Settlement Agreement between the United States of America and Arshad Pervez, M.D.

SETTLEMENT AGREEMENT BETWEEN THE
UNITED STATES OF AMERICA AND ARSHAD PERVEZ, M.D.
UNDER THE AMERICANS WITH DISABILITIES ACT
DJ # 202-37-240

BACKGROUND

  1. The parties to this Settlement Agreement are the United States of America and Dr. Arshad Pervez, which includes all of his employees, staff members, and any other individuals affiliated with his professional medical office (hereinafter, “Dr. Pervez”).
  2. This matter is based on a complaint received by the United States Attorney’s Office alleging that Dr. Pervez discriminated against a patient on the basis of her disability in violation of title III of the Americans with Disabilities Act of 1990, as amended (“ADA”), 42 U.S.C. § 12181 et seq.  Specifically, Complainant, who is deaf, alleges that Dr. Pervez failed to provide a sign language interpreter when she requested one for an appointment.  Complainant alleges a sign language interpreter was needed to allow for effective communication and to afford her the opportunity to derive the same benefits from the appointment as other individuals who are not deaf or hard of hearing. 

JURISDICTION

  1. The United States Department of Justice (“United States”), of which the United States Attorney’s Office is a component, is responsible for enforcing title III of the ADA, 42 U.S.C. §§ 12181 -12189, and its implementing regulation, 28 C.F.R. Part 36.
  2. Complainant is an individual with a disability within the meaning of the ADA. 42 U.S.C. § 12102; 28 C.F.R. § 36.104. 
  3. Dr. Pervez owns and operates a professional office of a healthcare provider located at 26190 West Outer Drive, Lincoln Park MI 48146.  The office is a place of public accommodation covered by title III of the ADA. 42 U.S.C. § 12182 (7)(F); 28 C.F.R. § 36.104.  Accordingly, Dr. Pervez is obligated to comply with the requirements of title III of the ADA.  28 C.F.R.§ 36.104. 
  4. Under title III of the ADA, no person who owns or operates a place of public accommodation may discriminate against an individual on the basis of disability in the full and equal enjoyment of goods, services, privileges, advantages, or accommodations, and must provide auxiliary aids and services when necessary to ensure effective communication.  42 U.S.C. §§ 12182(a), 12182(b)(1)(A)(ii), 12182(b)(2)(A)(iii); 28 C.F.R. §§ 36.201(a), 36.202, 36.303.
  5. Ensuring that medical care providers do not discriminate on the basis of disability is an issue of general public importance.  The United States is authorized to investigate alleged violations of title III of the ADA and to bring a civil action in federal court in any case that involves a pattern or practice of discrimination or that raises issues of general public importance.

FINDINGS

  1. As a result of its investigation, the United States found that, by denying Complainant’s request for a sign language interpreter and failing to consult with Complainant in making this determination, Dr. Pervez denied the Complainant a full and equal opportunity to participate in and benefit from the goods, services, facilities, privileges, advantages, or accommodations of Dr. Pervez’s medical practice within the meaning of 42 U.S.C. §§ 12182(a), 12182(b)(1)(A)(ii), 12182(b)(2)(A)(iii) and 28 C.F.R. §§ 36.202;36.303.
  2. Dr. Pervez has fully cooperated with the United States’ investigation.
  3. The United States and Dr. Pervez agree that it is in the parties’ best interests, and the United States believes that it is in the public interest, to resolve this  complaint on mutually agreeable terms without litigation and have therefore agreed to the terms of this Agreement.
  4. This Agreement is neither an admission of liability by Dr. Pervez nor a concession by the United States that its claims are not well founded.  By entering into this Agreement, Dr. Pervez is not admitting that any action taken with respect to Complainant was wrongful, unlawful, or in violation of any local, state, or federal act or statute.
  5. In consideration of the terms of this Agreement, the United States agrees to refrain from undertaking further investigation or filing a civil suit in this matter, except as provided in paragraph 30 of this Agreement.

REMEDIAL ACTION

  1. Consistent with the ADA, Dr. Pervez will not discriminate against any individual, including patients and their companions, on the basis of disability, in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations available at Dr. Pervez’s medical practice by excluding or providing unequal treatment to persons with disabilities. 42 U.S.C. § 12182.
  2. The term “patient” shall be broadly construed to include any individual who is deaf or hard of hearing and who is seeking or receiving health care services from Dr. Pervez’s medical practice.  
  3. The term “companion” means a person who is deaf or hard of hearing and is either (a) a person whom the patient, consistent with privacy regulations, indicates should communicate with Dr. Pervez about the patient, participate in any treatment decision, play a role in communicating the patient’s needs, condition, history or symptoms to Dr. Pervez, or help the patient act on the information, advice or instructions provided by Dr. Pervez; (b) a person legally authorized to make health care decisions on behalf of a patient; or (c) such other person with whom Dr. Pervez would ordinarily and regularly communicate with concerning the patient’s medical condition including, but not limited to, the patient’s next of kin or health care surrogate.
  4. Immediately as of the effective date of this Agreement, Dr. Pervez will provide, free of charge, appropriate auxiliary aids and services, including qualified interpreters, to individuals who are deaf or hard of hearing whenever it is necessary to ensure effective communication for those individuals, unless it can be demonstrated that an undue burden or a fundamental alteration would result.
  5. The term “auxiliary aids and services” includes qualified interpreters on-site or through video remote interpreting (VRI) services; note takers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing. 28 C.F.R. §36.303.
  6. The term “qualified interpreter” means an interpreter who, via a video remote interpreting (VRI) service or an on-site appearance, is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary.  Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators. 28 C.F.R. § 36.104.
  7. If VRI services are used, Dr. Pervez will ensure that the service provides (1) real-time, full motion video and audio over a dedicated high-speed, wide-bandwidth video connection or wireless connection that delivers high-quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in communication; (2) a sharply delineated image that is large enough to display the interpreter´s face, arms, hands, and fingers, and the participating individual´s face, arms, hands, and fingers, regardless of his or her body position; (3) a clear, audible transmission of voices; and (4) adequate training to users of the technology and other involved individuals so that they may quickly and efficiently set up and operate the VRI. 28 C.F.R. § 36.303(f).
  8. The determination of appropriate auxiliary aids or services, and the timing, duration, and frequency with which they will be provided, will be made by Dr. Pervez in consultation with the person with a disability.  In making these determinations, Dr. Pervez and/or his staff will take into account all relevant facts and circumstances, including, but not limited to, the following:
    1. the nature, length, complexity, and importance of the communication at issue;
    2. the individuals communication skills and knowledge;
    3. the patients’ health status or changes thereto; and
    4. the patients’ and/or companions’ request for, or statement of need for, an interpreter.

    Examples of circumstances when it may be necessary to provide interpreters include, but are not limited to, obtaining a patient’s medical history or description of ailment; explaining or discussing a patient’s diagnosis or prognosis; explaining or discussing follow-up care,  including a patient’s or companion’s questions regarding the patient’s condition and/or previous or future procedures, tests, and/or treatment; and medications prescribed.

  9. The determination of appropriate auxiliary aids and services, and the timing, duration, and frequency with which they will be provided, must be made at the time a patient schedules an appointment, or upon the arrival of the patient or companion at Dr. Pervez’s medical practice, whichever is earlier.  Dr. Pervez and/or his staff will perform a communication assessment as part of each initial patient assessment, consulting with the patient, and documenting the results in the patient’s medical chart.  In the event that communication is not effective, Dr. Pervez or his staff will reassess, in consultation with the patient or companion, as applicable, which auxiliary aids and services are needed to ensure effective communication, and will document the results accordingly.
  10.  If a patient or companion has an ongoing relationship with Dr. Pervez, with respect to subsequent visits, Dr. Pervez will continue to provide the appropriate auxiliary aids or services to the patient or companion without requiring a request for the appropriate auxiliary aids or services by the patient or companion for each visit.  Dr. Pervez will keep appropriate records that reflect the ongoing provision of auxiliary aids and services to patients and companions, such as notations in a patient’s medical charts.
  11. If a patient and/or companion does not request auxiliary aids or services, but Dr. Pervez has reason to believe that such person would benefit from auxiliary aids or services, Dr. Pervez will specifically inform the patient and/or companion that auxiliary aids and services are available free of charge.
  12. Immediately, as of the effective date of this Agreement, Dr. Pervez’s medical practice will maintain a log of each request for an auxiliary aid or service.  The log will record the time and date of the request, the name of the individual who made the request, the name of the individual for whom the auxiliary aid or service is being requested (if different than the requestor), the specific auxiliary aid or service requested, the time and date of the scheduled appointment (if a scheduled appointment was made), the time and date the auxiliary service was provided, the type of auxiliary aid or service provided, if different than what was requested, and, if applicable, a statement that the requested auxiliary aid or service was not provided, along with the reason it was not provided.
  13. Immediately, as of the effective date of this Agreement, Dr. Pervez will adopt, maintain, and enforce the policy on communicating with individuals who are deaf and hard of hearing that is attached to this Agreement as “Attachment A,” and keep the policy in place for the duration of this Agreement.  
  14. Within sixty (60) days of the effective date of this Agreement, and annually thereafter, Dr. Pervez will provide mandatory ADA training for all employees, staff members, and other individuals who might interact with patients and/or companions.  Such training, which can be provided by a third-party, will be sufficient in duration and content to train the individual in:
    1. the various degrees of hearing impairment, language, and cultural diversity in the deaf community;
    2. identification of communication needs of persons who are deaf or hard of hearing;
    3. the office’s auxiliary aids and services policy,
    4. recommended and required charting procedures governing requests for auxiliary aids and services;
    5. types of auxiliary aids and services available;
    6. the proper use and role of qualified interpreters;
    7. the proper use and role of video remote interpreting services;
    8. making and receiving calls through TTYs and the relay service;
    9. any other applicable requirements of this Agreement.
  15. Within sixty (60) days of the effective date of this Agreement, Dr. Pervez shall post in the reception or waiting area, examination rooms, and wherever a Patient’s Bill of Rights is required by law to be posted, signs of conspicuous size and print stating:

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

    These signs will include the international symbols for “interpreters,” and list the name and contact information for the person(s) to whom a patient or companion should speak in order to request auxiliary aids or services. The signs shall also contain the following statement: “For more information about the Americans with Disabilities Act (ADA), call the Department of Justice’s toll-free ADA Information Line at 1-800-514-0301 (voice), 1-800-514-0383 (TTY), or visit the ADA Home Page at www.ada.gov.”

  16. Within thirty (30) days of the effective date of this Agreement, Dr. Pervez will establish and maintain a list of qualified interpreters or interpreter agencies that employ or arrange the services of qualified interpreters to ensure that qualified interpreter services are available.
  17. Dr. Pervez will notify the United States in writing when he has completed the actions described in paragraphs 26-28.  If any issues arise that affect the anticipated completion dates set for such actions, Dr. Pervez will immediately notify the United States of the issue(s).
  18. Dr. Pervez shall not discriminate or retaliate against any person because of his or her participation in this matter.

ENFORCEMENT

  1. During the term of this Agreement, Dr. Pervez will immediately notify the United States if any individual submits a complaint, charge, grievance, or files a lawsuit, alleging that Dr. Pervez failed to provide any auxiliary aids or services to any individual with a disability.  Such notification must be provided in writing within fifteen (15) days of receipt and will include, at a minimum, the nature of the allegation, the name of the individual making the allegation, and any documentation possessed by Dr. Pervez or any of its agents or representatives relevant to the allegation.
  2. The United States may review compliance with this Agreement or title III of the ADA at any time. If the United States believes that Dr. Pervez has failed to comply in a timely manner with any requirement of this Agreement without obtaining sufficient advance written agreement with the United States for a modification of the relevant terms, the United States will so notify Dr. Pervez in writing, and will attempt to resolve the issue or issues in good faith. If the United States is unable to reach a satisfactory resolution of the issue or issues raised within thirty (30) days of the date it provides notice to Dr. Pervez, it may institute a civil action in federal district court to enforce the terms of this Agreement or title III and may, in such action, seek any relief available under law.
  3. Failure by the United States to initiate any provision of this Agreement is not a waiver of its right to enforce other provisions of this Agreement.
  4. This Agreement is binding on Dr. Pervez and its agents, employees, shareholders, partners, and associates as long as those agents, employees, shareholders, partners, and associates are serving in that capacity. In the event Dr. Pervez seeks to transfer or assign all or part of his interest in any entity covered by this Agreement, and the successor or assignee intends to carry on the same or similar use of the entity, as a condition of sale, Dr. Pervez shall obtain the written accession of the successor or assign to any obligations remaining under this Agreement for the remaining term of this Agreement.
  5. This Agreement constitutes the entire agreement between the United States and Dr. Pervez on the matter raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written Agreement shall be enforceable. This Agreement does not purport to remedy any other potential violations of the ADA or any other federal law. This Agreement does not affect the continuing responsibility of Dr. Pervez to comply with all aspects of the ADA.
  6. This Agreement will remain in effect for three (3) years from its effective date.
  7. The effective date of this Agreement is the date of the last signature below.

Agreed and Consented to:

For the UNITED STATES OF AMERICA

BARBARA L. McQUADE
United States Attorney
Eastern District of Michigan

/s/ Sarah Karpinen
/s/ Sarah Karpinen
SARAH KARPINEN
Assistant United States Attorney
United States Attorney's Office
Eastern District of Michigan
Civil Rights Unit
211 W. Fort St., Suite 2001
Detroit, MI 48226

 

Dated: 7/2/15 

 

 

 

For ARSHAD PERVEZ, M.D.

/s/ Arshad Pervez
/s/ Arshad Pervez
ARSHAD PERVEZ, M.D.
26190 West Outer Drive
Lincoln Park MI 48146

 

Dated: 7/2/15