster.
G. ADA Brochure.
Within 30 days of the Effective Date of this Agreement, WHC, with input from DOJ, shall submit a draft ADA brochure to DOJ. The draft brochure shall depict the international symbol of accessibility on its front cover and shall contain (i) a description of the equipment and services available to WHC’s patients with disabilities and an explanation the process for obtaining them; (ii) WHC’s ADA Disability Assistance Number; and (iii) an explanation of WHC’s ADA Disability Assistance Process. The ADA Brochure will also include an explanation of patients’ rights and remedies under the ADA and Section 504 in a hospital setting, to be provided by DOJ within 15 days of the Effective Date of this Agreement. DOJ shall approve or suggest revisions to the language within 10 days of its receipt of the draft brochure. WHC shall consider any proposed revisions and make appropriate changes in good faith. If the parties cannot agree on the recommendations, they shall follow the procedure set out in Paragraph VIII.D. below.
WHC shall make the ADA Brochure available for distribution within 30 days of its receipt of final approval from DOJ. The ADA Brochure shall be distributed to each inpatient upon admission and to each outpatient upon his or her initial registration at an outpatient clinic. The ADA Brochure shall also be available in places throughout the hospital where other patient education materials are located. The information and language developed for the ADA Brochure will be incorporated within the Patient Information Guide, as set forth Paragraph II.B.3. above.
A. Training Participants.
The ADA Consultant, in consultation with the ADA Officer, shall establish a training program for all employees involved in direct patient assistance on the policies identified in Section V above, on disability awareness, and on providing equal access to medical services for patients with disabilities, including, among other things, the particular needs and concerns of patients with mobility impairments (“disability training”). Employees involved in direct patient assistance include, but are not limited to: doctors, nurses, nurses aides, admissions staff, receptionists in outpatient facilities, and patient services assistants (orderlies). Doctors and nurse practitioners who practice at WHC but who are not employees of WHC shall also receive training in accordance with this paragraph. It is anticipated that the training program may vary for different categories of employees.
B. Training Schedule.
Disability training shall occur as soon as practicable, but no later than one year after the date the policies are approved pursuant to Paragraph V.B. above. Disability training may be offered in conjunction with other training provided by WHC. Thereafter, training for newly-hired employees involved in direct patient assistance shall occur within 3 months of hire. Disability training shall be repeated for existing employees periodically, as appropriate.
C. Selection of Trainer and Curriculum.
The ADA Consultant shall, in consultation with the Advisory Resource Group, select the trainer(s) (if used) and develop the training curriculum. Within 60 days after the policies identified in Section V above are approved, WHC shall develop and submit the training curriculum to DOJ for approval, which approval shall not be unreasonably withheld. Within 30 days of receiving the training curriculum, DOJ shall approve it or recommend revisions. If the parties cannot agree on the curriculum, they shall follow the procedure set out in Paragraph VIII.D. below.
VII. PAYMENTS TO THE PLAINTIFFS IN THE DRC/ERC LITIGATION
Pursuant to the terms of a Supplemental Settlement Agreement between the Plaintiffs and WHC, WHC shall pay damages to the Plaintiffs in an amount specified therein (the “Settlement Payment”).
VIII. IMPLEMENTATION AND ENFORCEMENT
A. ERC Release.
As a condition of WHC’s willingness to enter into this Agreement, and in consideration for the agreements of the parties contained in this Agreement, including the Settlement Payment, the Plaintiffs, with the intention of binding themselves, their respective heirs, beneficiaries, trustees, administrators, executors, assigns and legal representatives (collectively, the “Plaintiff Releasors”), hereby release, waive and forever discharge and hereby acknowledge full accord and satisfaction of, any and all claims, demands, causes of action, and liabilities of any kind whatsoever (upon any legal or equitable theory, whether contractual, common law or statutory, under federal, state or local law or otherwise), arising from facts or events that have taken place prior to or on the date of full and complete execution of this Agreement, whether known or unknown (with the exception of currently unknown claims unrelated to claims of disability discrimination), asserted or unasserted, by reason of any act, omission, transaction, agreement or occurrence that the Plaintiff Releasors ever had or now have against WHC or its successors, assigns, parents, subsidiaries, directors, officers, employees, or agents up to and including the date of the execution of this Agreement. Subject to and without limiting the generality of the foregoing, the Plaintiff Releasors hereby release and forever discharge WHC from:
1. Any and all claims relating to or arising from the Individual Plaintiffs’ treatment or any acts or omissions in connection herewith by WHC which form the subject of the Complaint filed by the Plaintiffs in the DRC/ERC Litigation, or which treatment, acts or omission could have been raised in the DRC/ERC Litigation;
2. Violation of rights on the basis of disability under any federal, state or local statute or ordinance, public policy or the common law, including, without limitation, any and all claims under Title III of the Americans with Disabilities Act, 42 U.S.C. §§12181, et seq.; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794, and the District of Columbia Human Rights Act, D.C. Code §§1-2501 et seq., and as such laws have been or may be amended, which claims could have been raised in the DRC/ERC Litigation; and
3. Any and all claims for monetary recovery for disability discrimination, as described in Paragraph VIII.A.2. above, including, without limitation, attorneys’ fees, experts’ fees, medical fees or expenses, costs and disbursements and the like, which could have been raised in the DRC/ERC Litigation.
B. ERC and Future Actions.
The Plaintiffs represent that they have not commenced or caused to be commenced, or participated, aided or cooperated in, any action, charge, complaint or proceeding of any kind (on their respective behalf and/or on behalf of any other person and/or on behalf of or as a member of any alleged class of persons) that is presently pending in any court or before any administrative, regulatory or investigative body or agency (whether public, quasi-public or private), against or involving WHC, other than this litigation and the related DOJ investigation. The Plaintiffs further represent that they will not participate, aid or cooperate in any such pending or future action, charge, complaint or proceeding relating to the facts which form the subject of this litigation, except pursuant to compulsory legal process or a court order, or except as necessary to enforce this Agreement. The Plaintiffs further agree that during the Term of DOJ’s Settlement Agreement, they will not commence, cause to be commenced, or participate in any action, charge, complaint or proceeding (on their respective behalf and/or on behalf of any other person and/or on behalf of or as a member of any alleged class of persons) alleging violations of Title III of the ADA by WHC, its parent, or any of its affiliates, subsidiaries or other related MedStar Health entities (listed on Exhibit B, which is attached hereto and hereby made a part of this Agreement) without first notifying such company, affiliate, subsidiary or entity of such allegations and providing it with no less than 90 days in which to respond to such notification. Additionally, Plaintiff ERC agrees that it will use its best efforts to encourage members who approach it for counseling and/or referral to legal counsel regarding any disability-related problems, concerns or complaints with WHC or any of its affiliates, subsidiaries, or other related MedStar Health entity, to provide no less than 90 days notice, as described above.
C. Closing of DOJ Investigation.
In consideration of, and consistent with, all the terms of this Agreement, the Attorney General agrees to refrain from filing a civil suit in this matter regarding all matters contained within this Agreement, except as provided in Paragraph VIII.G. and closes Complaint #202-16-120.
D. Dispute Resolution Process with DOJ.
If DOJ and WHC disagree about specific modifications to be made to facilities, barrier removal, equipment purchases, policies, or concerning any other topic about which the parties are required to come to an agreement, after following the procedures set out in Sections III, IV, V, and VI of this Agreement, as applicable, the parties shall meet and confer in a good-faith effort to resolve the disagreement. If the parties are unable to reach agreement after 90 days of good-faith negotiations they may, upon mutual agreement, utilize mediation. In conjunction with such mediation, only the provisions of this Agreement shall apply. If such negotiation and mediation fail to produce a timely resolution of the matter, then DOJ may use the procedure set out in Paragraph VIII.G. below.
E. Dispute Resolution Process with ERC.
If ERC and WHC disagree about specific modifications to be made to its facilities, policies, or any other topic about which the parties are required to come to an agreement, after following the procedures set out in Sections III, IV, and V of this Agreement, the parties shall meet and confer in a good-faith effort to resolve the disagreement. If the parties are unable to reach agreement after 60 days of good-faith negotiations they may utilize mediation. If such negotiation and mediation fail to produce a timely resolution of the matter, then ERC may use the procedure set out in Paragraph VIII.H. below.
F. Time Extensions.
With regard to any of the deadlines specified in this Agreement, any party, if it cannot meet the deadline specified, shall notify all other parties, at least 10 business days before the deadline, of the party’s inability to meet the deadline and the reason(s) why, and shall request an extension of time to a specific date. The other parties shall be reasonable in agreeing to extend deadlines and agree to a reasonable amount of time for the extension. If any deadline established by this Agreement falls on a weekend or a holiday, the deadline shall be extended to the next business day.
G. DOJ Compliance Review and Enforcement Procedure.
DOJ may review compliance with this Agreement at any time. If DOJ believes that this Agreement or any portion of it has been violated, it will so notify WHC in writing and it will attempt to resolve the issue or issues raised in good faith. If DOJ is unable to reach a satisfactory resolution of the issue or issues raised within 30 days of the date it provides notice to WHC, except with respect to matters previously negotiated and/or mediated pursuant to Paragraph VIII.D. above, for which no additional negotiation period is required, it may institute a civil action in federal district court to enforce the terms of this Agreement, or it may initiate appropriate steps to enforce Title III and Section 504 of the Rehabilitation Act.
H. ERC Enforcement Procedure.
If ERC believes that this Agreement or any portion of it has been violated, it will so notify WHC in writing and it will attempt to resolve the issue or issues raised in good faith. If ERC is unable to reach a satisfactory resolution of the issue or issues raised within 30 days of the date it provides notice to WHC, it may institute a civil action in federal district court seeking to enforce the terms of this Settlement Agreement.
I. DOJ Notice to WHC of Possible Violation.
If, during the Term of this Agreement, DOJ becomes aware of an alleged violation of Title III or Section 504 of the Rehabilitation Act by WHC with respect to matters not specifically covered by this Agreement, DOJ agrees to notify WHC of the alleged violation and permit WHC 60 days to resolve the matter through its internal processes or to provide an explanation as to why it believes the allegation is untrue. If WHC resolves the matter to the satisfaction of DOJ, DOJ agrees to refrain from undertaking further investigation against WHC on that matter.
J. Attorney Fees and Costs in Future Disputes between WHC and the ERC.
In disputes involving WHC and the ERC that are in the nature of an action that ERC could otherwise have brought as a claim under Title III of the ADA, e.g., for violation of new construction or alterations provisions or the failure to remove barriers, then notwithstanding which party brings the action, attorneys’ fees and costs will be awarded to the prevailing party in any such action as if 42 U.S.C. § 12205 applied and as if ERC were the plaintiff and WHC were the defendant. In any other action to enforce contractual commitments involving WHC, such as those involving reporting and record keeping, each side shall bear its own attorneys’ fees.
K. WHC Annual Reporting Requirements.
Twelve months after the Effective Date of this Agreement, and every year on the anniversary of the Effective Date thereafter until the expiration of this Agreement, WHC shall file a Compliance Report with DOJ and ERC, reporting on its compliance with the actions described in Sections II.B, III, IV, V, and VI above. The Compliance Report shall include: a listing of the types of additional equipment purchased and their locations; copies of new and revised policies; an outline of and the dates of the training provided pursuant to Section VI above; a description of the barrier removal completed; a current listing of Accessible Patient Rooms (including the medical specialty or specialties associated with each room and the number of Accessible Beds in each room); and copies of the PGSD Occurrence Reports, as described in Paragraph II.B above (to be included in the DOJ version only). WHC need not resubmit documents or reports previously provided to the parties. The Report shall be sent by overnight mail to DOJ and to ERC, as set forth in Paragraph VIII.T. below. The Compliance Report is in addition to specific reports required in other Sections of this Agreement, such as the architectural survey report, the equipment survey report, the certification concerning the completion of the Tower, and the final barrier removal report. All reports submitted pursuant to this Agreement must by certified by the ADA Officer as true, complete, and correct. The parties expressly agree that providing these reports and certifications is essential to the enforcement of this Agreement, and that a failure to provide the reports and certifications required by this Agreement constitutes a breach of this Agreement.
L. Enforcement in Part.
Failure by DOJ or ERC to enforce this entire Agreement or any of its provisions or deadlines shall not be construed as a waiver of DOJ’s or ERC’s right to enforce other deadlines and provisions of this Agreement.
M. Agreement Binding on WHC Successor. This Agreement shall be binding on WHC, its agents, employees, transfers, and assigns. In the event WHC seeks to sell, transfer, or assign all or part of its interest in any facility covered by this Agreement, and the successor or assign intends on carrying on the same or similar use of the facility, as a condition of sale WHC shall obtain the written accession of the successor or assign to any obligations remaining under this Agreement for the remaining Term of this Agreement.
N. Effective Date.
The Effective Date of this Agreement is the date of the last signature below.
O. Entire Agreement.
This Agreement constitutes the entire agreement between DOJ and WHC 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 as between DOJ and WHC. This Agreement and the Supplemental Settlement Agreement constitute the entire agreement between ERC and WHC 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 these written Agreements, shall be enforceable as between ERC and WHC. A default under the Supplemental Settlement Agreement shall not constitute a default under this Agreement. This Agreement does not purport to remedy any other potential violations of the ADA or any other federal law. This Agreement does not affect WHC’s continuing responsibility to comply with all aspects of the ADA.
P. Confidentiality of WHC Information.
The parties acknowledge and agree that certain documents and information provided by WHC to the parties prior to the execution of this Agreement may contain confidential business information of WHC and that such documents and information, in whatever form, shall be maintained as confidential and used solely for purposes of administering and enforcing the provisions of this Agreement, with the exception that, with respect to documents provided to parties that comprise Individual Plaintiffs’ records of their treatment at WHC (“WHC Medical Records”), each Individual Plaintiff reserves the right to disclose his or her WHC Medical Records to third parties as he or she sees fit. WHC, however, agrees to maintain such WHC Medical Records as confidential. The parties further acknowledge that WHC, its agents, or its consultants shall provide documents and information subsequent to the execution of this Agreement that may contain confidential business information of WHC and that WHC shall endeavor to mark such documents as confidential or otherwise indicate to the parties receiving such information that the information is confidential. Neither DOJ nor ERC shall disclose such information (including that provided before the execution of this Agreement and after the execution of this Agreement, whether or not marked confidential) to any third party except as is reasonably necessary to administer or enforce the provisions of this Agreement or with the express consent of WHC. The parties acknowledge that among other things, “reasonably necessary,” as provided above, does not include disclosures of WHC information to the press or to the general public in the form or a press release. In the event DOJ or ERC receives a court-issued subpoena seeking the production of any documents or information deemed confidential under this provision, the recipient of such subpoena shall provide WHC notice and a copy of such subpoena and shall make its best efforts to do so within 5 business days of such receipt, and provide WHC an opportunity to protect its interests in court with regard to such subpoena. Beginning 60 days prior to the expiration of this Agreement, as set forth in Paragraph VIII.R.below, WHC may request that DOJ and ERC destroy or return to WHC (at WHC’s option) all documents and information remaining in their possession marked confidential pursuant to this provision, and all copies of same, and DOJ and ERC shall comply.
Q. Confidentiality of Plaintiffs’ Information.
The parties acknowledge and agree that all documents and information provided by Plaintiffs to the parties prior to the execution of this Agreement, including documents provided in discovery during the Litigation, contain confidential business information of ERC, confidential medical records of Individual Plaintiffs and/or other personal medical information of Individual Plaintiffs and that such information, in whatever form, shall be maintained as confidential. In the event WHC receives a court-issued subpoena seeking the production of any documents or information deemed confidential under this provision, the recipient of such subpoena shall provide counsel for Plaintiffs notice and a copy of such subpoena within 5 business days of such receipt, and provide Plaintiffs an opportunity to protect their interests in court with regard to such subpoena. Within 60 days following the expiration of this Agreement, WHC shall destroy or return to Plaintiffs (at Plaintiffs’ option) all documents and information marked confidential pursuant to this provision, and all copies of same, with the exception of WHC medical records for which WHC is otherwise entitled to retain copies.
R. Term of Agreement.
The Agreement shall remain in full force and effect for 5 years from the Effective Date of this Agreement; provided, however, that in the event WHC receives the approval to construct a new Tower, as set forth in Paragraph III.B.4 above, the Term of this Agreement shall be extended to the date the Tower is completed and DOJ receives the documentation and certification required by Paragraph III.B.4.(e) above (the “Completion Date”). If the Term of this Agreement is so extended, this Settlement Agreement shall remain in full force and effect until the Completion Date, except for the following paragraphs, which shall terminate on the date which is 5 years from the Effective Date: II.B., II.C., II.D., II.E., II.F., II.G., III.B.1, III.B.2, III.C., IV.B.1., IV.C., V., VI., and VII.
S. Section Titles and Headings.
Section titles and other headings contained in this Agreement are included only for ease of reference and shall have no substantive effect.
All notices, demands, or other communications to be provided pursuant to this Agreement shall be in writing and delivered by fax or overnight mail to the following persons and addresses (or such other persons and addresses as any party may designate in writing from time to time):
1. For the Private Plaintiffs and ERC:
Jennifer R. Bagosy
Robert H. Cox
Howrey Simon Arnold & White
1299 Pennsylvania Ave., N.W.
Washington, DC 20004
Washington Lawyers’ Committee for Civil Rights and Urban Affairs
11 Dupont Circle, N.W., Suite 400
Washington, DC, 20036
Tel: 202.319.1000 x131
Bruce K. Kahn
Equal Rights Center
11 Dupont Circle, N.W.
Washington, D.C. 20036
2. For WHC
James F. Caldas, President
Renee P. Landry, Vice President Support Services
110 Irving Street, N.W.
Washington, D.C. 20010
3. For the Department of Justice
Anne M. Pecht, Esq.
Amanda Maisels, Esq.
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530-0001
|FOR WASHINGTON HOSPITAL CENTER
||FOR THE UNITED STATES
James F. Caldas, President
Renee P. Landry, Vice President for Support Services
110 Irving Street, N.W.
Washington, D.C. 20010
Bradley L. Schlozman
Acting Assistant Attorney General
Civil Rights Division
John Wodatch, Section Chief
L. Irene Bowen, Deputy Section Chief
Anne Marie Pecht
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, DC 20530
|FOR THE EQUAL RIGHTS CENTER
Bruce K. Kahn
Equal Rights Center
11 Dupont Circle, N.W.
Washington, D.C. 20036
- Patient Request/Complaint to Patient and Guest Services Department (PGSD)
- PGSD provides informational notice to Clinical or Non-Clinical Specialist via Occurrence Reporting System (ORS)
- PGSD responds to request/complaint, working (if necessary) with WHC staff member identified in ADA Resource Manual
December 29, 2005
- If satisfactory response, PGSD records in ORS
- If unsatisfactory response or additional assistance needed, PGSD contacts Clinical or Non-Clinical Specialist to revivew
- Clinical/Non-Clinical Specialist takes steps to respond to patient request/complaint
- If satisfactorily resolved, Specialist notifies PGSD and ADA Officer; PGSD records in ORS
- If unable to resolve, Specialist notifies PGSD & ADA Officer
- ADA Officer reviews to determine whether alternative is available to address patient need and communicates to Specialist
- Possible follow up communication to patient via Specialist
- Report to Environment of Care Committee (EOCC) pursuant to Paragraph II.B.5 of Settlement Agreement; PGSD records in ORS