JENNIFER DREW; BRIAN MORACE; and OREGON ASSOCIATION OF THE DEAF, INC.,
an Oregon nonprofit association,
PATRICK ANDREW MERRILL; and PERINATAL ASSOCIATES, P.C., an Oregon corporation.
This action arose initially out of a complaint filed by plaintiffs Brian Morace, Jennifer Drew, and Oregon Association of the Deaf, Inc. ("OAD") alleging the failure of Perinatal Associates, P.C., and Dr. Patrick Andrew Merrill to provide auxiliary aids and services, including qualified sign language interpreters, where such aids and services were necessary for effective communication with persons who are deaf or hard of hearing or who have other communication-related disabilities, as required by Title III of the Americans With Disabilities Act, 42 USC §§ 12181-89 (hereinafter "ADA"), Title III regulations, 28 CFR pt. 36, Section 504 of the Rehabilitation Act of 1973, as amended, 29 USC § 794 ("Section 504"), Section 504 regulations, 45 CFR pt. 84, Oregon's antidiscrimination law, ORS 659.425(3), and various common law negligence standards. To address the interests of the public, the United States, acting through the Attorney General, who has statutory authority to enforce Title III of the ADA, 42 USC §§ 12101 et seq., filed a Complaint in Intervention against defendants Perinatal Associates, P.C. and Dr. Merrill alleging that they discriminated against persons who are deaf or hard of hearing as well as others associated with them by failing to provide them with the full and equal enjoyment of Perinatal Associates' goods, services, programs, and activities, and by failing to provide appropriate auxiliary aids and services when necessary for effective communication. The parties continue to disagree whether Perinatal Associates has complied with federal and state laws requiring the provision of auxiliary aids and services to Mr. Morace and other persons who are deaf or hard of hearing. However, all parties have decided to put their disagreements behind them and to focus instead on their shared interest in working together in pursuit of the goal of ensuring that the physicians and non-physician personnel of Perinatal Associates are able to communicate effectively with persons who are deaf or hard of hearing, be they patients or associates of patients. In pursuit of this goal, plaintiffs, defendants, and the United States of America have committed to this Consent Judgment.
1. Jurisdiction and Venue.
The Court has jurisdiction over the above-captioned action pursuant to 42 USC §§ 12133 and 12188(b)(1)(B), and 28 USC §§ 1331 and 1345. Venue is proper in the District of Oregon pursuant to 28 USC § 1391 in that all claims alleged herein arose within this District. The Court may grant declaratory and all other relief necessary to enforce this Judgment pursuant to 28 USC §§ 2201 and 2202.
(a) Plaintiff Brian Morace is an individual who is deaf and thus is a person with a disability within the meaning of the ADA, 42 USC § 12111(8) and Section 504, 28 USC § 706(8). Plaintiff is also a qualified person with a disability within the meaning of Section 504. Plaintiff's primary method of communication is sign language. As a result of Mr. Morace's disability, he uses and relies on sign language interpreters and/or other auxiliary aids and services for effective communication with people who do not use sign language.
(b) Plaintiff Jennifer Drew is a nondisabled individual who has a relationship with plaintiff Brian Morace and who falls under the protections of the ADA's prohibition against discrimination based on association with a disabled person, 42 USC § 12182(b)(1)(E).
(c) OAD is a nonprofit association whose mission includes assuring equal opportunity for and full participation of deaf individuals in the general community.
(d) Plaintiff-Intervenor, the United States of America, by and through the United States Department of Justice, represents the public interest and has the authority to enforce Title III of the ADA, 42 USC §§ 12132, 12188(a) and (b).
(e) Defendant Perinatal Associates, P.C. , is a group specialty medical practice. It operates and is licensed under the laws of the state of Oregon and engages in the delivery of health care services to the public in the greater Portland area. Perinatal Associates is a public accommodation within the meaning of Title III of the ADA, 42 USC §§ 12181-89, 28 CFR § 36.104 and a program or activity receiving financial assistance within the meaning of Section 504 and 45 CFR pt. 84.
(f) Defendant Dr. Patrick Andrew Merrill is a health care specialist (perinatologist) licensed and operating under the laws of the state of Oregon. Dr. Merrill is an employee and shareholder of Perinatal Associates, P.C. Dr. Merrill, as an owner and operator of Perinatal Associates, is subject to Title III of the ADA, 42 USC §§ 12181-89, 28 CFR § 36.104 and Section 504 and 45 CFR pt. 84.
3. Policy For Effective Communication.
For deaf patients, Perinatal Associates, P.C., shall offer at no charge to the patient, auxiliary aids and services, including qualified sign language interpreters, to assist the patient in communicating concerning treatment decisions, needs, conditions, history, or symptoms, or to act on information, advice, or instructions offered by Perinatal Associates personnel, and so note in the patient's chart.
Whenever a patient, whether deaf or not, may be accompanied by a companion who is authorized to communicate with Perinatal Associates personnel about the patient, participate in any treatment decision, play a role in communicating the patient's needs, condition, history, or symptoms, or help the patient act on the information, advice, or instructions provided by Perinatal Associates personnel, Perinatal Associates will offer at no charge to the patient or person who is deaf those auxiliary aids and services, including qualified sign language interpreters, that would be offered to a patient and shall so note in the patient's chart.
4. Distribution of Policy.
Perinatal Associates shall affirmatively offer copies of the policy described in paragraph 3 to patients with deaf associates and those deaf associates. Perinatal Associates may place a reasonably visible sign in its reception area announcing that it has written a policy for assisting patients and their companions who are deaf that is available on request, and this shall constitute such an affirmative offer, if the policy is then given to persons who inquire.
Perinatal Associates will provide mandatory in-service training to all personnel to ensure that they are aware of and comply with the written policy outlined above.
6. Monetary Payments.
Perinatal Associates shall pay and reimburse Mr. Morace and Ms. Drew a monetary amount of $25,000.
7. Monitoring and Enforcement.
(a) Compliance Reports.
Within ninety (90) days of the entry of this Judgment, and every 180 days thereafter for a period of three years from the entry of this Judgment, Perinatal Associates shall submit a written report to the Office of the United States Attorney concerning the implementation of this Judgment. The report shall describe by date and substance the steps taken to comply with the Judgment, and a summary of any problems encountered during attempts to implement the Judgment. The report shall list any instances in the previous reporting period in which a patient requested assistance for a deaf associate and the steps taken by Perinatal Associates in response.
(b) Right of Compliance Review.
During the term of this Judgment, the United States may, at any time, inspect Perinatal Associates' compliance with the Judgment. As a part of such review, the United States may, with reasonable notice and in a reasonable manner that protects patient confidentiality rights and avoids interfering with patient care services, require Perinatal Associates to permit the United States to interview witnesses relating to implementation of this Judgment to determine if Perinatal Associates is complying with the provisions of this Judgment.
8. Dispute Resolution.
The parties shall negotiate in good faith to resolve any dispute relating to the interpretation or implementation of this Judgment before bringing the matter to the Court's attention. In the event of any unresolved disagreement between the United States and the plaintiffs (or plaintiffs' counsel) with respect to provisions of this Judgment providing for approval by both the United States and the plaintiffs (or plaintiffs' counsel), the position of the United States shall control unless plaintiffs demonstrate that the position of the United States is unreasonable.
9. Release and Dismissal.
This Judgment does not purport to remedy, and shall not be construed to address, any other issues of ADA or Section 504 compliance or any other federal law than those provisions or regulations of the ADA or Section 504 that relate to the provision of equal access to persons who are deaf. This Judgment does not in any way relieve Perinatal Associates of its continuing responsibility to comply in the future with all aspects of the ADA, the Rehabilitation Act of 1973, as amended (Section 504), and the Oregon antidiscrimination law nor does it restrict the rights of private persons not a party to this suit from seeking relief or remedy for violations of any law, whether in the past or future. However, the terms of this Judgment have been negotiated and agreed upon among the parties with the view that compliance with it would be consistent with the requirements of the ADA and Section 504 as far as they relate to providing equal access to persons who are deaf at Perinatal Associates. Any and all claims, proceedings, and causes of action for damages, penalties, attorneys' fees, interest, costs, declaratory, injunctive, or other relief arising out of the transaction or series of transactions that gave rise to this action and not expressly provided for by this Judgment are dismissed with prejudice and released by plaintiffs and the United States of America.
10. Changing Circumstances.
During the time in which this Judgment will be in effect, there may be a change in circumstances. If Perinatal Associates determines that such change creates opportunities or needs for meeting the needs of deaf persons more efficiently or effectively than is allowed under this Judgment, it may propose changes to this Judgment by presenting written notice to counsel for all parties. Absent consent of the parties, no proposed changes will be accepted by the Court unless warranted by the evidence and principles of equity. All parties are required pursuant to paragraph 8 to negotiate in good faith prior to proposing any changes to the Court.
This Judgment is final and binding on Perinatal Associates, P.C., the United States of America, including the U.S. Department of Justice, and the plaintiffs Brian Morace and Jennifer Drew, including all principals, agents, executors, administrators, representatives, successors in interest, beneficiaries, assigns, heirs, and legal representatives of the above-captioned parties. Defendants shall give notice of the ongoing obligations created by this Judgment to any successor in interest or future shareholders in Perinatal Associates, P.C.
12. No Admission.
Nothing in this Consent Judgment is intended or may be construed as an admission by defendants or judgment by the Court that defendants have violated any statute, regulation, common law, or other legal obligation.
13. Retained Jurisdiction and Standing.
The United States District Court for the District of Oregon shall retain jurisdiction over this action for the purpose of ensuring compliance and enforcing the provisions of this Judgment for three years from the date hereof, after which time its provisions shall be terminated unless the Court determines that, based on findings of noncompliance, it is necessary to extend any of its requirements, in which case those requirements, after hearing, may be extended subject to the requirements of equity. The parties to this action and no one else shall have standing to seek enforcement of this Judgment.
This Consent Judgment embodies in full the terms of the agreement and understanding between the parties related to the subject matter of this action or this Judgment.
DATED this 5th day of November, 1999.
/s/ Garr M. King
The Honorable Garr M. King
United States District Court Judge
MILLER NASH LLP
Bruce A. Rubin
Oregon State Bar No. 76318
111 S.W. Fifth Avenue, Suite 3500
Portland, Oregon 97204
Telephone: (503) 224-5858
Facsimile: (503) 224-0155
Attorneys for Defendants Patrick Andrew Merrill
And Perinatal Associates, P.C.
February 6, 2001