SETTLEMENT AGREEMENT
BETWEEN
THE UNITED STATES OF AMERICA
AND
ADVANCED PLASTIC SURGERY SOLUTIONS
UNDER THE AMERICANS WITH DISABILITIES ACT

I. BACKGROUND

1. The parties to this Settlement Agreement are the United States of America and Advanced Plastic Surgery Solutions ("APSS").
2. This matter was initiated by a prospective patient, who filed a complaint with the United States Department of Justice and the United States Attorney's Office, alleging that APSS discriminated against her on the basis of her disability in violation of Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12181-12189. Specifically, the Complainant alleges that APSS refused to accept her as a new patient based on disability because she has HIV.
3. The parties agree that it is in their best interest, and the United States believes that it is in the public interest, to resolve this dispute. The parties have therefore voluntarily entered into this Settlement, agreeing as follows:

II. TITLE III COVERAGE AND FINDINGS

4. The Attorney General is responsible for enforcing Title III of the ADA, 42 U.S.C. §§ 12181-12189, and the relevant regulation implementing Title III, 28 C.F.R. Part 36.
5. The Complainant, an individual with HIV, has a physical impairment that substantially limits one or more major life activities, including the functions of the immune system, which is a major bodily function. Accordingly, she has a disability within the meaning of 42 U.S.C. § 12102 and 28 C.F.R. § 36.104.
6. APSS is a limited liability company owned and operated by Andrew Jimerson, M.D., a board certified Plastic Surgeon, specializing in cosmetic and reconstructive surgery.
7. APSS owns, leases or operates places of public accommodation within the meaning of 42 U.S.C. § 12182(a); is a private entity within the meaning of 42 U.S.C. § 12181(6); and is a place of public accommodation within the meaning of 42 U.S.C. § 12181(7), because it affects commerce and operates a professional office of a health care provider. See also 28 C.F.R. § 36.104.
8. Under Title III of the ADA, no person who owns, leases or operates a place of public accommodation may discriminate against an individual on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation. 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a).
9. 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. 42 U.S.C. § 12188(b).
10. As a result of its investigation, the United States has determined the following:
    1. In 2013, Dr. Andrew Jimerson owned and operated APSS, a medical practice which included an ambulatory surgery facility. Dr. Jimerson performed and continues to perform cosmetic surgery providing buttock and breast augmentation; tummy tucks; fat grafting; liposuction and face lifts.
    2. On or about September 11, 2013, the Complainant telephoned APSS to schedule a consultation with Dr. Jimerson. Complainant's call was answered by a third party call center, located in Florida, and retained by Dr. Jimerson to handle large volumes of telephone calls from prospective patients. Upon revealing that she had HIV, a call center employee, not employed by APSS told Complainant that Dr. Jimerson would not perform the procedure because of her HIV status.
    3. Complainant contacted Dr. Jimerson's office a second time and spoke with an employee of APSS asking for reconsideration of the denial of treatment and again was rejected. She then sent an e-mail to Dr. Jimerson's office and received a reply e-mail from an APSS employee who said that Dr. Jimerson would not perform surgery because she had HIV.
    4. Dr. Jimerson has never spoken with the Complainant, and he denies every instructing anyone to decline her request.
11. The United States has determined that APSS discriminated against the Complainant by denying her the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of APSS on the basis of HIV, in violation of 42 U.S.C. § 12182 and 28 C.F.R. § 36.201.
12. APSS denies that it has engaged in a pattern or practice or has maintained a policy of discrimination against individuals in the provision of goods services, facilities, privileges, advantages, or accommodations on the basis of HIV.
13. The Complainant is an aggrieved person pursuant to 42 U.S.C. § 12188(b)(2)(B).

III. ACTIONS TO BE TAKEN BY APSS

14. APSS, including its, physicians, outpatient health care centers, ambulatory surgical center other medical facilities, and agents acting within the scope of their employment with APSS will not discriminate against any individual on the basis of disability, including HIV or AIDS, in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations offered at any of its current or future locations, in violation of Title III of the ADA, 42 U.S.C. § 12182, and its implementing regulation, 28 C.F.R. Part 36.
15. For each potential client who is not accepted as a patient because of his or her disability, including but not limited to HIV or AIDS, APSS will create a written file and will maintain the written file for at least two years from the date the potential client is not accepted. Each file must identify all persons involved in the determination and must include written documentation supporting the basis for the determination. Copies of such files shall be provided to the United States within ten (10) days of any request for them.
16. Within thirty (30) days of the effective date of this Agreement, APSS will submit a draft non-discrimination policy to the United States for its review and approval. The non-discrimination policy will state that it does not discriminate in the provision of services to persons with disabilities, including persons who have HIV or AIDS. Once it has been approved by the United States, APSS will adopt, maintain, and enforce the non-discrimination policy for the duration of this Agreement. This policy statement will be conspicuously posted in the reception area of each current and future APSS facility, outpatient health care center, and ambulatory care facility, and on the company's main webpage or "homepage," currently located at http://www.advancedplasticsurgerysolutions.com, as well as on the homepage of any current or future APSS website, for the duration of this Agreement.
17. Within (60) days of the effective date of this Agreement, and every year thereafter for the duration of the Agreement, APSS will provide training on Title III of the ADA to all APSS employees, including training about HIV/AIDS and discrimination in general.
18. In addition, APSS will ensure that all new employees, who are involved with admissions or treatment of patients receive the training referenced in paragraph 17 as a component of new employee training and orientation. APSS shall provide the training to new employees within thirty (30) days of their start date.
19. Employees whose duties will involve the record-keeping provisions set forth in paragraph 15 shall be trained on how to implement those provisions.
20. All training manuals or written materials concerning APSS's policies and practices used in the training required in paragraph 17 or revised or created after the effective date of this Agreement shall be consistent with the provisions of this Agreement.
21. APSS shall create and maintain an attendance log that documents the name of each individual who attends the trainings required in paragraph 17, his or her title, and the date he or she attended the training. Copies of such attendance sheets shall be provided to the United States within ten (10) days of any request for them.
22. Within ten (10) days after receiving the Complainant's signed release (a blank release form is attached as Exhibit A), APSS will send a check as follows: $25,000 made out to the Complainant. This check is compensation to the Complainant pursuant to 42 U.S.C. §12188(b)(2)(B) for the effects of the discrimination and the harm she has endured (including, but not limited to, emotional distress, and pain and suffering) as a result of APSS's failure to accept her as a new patient.
23. Within thirty (30) days of the effective date of this Agreement, APSS will pay a civil penalty in the amount of $10,000 as authorized by 42 U.S.C. § 12188(b)(2)(C) and 28 C.F.R. § 36.504(a)(3), as amended, in order to vindicate the public interest. This check shall be made out to the United States of America and shall be deposited in the United States Treasury.
24. The two checks shall be mailed to:

    Aileen Bell Hughes
    Civil Rights Enforcement Coordinator
    Assistant United States Attorney
    75 Ted Turner drive, SW, Suite 600
    Atlanta, Georgia 30303

25. APSS will issue to the Complainant an IRS form 1099 reflecting the amount paid to her.
26. APSS will notify the United States in writing when it has completed the actions described in paragraphs 14-23. This notification need only be provided when all of APSS's physicians, outpatient health care centers, ambulatory care center, other medical facilities and agents have completed the action required in the relevant paragraph(s). If any issues arise that affect the anticipated completion dates set forth in those paragraphs, APSS will immediately notify the United States of the issue(s), and the parties will attempt to resolve those issues in good faith.

IV. OTHER PROVISIONS

27. In consideration for the Agreement set forth above, the United States will close its investigation of APSS and will not institute a civil action at this time alleging discrimination based on the findings set forth in paragraph 10. However, the United States may review APSS's compliance with this Agreement or Title III of the ADA at any time. If the United States believes that Title III of the ADA, this Agreement, or any portion of it has been violated, it may commence a civil action in the appropriate U.S. District Court to enforce this Agreement and/or Title III of the ADA.
28. Failure by the United States to enforce any provision of this Agreement is not a waiver of its right to enforce any provisions of this Agreement.
29. If any term of this Agreement is determined by any court to be unenforceable, the other terms of this Agreement shall nonetheless remain in full force and effect, provided, however, that if the severance of any such provision materially alters the rights or obligations of the parties, the United States and APSS shall engage in good faith negotiations in order to adopt mutually agreeable amendments to this Agreement as may be necessary to restore the parties as closely as possible to the initially agreed upon relative rights and obligations.
30. This Agreement is binding on APSS, including all principals, agents, executors, administrators, representatives, employees, successors in interest, beneficiaries, and assignees. In the event that APSS seeks to sell, transfer, or assign all or part of its interest during the term of this Agreement, as a condition of sale, transfer, or assignment, APSS will obtain the written agreement of the successor, buyer, transferee, or assignee to all obligations remaining under this Agreement for the remaining term of this Agreement.
31. The signatory for APSS represents that he or she is authorized to bind APSS to this Agreement.
32. This Agreement constitutes the entire agreement between the United States and APSS on the matters raised herein, and no prior or contemporaneous statement, promise, or agreement, either written or oral, made by any party or agents of any party, that is not contained in this written agreement, including any attachments, is enforceable. This Agreement can only be modified by mutual written agreement of the parties.
33. This Agreement does not constitute a finding by the United States that APSS is in full compliance with the ADA. This Agreement is not intended to remedy any other potential violations of the ADA or any other law that is not specifically addressed in this Agreement, including any other claims for discrimination on the basis of HIV or AIDS. Nothing in this Agreement relieves APSS of its obligation to fully comply with the requirements of the ADA.
34. The paragraph headings in this Agreement are for convenience only and will not be deemed to affect in any way the language or meaning of the provisions to which they refer.
35. APSS shall not discriminate or retaliate against any person because of his or her participation in this matter.

V. EFFECTIVE DATE/TERMINATION DATE

36. The effective date of this Agreement is the date of the last signature below.
37. The duration of this Agreement will be three years from the effective date.