SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA AND
ATHENA HEALTH CARE SYSTEMS
USAO#2018CV00191 & DJ# 202-36-308
UNDER THE AMERICANS WITH DISABILITIES ACT

1. BACKGROUND
1. The parties to this Settlement Agreement are the United States of America and Athena Health Care Systems (Athena).
2. This matter is based upon complaints filed with the United States Department of Justice that alleged a skilled nursing facility operated by Athena discriminated against a patient on the basis of disability in violation of Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12181-12189. The complaints alleged that an Athena facility refused to accept a patient for treatment because that patient was being treated with medication used to treat Opioid Use Disorder (OUD). As a result of these complaints, the United States opened an investigation and initiated a compliance review of all Athena skilled nursing facilities in Massachusetts to determine whether a violation of the ADA existed.
3. The parties agree that it is in their best interests, and the United States believes that it is in the public interest, to resolve this dispute. The parties have therefore voluntarily entered into this Agreement, agreeing as follows:
2. TITLE III COVERAGE AND DETERMINATIONS
4. The Attorney General of the United States is responsible for administering and enforcing the ADA, 42 U.S.C. §§ 12101-12213, and the relevant regulations implementing Title III, 28 C.F.R. Part 36.
5. Athena operates sixteen (16) skilled nursing facilities in Massachusetts; each provides skilled nursing services, post-acute medical services, and rehabilitation programs. These facilities are:
1. Berkshire Rehabilitation and Skilled Care Center, located at 7 Sandisfield Road, Sandisfield, Massachusetts;
2. Cape Heritage Rehabilitation and Skilled Care Center, located at 37 Route 6A, Sandwich, Massachusetts;
3. Cape Regency Rehabilitation and Health Care Center, located at 120 South Main Street, Centerville, Massachusetts;
4. Highview of Northampton, located at, 222 River Road, Leeds, Massachuestts;
5. Lanessa Extended Care, located at 751 School Street, Webster, Massachusetts;
6. Marlborough Hills Rehabilitation and Health Care Center, located at 121 Northboro Road East, Marlborough, Massachusetts;
7. NorthWood Rehabilitation and Health Care Center, located at 1010 Varnum Avenue, Lowell, Massachusetts;
8. The Oxford Rehabilitation and Health Care Center, located at 689 Main Street, Haverhill, Massachusetts;
9. Parsons Hill Rehabilitation and Health Care Center, located at 1350 Main Street, Worcester, Massachusetts;
10. The Plymouth Rehabilitation and Health Care Center, located at 123 South Street, Plymouth, Massachusetts;
11. South Shore Rehabilitation and Skilled Care Center, located at 84 Chapin Street, Southbridge, Massachusetts;
12. Southbridge Rehabilitation and Health Care Center, located at 184 Lincoln Street, North Easton, Massachusetts;
13. Southeast Rehabilitation and Skilled Care Center, located at 115 North Avenue, Rockland, Massachusetts;
14. The Tremont Rehabilitation and Skilled Care Center, located at 605 Main Street, Wareham, Massachusetts;
15. Webster Manor Rehabilitation and Health Care Center, located at 745 School Street, Webster, Massachusetts; and,
16. Worcester Rehabilitation and Health Care Center, located at 119 Providence Street, Worcester, Massachusetts.

These facilities are places of public accommodation; they are operated by Athena—a private entity—and are facilities that are health care providers, hospitals, or other service establishments, as well as social service center establishments. 42 U.S.C. §§ 12181(7)(F),(K); 28 C.F.R. §§ 36.104(6),(11) (definition of place of public accommodation).      

6. Athena is a private entity that owns, operates, leases (or leases) to places of public accommodation within the meaning of 42 U.S.C. § 12182(a), and is thus is a public accommodation subject to the requirements of Title III of the ADA. 
7. Under Title III of the ADA, no individual shall be discriminated against 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).  Specifically, discrimination includes the imposition or application of eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any good, services, facilities, privileges, advantages, or accommodations, unless such criteria can be shown to be necessary.  42 U.S.C. § 12182(b)(2)(A)(i).   
8. OUD is a physical or mental impairment that substantially limits one or more major life activities, which include the operation of major bodily functions. 28 C.F.R. § 36.105(b)(2) (defining physical or mental impairment to include “drug addiction”). OUD substantially limits major life activities, including caring for oneself, learning, concentrating, thinking, and communicating. 42 U.S.C. § 12102(A). OUD also limits the operation of major bodily functions, such as neurological and brain functions. 42 U.S.C. § 12102(B). The determination whether an impairment substantially limits a major life activity is made without regard to the effect that ameliorating measures—including medication—may have on the impairment. 42 U.S.C. § 12102(4)(E)(i). Accordingly, persons with OUD are individuals with a disability within the meaning of 42 U.S.C. § 12102 and 28 C.F.R. § 36.104, and covered by the ADA’s protections.
9. Under the ADA, the term “individual with a disability” does not include an individual who is “currently engaging in the illegal use of drugs when the covered entity acts on the basis of such use.” 42 U.S.C. § 12210(a).¹ This exclusion does not apply to individuals who are no longer using illegal drugs and who (1) have successfully completed drug rehabilitation, (2) are participating in a supervised rehabilitation program, or (3) are erroneously regarded as using illegal drugs. 42 U.S.C. § 12210(b).
10. Ensuring that rehabilitation centers, hospitals, and other service and social service establishments do not discriminate on the basis of disability is an issue of general public importance. Additionally, ensuring that individuals in treatment for OUD do not face discrimination is also an issue of general public importance. The United States is authorized to investigate alleged violations of Title III of the ADA and initiate compliance reviews, to use alternative means of dispute resolution, where appropriate, including settlement negotiations, to resolve disputes, and to bring a civil action in federal court in any case that raises issues of general public importance, as well as in cases where the United States has reasonable cause to believe that a group of persons is engaged in a pattern or practice of discrimination in violation of the ADA. 42 U.S.C. §§ 12188(b), 12212; 28 C.F.R. §§ 36.502, 503, 506.

11. Following an investigation, the United States substantiated the allegations of the complaints, and determined that some individuals who were prescribed buprenorphine or on methadone treatment, were turned away from Athena facilities based on eligibility criteria that screened out individuals with disabilities, in violation of 42 U.S.C. § 12182(b)(2)(A)(i) and 28 C.F.R. § 36.301, and also denied the opportunity to equally participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations being offered, on the basis of disability, in violation of 42 U.S.C. § 12182(b)(1)(A)(i) and 28 C.F.R. § 36.201.
3. ACTIONS TO BE TAKEN BY ATHENA
12. Athena will not discriminate against any individual on the basis of disability, including on the basis of OUD, in the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations, or impose eligibility criteria that screen out or tend to screen out individuals with disabilities on the basis of OUD in violation of Title III of the ADA, 42 U.S.C. § 12182, and its implementing regulation, 28 C.F.R. Part 36.
13. Within 30 days of the effective date of this Agreement, Athena will submit a draft non-discrimination policy to the United States for its review and approval. The non-discrimination policy will state that no Athena facility discriminates in the provision of services to persons with disabilities, including persons with OUD who are on medications to treat OUD. This policy will also describe how Athena will make individualized assessments as to whether an individual’s current use of drugs poses a direct threat to the health or safety of others. The non-discrimination policy will also direct those with questions, concerns, or complaints on how to make contact with Athena regarding their issues. Within 21 days of approval by the United States, Athena will adopt and implement the non-discrimination policy, and Athena will maintain and enforce the non-discrimination policy for the duration of this Agreement. Athena will conspicuously post the non-discrimination policy in the reception area of Athena and as a link on the company’s main webpage or “homepage,” currently located at http://www.Athenahealthcare.com, as well as on the homepage of any current or future Athena website, for the duration of this Agreement.
14. After Athena receives written approval by counsel for the United States under paragraph 15 of this Agreement, it will within 30 days of receiving that approval, and every six months thereafter, for the duration of this Agreement, provide training on Title III of the ADA to Athena employees and contractors who are involved with admissions for all Athena facilities, including training about OUD, medications used to treat OUD, and disability discrimination in general.
15. Athena will ensure that all new employees and contractors who are involved with admissions receive the training referenced in paragraph 14 as a component of new employee training and orientation through the duration of this Agreement. Athena shall provide the training to such new employees and contractors as a part of their standard training for new employees and contractors.
16. All training manuals or written or electronic materials that address Athena’s policies and practices used in the trainings required in paragraphs 14 and 15 or created or substantively revised after the effective date of this Agreement shall be consistent with the provisions of this Agreement and approved in advance by counsel for the United States.
17. Athena shall create and maintain a log that documents the name of each individual who participates in the trainings required in paragraphs 14 and 15, his or her title, and the date he or she participated in the training(s). This log may be kept in electronic format. Copies of such log shall be provided to the United States within 21 days of any written request for it.
18. Athena shall create and maintain a log that documents the name of each admissions intake where the prospective patient is on medication used to treat OUD or has OUD. The log shall include whether the prospective patient was prescribed medication, and if so, the name of the medication, the names of the entity and individual making the request for admission on behalf of the patient,  whether the prospective patient was denied admission, and if so a description of the reason for denial. This log should not include the name of the patient, and should be maintained in accordance with privacy requirements afforded to individuals in treatment for substance use disorder. 42 C.F.R. Part 2. This log may be kept in electronic format. Copies of such log shall be provided to the United States within 21 days of any written request for it.
19. For the duration of this Agreement and within 21 days of receipt of any written or oral complaint made to Athena alleging a failure to admit a patient on the basis of physician approved OUD treatments, including medication used to treat OUD, Athena shall send written notification to counsel for the United States with a copy of any such written complaint (or, if an oral complaint was made, a description of the oral complaint) and a complete copy of Athena’s response.
20. Within 30 days of the effective date of this Agreement, Athena shall pay a civil penalty to the United States in the amount of $10,000 as authorized by 42 U.S.C. § 12188(b)(2)(C), 28 C.F.R. § 36.504(a)(3), and 28 C.F.R. § 85.5 as amended, in order to vindicate the public interest.
21. Athena will notify the United States in writing when it has completed the actions described in paragraphs 15-17. Notification of Athena’s completion of the training described in paragraph 16-17 will be provided to the United States within 60 days of the training. If any issues arise that affect the anticipated completion dates set forth in paragraphs 12-23, Athena will immediately notify the United States of the issue(s), and the parties will attempt to resolve those issues in good faith.
4. OTHER PROVISIONS
22. In consideration for this Agreement, the United States will close its investigation of USAO# 2018V00191 and DJ# 202-36-308 and will not institute a civil action at this time alleging discrimination based on the findings set forth in paragraph 11. The United States, however, may review Athena’s compliance with this Agreement and/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 institute a civil action in the appropriate U.S. District Court to enforce this Agreement and/or Title III of the ADA.
23. Failure by the United States to enforce any provision of this Agreement is not a waiver of its right to enforce any provision of this Agreement.
24. 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 Athena shall engage in good faith negotiations 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.
25. This Agreement is binding on Athena, including all principals, agents, executors, administrators, representatives, employees, and beneficiaries. In the event that Athena seeks to sell, transfer, or assign substantially all of its assets or a controlling membership position in Athena during the term of this Agreement, then, as a condition of such sale, transfer, or assignment, Athena 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.
26. The signatory for Athena represents that he or she is authorized to bind Athena to this Agreement.
27. This Agreement constitutes the entire agreement between the United States and Athena 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.
28. This Agreement does not constitute a finding by the United States that Athena 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 disability. Nothing in this Agreement relieves Athena of its obligation to fully comply with the requirements of the ADA.
29. Athena shall not discriminate or retaliate against any person because of his or her participation in this matter.
5. EFFECTIVE DATE/TERMINATION DATE
30. The effective date of this Agreement is the date of the last signature below.
31. The duration of this Agreement will be three years from the effective date.