Settlement Agreement

Under the Americans with Disabilities Act

Between the United States of America and

Dr. Bruce Berenson, M.D., P.A.

for Complaint USAO No: 2011-VO-0468/ DJ No. 202-18-267

THE PARTIES

The parties to this Settlement Agreement ("Agreement") are the United States of America ("United States"), and Dr. Bruce Berenson, M.D., the owner and operator of the Medical Offices of Dr. Bruce Berenson, M.D., P.A. ("Dr. Bruce Berenson, P.A."), currently located at 13660 Jog Road, Suite B1, Delray Beach, Florida 33446.
The United States Department of Justice (the "Department") is the federal agency responsible for administering and enforcing title III of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12188 et seq.

BACKGROUND

This matter was initiated by a complaint filed under title III of the Americans with Disabilities Act of 1990, as amended ("ADA"), 42 U.S.C. §§ 12181 - 12189, with the Department against the Owner/Operator of Dr. Bruce Berenson, P.A. The complaint was referred to the United States Attorney's Office by the Department of Justice. The complainant is a person with a disability and uses a service animal to assist him with daily life activities. The complainant alleges that on February 8, 2011, he was effectively denied access to medical services by Dr. Bruce Berenson, P.A. because he was accompanied by his service animal. More specifically, Dr. Berenson's staff, inappropriately questioned and objected to the presence of complainant's service animal in the office's waiting area, and requested written documentation regarding its training and certification. As a result, the complainant was embarrassed and left without receiving medical services. The investigation by the United States Attorney's Office substantiated the allegation and determined that the actions of the staff of Dr. Bruce Berenson, P.A. resulted in a failure to provide services to the complainant in violation of the ADA.
The ADA prohibits places of public accommodations, including the professional office of a health care provider, from discriminating against any individual on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation, by any person who owns, leases (or leases to), or operates a place of public accommodation, including health care services. 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201. The ADA also requires that such entities make reasonable modifications in policies, practices, or procedures to permit the use of service animals by people with disabilities. 42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302(c).

JURISDICTION

Dr. Bruce Berenson, P.A. is a place of public accommodation as a professional office of a health care provider, and its operations affect commerce. 42 U.S.C. § 12181(7)(F); 28 C.F.R. § 36.104.
The Attorney General of the United States ("Attorney General") is authorized to investigate complaints and bring a civil action under title III when he has reasonable cause to believe that a pattern or practice of discrimination exists or a person has been discriminated against and it raises an issue of general public importance. 42 U.S.C. § 12188.
The parties have determined that Department of Justice complaint 202-18-267 filed with the United States can be resolved without litigation pursuant to the terms of this Agreement.
Dr. Bruce Berenson, P.A. agrees to modify its policies, practices, or procedures, as outlined in this Agreement, to ensure that individuals who use service animals receive equal access to the health care services provided by Dr. Bruce Berenson, P.A. compared to other individuals.
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 regarding the areas covered under the Remedial Action section of this Agreement, except as provided in the Enforcement and Implementation sections of the Agreement.

REMEDIAL ACTION

Consistent with title III of the ADA, Dr. Bruce Berenson, P.A. will not discriminate against any individual on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of Dr. Bruce Berenson, P.A. by excluding or providing unequal treatment to persons with disabilities, including individuals who use service animals. 42 U.S.C §12182; 28 C.F.R. §§ 36.201, 36.202. Specifically, Dr. Bruce Berenson, P.A. also will make reasonable modifications to policies, practices, or procedures that are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, including those who use service animals. 42 U.S.C. §12182(b)(2)(A)(ii); 28 C.F.R. §§ 36.302(a), (c).
Service Animal Policy: Within ten (10) days of the effective date of this Agreement, Dr. Bruce Berenson, P.A. shall adopt a written policy (the "Service Animal Policy") indicating that all persons with disabilities, including those accompanied by service animals, are welcome in the medical offices of Dr. Bruce Berenson, P.A. The policy will provide that Dr. Bruce Berenson, P.A. may not deny admission into his office or otherwise fail to provide medical services to a person with a disability because that person is accompanied by a service animal. The policy will also provide that a person with a disability will not be asked or required to explain the nature of his or her disability or to provide documentation regarding the service animal's training or certification. Furthermore, in accordance with 28 C.F.R. § 36.302, the policy will provide that the office may only ask if the service animal is required because of a disability, and what work or task the service animal has been trained to perform. In addition, the policy will make it clear that the person with a disability may not be asked to pay any extra fee or charge or to comply with any additional condition of service because of a disability or because they are accompanied by a service animal. The Owner/Operator will maintain and enforce the Service Animal Policy throughout the term of this Agreement. A copy of the Service Animal Policy is attached hereto as Attachment A.
Distribution of Service Animal Policy: Within ten (10) days of the date on which the Owner/Operator of Dr. Bruce Berenson, P.A. adopts the Service Animal Policy, Dr. Bruce Berenson, P.A. shall distribute the Policy to all agents, employees, or contractors, including the doctors, nurses, assistants, receptionist, and other employees or contractors whose duties involve contact with Dr. Bruce Berenson, P.A.'s customers. Dr. Bruce Berenson, P.A. shall ensure that all new employees, agents, or contractors whose duties involve customer contact receive a copy of the Service Animal Policy within two (2) days of beginning service with Dr. Bruce Berenson, P.A. Within thirty (30) days of the effective date of this Agreement, Dr. Bruce Berenson, P.A. will provide the United States with proof of the adoption and distribution of this Service Animal Policy.
Training: Dr. Bruce Berenson, P.A. shall train all present and future employees, agents, or contractors engaged in providing medical services, and employees and contractors whose duties involve patient or potential patient contact, to ensure that all people with disabilities, including those with service animals, are treated in a nondiscriminatory manner and are afforded the same service and courtesy as that afforded to other patients, consistent with the Service Animal Policy. Dr. Bruce Berenson, P.A. shall provide its training materials to the Department for review prior to providing the training. All current employees, agents and contractors required to be trained pursuant to this paragraph shall be trained within sixty (60) days of the effective date of this Agreement. All future employees, agents and contractors required to be trained pursuant to this paragraph shall be trained within two (2) days of beginning service with Dr. Bruce Berenson, P.A. or within sixty (60) days of the effective date of this Agreement, whichever is later. The initial training may be videotaped for subsequent use with new employees.
Signs: Within twenty (20) days of the effective date of this Agreement, Dr. Bruce Berenson, P.A. shall post the following notice, printed in 26 point font or larger, in the reception area of each medical office where it can readily be seen by potential patients within his offices:
"Persons with disabilities who are accompanied by a service animal are welcome in the medical offices of Dr. Bruce Berenson, P.A." (Attached hereto as Attachment B.)

Notices will remain posted in Dr. Bruce Berenson, P.A.'s medical offices and readily visible to potential patients throughout the term of this Agreement and will be replaced if damaged.

Incorporation of Service Animal Policy into all Employment Contracts: Beginning ten days after the effective date of this Agreement, Dr. Bruce Berenson, P.A. will require compliance with the Service Animal Policy as a term of any new, amended, or renewed contract with any person who is providing services in association with Dr. Bruce Berenson, P.A. and/or any person who leases and/or shares medical facilities with Dr. Bruce Berenson, P.A. to provide medical services.
Dr. Bruce Berenson, P.A. will promptly investigate each oral or written complaint it receives alleging inappropriate treatment of a person with a disability accompanied by a service animal. Dr. Bruce Berenson, P.A. shall respond in writing to each individual who makes an oral or written complaint as described in the previous sentence within seven (7) days of the date that the complaint is received. In each instance where the facts show that one of Dr. Bruce Berenson, P.A.'s agents, employees, or contractors or any individual otherwise affiliated or associated with Dr. Bruce Berenson, P.A. to provide medical services, violated the Service Animal Policy, Dr. Bruce Berenson, P.A. will take prompt remedial action as set out in paragraph 17.
Sanctions: Dr. Bruce Berenson, P.A. will impose sanctions on its agents, employees, or contractors for violation of the Service Animal Policy in a manner consistent with its enforcement of violations of other employment policies.
Throughout the term of this Agreement, Dr. Bruce Berenson, P.A. will maintain records of the complaints received, investigations, and sanctions imposed regarding the service animal policy, which shall be available for review by the United States if requested.
Six months after the effective date of this Agreement, and every six months thereafter until the Agreement expires, Dr. Bruce Berenson, P.A. will submit a report to the United States briefly describing each complaint it has received alleging inappropriate treatment of a person with a disability accompanied by a service animal, describing the actions taken in response to each complaint, and if no action was taken, the reason why action was determined to be inappropriate.

MONETARY RELIEF FOR COMPLAINANT

The ADA authorizes the Attorney General to seek 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, Dr. Bruce Berenson, P.A. shall pay compensatory damages in the amount of FIVE HUNDRED DOLLARS ($500.00) payable to the complainant, by sending a check to counsel for the United States, 99 N.E. 4th Street, 3rd Floor, Miami, Florida 33132, via certified mail.
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 an authorized representative of Dr. Bruce Berenson, P.A., it will obtain the complainant's signature on the Waiver and Release of Claim form attached hereto as Attachment C. The United States will mail the original signed Waiver and Release of Claim form to counsel for Dr. Bruce Berenson, P.A. within fifteen (15) days of the United States' receipt of same.
Dr. Bruce Berenson, P.A. will not retaliate against the complainant for filing a complaint with the Department or otherwise exercising rights protected by the ADA. 42 U.S.C. § 12203(a).

ENFORCEMENT

If at any time Dr. Bruce Berenson, P.A. desires to modify any portion of this Agreement because of changed conditions making performance impossible or impractical or for any other reason, it 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.
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 Dr. Bruce Berenson, P.A. of possible violations and a period of 30 days in which the Dr. Bruce Berenson, P.A. has the opportunity to cure the alleged violations.
For purposes of the immediately preceding paragraph, it is a violation of this Agreement for Dr. Bruce Berenson, P.A. 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.
Failure by the United States to enforce this entire Agreement 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.
This Agreement shall be binding on Dr. Bruce Berenson, P.A., its agents, employees and contractors. In the event Dr. Bruce Berenson, P.A. 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 sale Dr. Bruce Berenson, P.A. shall obtain the written accession of the successor or assignee to any obligations remaining under this Agreement for the remaining term of this Agreement.

IMPLEMENTATION

The effective date of this Agreement is the date of the last signature below.
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.
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.
This Agreement does not affect Dr. Bruce Berenson, P.A.'s continuing responsibility to comply with all applicable aspects of title III of the ADA. In particular, title III imposes an obligation to make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford goods, services, and facilities to individuals with disabilities.
A copy of this document or any information contained in it will be made available to any person by Dr. Bruce Berenson, P.A. or the United States on request.
This Agreement will remain in effect for three (3) years from the effective date of this Agreement.
The person signing this document represents that (s)he is authorized to bind Dr. Bruce Berenson, P.A. to this Agreement.

ATTACHMENT A

DR. BRUCE BERENSON, P.A.
POLICY REGARDING SERVICE ANIMALS FOR CUSTOMERS WITH DISABILITIES

In compliance with the Americans with Disabilities Act (ADA), Dr. Bruce Berenson, P.A. is committed to providing medical services for patients with disabilities, including those individuals with disabilities who are accompanied by service animals. Service animals play an important role in ensuring the independence of people with disabilities. It is, therefore, our policy to welcome any service animal that is individually trained to assist a person with a disability in our medical facilities.

What is a Service Animal?

Service animals are trained to provide assistance to persons with disabilities. Service animals come in all breeds and sizes. They may be trained either by an organization or by an individual with a disability, need not be certified or licensed, and provide a wide range of services that may or may not be identifiable, including but not limited to: (1) assisting persons with mobility disabilities by balancing, carrying, and recovering dropped or mislaid belongings, as well as other functions; (2) assisting people who are deaf of hard of hearing by alerting them to sounds, obstacles, and the presence of others; (3) assisting people who are blind or have low vision by alerting them to danger, guiding them, and performing other related functions; and (4) assisting people susceptible to seizures by alerting them to the onset of a seizure, cushioning their fall, reviving them, keeping other people at a safe distance, and mitigating any possible injury.

Dr. Bruce Berenson, P.A.'s Requirements with Regard to Service Animals

If you are not certain that an animal is a service animal, you may ask the person who has the animal if it is a service animal required because of a disability and what service the animal is trained to perform. However, you must not ask a customer with a disability for proof of his or her disability or for any information about his or her disability, nor may you require proof or certification of the animal's training. Service animals do not always have a sign or symbol indicating they are service animals. It is Dr. Bruce Berenson, P.A.'s policy that its agents, employees, and contractors, including but not limited to doctors, nurses, assistants, and receptionists:

must not ask if a patient or potential patient has a disability or is accompanied by a service animal before agreeing to schedule an appointment, admit the patient into the office, or provide medical services to that individual;
must not refuse to admit a patient or potential patient with a disability into the office because that individual is accompanied by a service animal;
must not refuse to provide medical services to a patient or potential patient with a disability because that individual is accompanied by a service animal;
must not ask or require a patient or potential patient accompanied by a service animal to pay any surcharge or deposit not imposed on patients generally because that individual has a service animal. Surcharges or deposits applied to patients or potential patients because they are accompanied by pets must not be applied to patients or potential patients accompanied by service animals; and
must not require a patient or potential patient accompanied by a service animal to comply with any additional conditions of service not imposed on patients generally. Prohibited conditions of service include policies or practices suggesting that patients or potential patients with disabilities accompanied by service animals are not as welcome as other patients. Examples of such conditions include asking a patient to disclose at the time an appointment is being requested that he or she will be accompanied by a service animal, asking or requiring patients or potential patients accompanied by service animals to muzzle the animals, placing restrictions on the areas of the medical office in which patients or potential patients accompanied by service animals are or will be permitted, making patients or potential patients accompanied by service animals wait longer than people without service animals before providing medical services, and making hostile, angry, or insulting comments about a person's service animal or disability.

In addition, for patients or potential patients who are blind or have low vision, office staff must orally alert such individuals that their ride or taxi has arrived if asked to do so or if it is apparent that the individual does not see that the ride or taxi has arrived.

Direct Threats to Health or Safety

In the event that a particular service animal's behavior poses a direct threat to the health or safety of others, Dr. Bruce Berenson, P.A. has the right to exclude the animal from its office at that time, but may not refuse service to that individual with a disability when he or he is not accompanied by a service animal. Moreover, Dr. Bruce Berenson, P.A. will not deny medical services to a person with a disability accompanied by a service animal based on fear of animals or a specific type of animal even if such fear is based on past experience with other animals. Each situation will be considered individually.

All decisions to refuse to provide medical services to a person with a service animal require consultation with Dr. Bruce Berenson, or, if he is unavailable, the senior manager on duty at the time of the occurrence.

Customer Complaints and Questions About Policy

Please handle any customer inquiries or complaints about this policy in accordance with our usual procedures by contacting the Owner/Operator of Dr. Bruce Berenson, P.A.