SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA AND
CENTER FOR ORTHOPAEDIC AND SPORTS MEDICINE, INC.

Press Release

BACKGROUND

1. The parties (Parties) to this Settlement Agreement (Agreement) are the United States of America (United States) and The Center for Orthopaedic and Sports Medicine, Inc. (“The Center”).
2. The Attorney General of the United States (Attorney General) is authorized to investigate alleged violations of title III of the Americans with Disabilities Act of 1990, as amended (“ADA”) and to bring a civil action in federal court if the United States is unable to secure voluntary compliance. 42 U.S.C. § 12188(b); 28 C.F.R. §§ 36.502, 36.503.
3. The Center is incorporated under the laws of the state of Virginia. The Center operates professional medical offices where it provides orthopedic and sports medicine to its patients. The Center is a “public accommodation” as defined in 42 U.S.C. § 12181(7)(F); 28 C.F.R. § 36.104, because it is a private entity that operates a place of public accommodation whose operations affect commerce.
4. The ADA prohibits public accommodations, including professional offices of health care providers, from discriminating on the basis of disability in the full and equal enjoyment of their goods, services, facilities, privileges, advantages or accommodations. 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a). Discrimination includes failing to take such steps as necessary to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently than any other individual because of the absence of auxiliary aids and services, 42 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303.
5. This matter was initiated by a complaint filed with the United States against The Center, alleging violations of title III of the ADA, 42 U.S.C. §§ 12181-12189, and its implementing regulation, 28 C.F.R. Part 36. Specifically, the Complainant, who is deaf, and is thus a person with a disability within the meaning of the ADA, 42 U.S.C. § 12102(1); 28 C.F.R. § 36.104, alleges that The Center discriminated against her by failing to provide her with the full and equal enjoyment of The Center’s goods, services, facilities, privileges, advantages or accommodations, and by failing to provide appropriate auxiliary aids and services when necessary for effective communication. The Complainant uses American Sign Language as her primary means of communication. The Complainant alleges that she was unable to communicate adequately with The Center’s personnel while she was receiving medical treatment from The Center between September 23, 2009, and February 24, 2010, because she was not provided with a sign language interpreter when requested, which was necessary for effective communication.

FINDINGS

6. The United States investigated the complaint and made the following findings. On multiple occasions, the Complainant made requests for a qualified American Sign Language interpreter prior to appointments at The Center between September 23, 2009, and February 24, 2010. In response to these requests, The Center informed the Complainant that it was not its responsibility to retain a sign language interpreter for her. Rather than provide a sign language interpreter, The Center attempted to communicate with the Complainant during medical examinations and physical therapy appointments through written notes and gestures.
7. Complainant is deaf and is therefore a person with a disability within the meaning of 42 U.S.C. § 12102(1)(A) and 28 C.F.R. § 36.104.
8. The Center violated title III of the ADA by failing to provide appropriate auxiliary aids and services necessary to ensure effective communication with the Complainant during multiple medical appointments thereby denying her equal goods, services, facilities, privileges, advantages, or accommodations. 42 U.S.C. §§ 12182(a), 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303.
9. In consideration of the terms of this Agreement, the United States agrees to refrain from filing a civil suit in this matter regarding the areas covered under the Remedial Actions section of this Agreement, except as provided in the Implementation and Enforcement section of the Agreement.
10. In consideration of the United States’ agreement to refrain from possible litigation as set out below, The Center agrees to take the actions specified in this Agreement.

DEFINITIONS

11. 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.
12. The terms “qualified interpreter” means an interpreter who, via a video remote interpreting (VRI) service or an on-site appearance, is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators. 28 C.F.R. § 36.104.
13. The term “staff” shall mean any person working for The Center, whether as an officer, agent, employee, volunteer, or independent contractor, including, without limitation, nurses, doctors, therapists, technicians, physician’s or nurse’s assistants, nurse practitioners, office managers, administrative assistants, secretaries, receptionists, and other clerical staff.
14. The term “Patient” shall mean any person who is deaf or hard of hearing and who is treated by or who seeks treatment or medical consultation from The Center.
15. The term “Companion” means a person who is deaf or hard of hearing and is a family member, friend, or associate of an individual seeking access to, or participating in, the goods, services, facilities, privileges, advantages, or accommodations of a public accommodation, who, along with such individual, is an appropriate person with whom the public accommodation should communicate.
16. The term “TTY’s” or “TDD’s” means: devices that are used with a telephone to communicate with persons who are deaf or hard of hearing by typing and reading communications.
17. The term “deaf” shall refer to persons who are deaf. The term “hard-of-hearing” includes persons who have a hearing deficit and who may or may not primarily use visual aids for communication and may or may not use auxiliary aids.

REMEDIAL ACTIONS

18. Consistent with the ADA, The Center will not discriminate against any individual, including both Patients and Companions, on the basis of disability in the full and equal enjoyment of The Center’s goods, services, facilities, privileges, advantages, or accommodations by excluding or providing unequal treatment to persons with disabilities. 42 U.S.C. § 12182.
19. Immediately as of the effective date of this Agreement, The Center will provide to individuals who are deaf or hard of hearing appropriate auxiliary aids and services, including qualified interpreters, where necessary to ensure effective communication unless an undue burden or a fundamental alteration would result.
20. The determination of appropriate auxiliary aids or services and the timing, duration, and frequency with which they will be provided, will be made by a Center staff member in consultation with the person with a disability. In making these determinations, Tthe Center will take into account all relevant facts and circumstances, including without limitation the following:
    1. the nature, length, complexity, and importance of the communication at issue;
    2. the individual’s communication skills and knowledge;
    3. the Patient’s health status or changes thereto;
    4. the Patient’s and/or Companion’s request for, or statement of, need for an interpreter; and
    5. the reasonably foreseeable health care activities of the Patient (e.g., medical tests or procedures, rehabilitation services, meetings with healthcare professionals or social workers, or discussions concerning billing, insurance, self-care, prognoses, diagnoses, history, and discharge).

Examples of circumstances when it may be necessary to provide interpreters include, but are not limited to, obtaining a Patient’s medical history or description of ailment; and explaining or discussing a Patient’s diagnosis or prognosis; procedures, tests, and treatment; and medications prescribed.

21. The determination of appropriate auxiliary aids and services and the timing, duration, and frequency with which they will be provided must be made at the time an appointment is scheduled for the Patient or on the arrival of the Patient or Companion at The Center, whichever is earlier. The Center will perform a communication assessment as part of each initial Patient assessment, consulting with the Patient, and document the results in the Patient’s medical chart. The Center shall use the form attached hereto as Attachment A. In the event that communication is not effective, The Center will reassess, in consultation with the Patient or Companion, as applicable, which auxiliary aids and services are needed to ensure effective communication, and document the results accordingly.
22. If a Patient or a Companion has an ongoing relationship with The Center, with respect to each of these subsequent visits, The Center will continue to provide the appropriate auxiliary aids or services Patient or Companion without requiring a request for the appropriate auxiliary aids or services by the Patient or Companion for each visit. The Center 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.
23. If a Patient and/or Companion does not request auxiliary aids or services, but The Center has reason to believe that such person would benefit from auxiliary aids or services, The Center will specifically inform the Patient and/or Companion that auxiliary aids and services are available free of charge.
24. The Center will maintain a written policy explaining that it will provide auxiliary aids and services, including qualified interpreters, where such auxiliary aids and services are needed to ensure effective communication with Patients and Companions.
25. Within sixty (60) days of the entry of this Agreement, The Center shall post and maintain signs of conspicuous size and print in The Center waiting area and wherever a Patient’s Bill of Rights is required by law to be posted. Such signs shall include the language found in Attachment B. These signs will include the international symbols for “interpreters.” Additionally, The Center will provide a notice containing the language found in Attachment B to each patient when they check in for appointments.
26. Within thirty (30) days of the effective date of this Agreement, The Center 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.
27. Within thirty (30) days of the effective date of this Agreement, The Center will submit to the United States its list of sign language interpreter providers.
28. Immediately, as of the effective date of this Agreement, The Center will maintain a log of each request for an auxiliary aid or service. The log will record the time and date of the request, the name of the individual who made the request, the name of the individual for whom the auxiliary aid or service is being requested (if different from the requestor), the specific auxiliary aid or service requested, the time and date of the scheduled appointment (if a scheduled appointment was made), the time and date the auxiliary aid or service was provided, the type of auxiliary aid or service provided if different from what was requested, and, if applicable, a statement that the requested auxiliary aid or service was not provided.
29. The Center will provide mandatory ADA training for all its employees, staff members, and other individuals affiliated with The Center who might interact with deaf or hard-of-hearing Patients or Companions within sixty (60) days of the effective date of this Agreement, and will be conducted annually thereafter. Such training will be sufficient in duration and content to train the individual in:
    1. the various degrees of hearing impairment, language, and cultural diversity in the deaf community;
    2. identification of communication needs of persons who are deaf or hard of hearing;
    3. recommended and required charting procedures governing requests for auxiliary aids and services;
    4. types of auxiliary aids and services available at The Center and how to secure them in a timely manner;
    5. the proper use and role of qualified interpreters;
    6. the proper use and role of video remote interpreting services;
    7. making and receiving calls through TTYs and the relay service; and
    8. any other applicable requirements of this Agreement.
30. The Center will hire an outside advocacy group to conduct the initial trainings described in paragraphs 29 and 31 of this Agreement. The trainer shall be subject to the approval of the U.S. Attorney’s Office. For the required annual trainings thereafter, The Center may conduct the trainings without the assistance of an independent group, but must sufficiently update and/or create training materials in order to ensure the trainings include any new developments to the ADA and its requirements. The Center may also videotape the initial trainings for annual trainings thereafter.
31. All employees who receive incoming telephone calls from the public will receive special instructions by The Center on using TTYs or relay services to make, receive, and transfer telephone calls. Such training must be provided within 60 days of the effective date of this Agreement and will be conducted annually thereafter.
32. The Center will provide the training specified above in paragraphs 29-31 to new employees within thirty (30) days after the commencement of their services for The Center.
33. The ADA authorizes the Attorney General to seek a court award of compensatory damages on behalf of individuals aggrieved as the result of violations of the ADA. 42 U.S.C. § 12188(b)(2)(B); 28 C.F.R. § 36.504(a)(2). Within ten (10) days of the effective date of this Agreement, The Center will compensate the Complainant in this matter by sending a certified check in the amount of fifteen thousand dollars ($15,000.00) made out to the Complainant, via Federal Express or certified mail, return receipt requested, to: Attn: Steve Gordon, United States Attorney’s Office, Eastern District of Virginia, Justin W. Williams U.S. Attorney’s Bldg., 2100 Jamieson Avenue, Alexandria, Virginia 22314.
34. In consideration for the compensatory damages set forth above, the United States agrees that within ten (10) days of its receipt of the Agreement signed by The Center, it will obtain Complainant’s signature on copies of the “Waiver and Release of Claim” form attached hereto as Attachment C. The United States will mail an original of the signed Waiver and Release of Claim forms signed by Complainant to The Center within fifteen (15) days of the United States’ receipt of same.

IMPLEMENTATION AND ENFORCEMENT OF THE SETTLEMENT AGREEMENT

35. Within ninety (90) days of the effective date of this Agreement, The Center will provide the United States with a copy of all training materials used to train its staff, a list of the staff trained that includes the date and time of their training, photographs of the notices posted in its offices pursuant to this Agreement, and a copy of its contract(s) with one or more sign language interpreter or sign language interpreter agency.
36. Beginning ninety (90) days after the effective date of this Agreement and continuing every six months thereafter throughout the life of the Agreement, The Center will send the United States a written report including a copy of all Forms completed by Patients, Companions, or staff since the last report, copies of all memoranda prepared pursuant to this Agreement since the last report, and a detailed description of the auxiliary aid or service provided in response to each request. In addition, The Center’s report will include any and all new or updated information as provided for in paragraph 36, above. If no deaf or hard of hearing individuals visit The Center during a reporting period, then The Center’s report shall so state and include only the information in Paragraph 36, if applicable.
37. If at any time The Center desires to modify any portion of this Agreement because of changed conditions making performance impossible or impractical or for any other reason, The Center will promptly notify the United States in writing, setting forth the facts and circumstances thought to justify modification and the substance of the proposed modification. Until there is written Agreement by the United States to the proposed modification, the proposed modification will not take effect. These actions must receive the prior written approval of the United States, which approval shall not be unreasonably withheld or delayed.
38. The United States may review compliance with this Agreement at any time. If the United States believes that this Agreement or any of its requirements have been violated, it may institute a civil action in Federal District Court to enforce this Agreement or the requirements of title III, following written notice to The Center of possible violations and a period of 30 days in which The Center has the opportunity to cure the alleged violations.
39. For purposes of the immediately preceding paragraph, it is a violation of this Agreement for The Center to fail to comply in a timely manner with any of its requirements without obtaining sufficient advance written agreement with the United States for an extension of the relevant time frame imposed by the Agreement.
40. Failure by the United States to enforce this Agreement with respect to or any of its provisions or deadlines shall not be construed as a waiver of the United States’ right to enforce other deadlines and provisions of this Agreement.
41. This Agreement shall be binding on The Center and its shareholders, partners, associates, agents, employees, contractors, and volunteers who work in any of The Center’s offices. In the event The Center seeks to transfer or assign all or part of its interest in any facility covered by this Agreement, and the successor or assignee intends on carrying on the same or similar use of the facility, as a condition of the transfer or assignment The Center shall obtain the written accession of the successor or assignee to any obligations remaining under this Agreement for the remaining term of this Agreement.
42. This Agreement, including Attachments A, B, and C, constitutes the entire agreement between the Parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written Agreement, will be enforceable under its provisions.
43. This Agreement is limited to the facts set forth above and does not purport to remedy or resolve any other existing or potential violations of the ADA or any other Federal law.
44. This Agreement does not affect The Center’s continuing responsibility to comply with all applicable aspects of title III of the ADA.
45. A copy of this document or any information contained in it will be made available to any person by The Center or the United States on request.
46. This Agreement will remain in effect for three (3) years from the effective date of this Agreement.
47. The signer of this document, in a representative capacity for The Center represents that he or she is authorized to bind The Center to this Agreement.
48. The date this Agreement becomes effective is the date of the last signature below.

FOR THE UNITED STATES