Settlement Agreement

Between

The United States of America

and

The Beth Israel Deaconess Medical Center

Under

Title III of the Americans with Disabilities Act

DJ# 202-36-195

Settlement | Department of Justice Press Release

A. DEFINITIONS AND BACKGROUND

1. This matter is based upon a compliance review of physical accessibility for individuals with disabilities at the Beth Israel Deaconess Medical Center ("BIDMC") facilities under title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181 - 12189 (the "ADA"), and the Department of Justice's implementing regulation, 28 C.F.R. Part 36, including the ADA Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A (the "Standards").
2. Title III of the ADA requires BIDMC to ensure that no individual with a disability is discriminated against on the basis of a disability in the full and equal enjoyment of BIDMC's services and facilities. 42 U.S.C. §§ 12182 - 12183. Title III of the ADA requires, among other things, that BIDMC remove barriers to access in existing facilities where it is readily achievable to do so, and that it construct or alter any buildings or facilities in such a manner that those buildings or facilities meet the requirements of title III of the ADA, including the Standards.
3. BIDMC is the product of the 1996 merger of two and separate historic hospitals. The Deaconess Hospital was founded in 1896 by Methodist deaconesses as part of their missionary charter to care for city residents, and the Beth Israel Hospital was founded in 1916 by the Boston Jewish community to meet the needs of the growing immigrant population. Today, BIDMC is a non-profit health care institution, and operates as a quaternary acute care academic medical center and a level one trauma center. BIDMC is recognized for its excellent patient care, medical research, teaching and community service.
   
   BIDMC's facilities consist of multiple connecting and non-connecting buildings in the East and West clinical campuses in the Longwood Medical Area of Boston, Massachusetts. Its facilities also include three community health clinics located in Dorchester, Lexington, and Chelsea, Massachusetts. At the time this review began in 2006, BIDMC owned approximately 30 buildings. Five buildings were constructed after the ADA was implemented, and are subject to the new construction standards. These facilities are Shapiro on the East Campus, West Clinical Center on the West Campus, The Lexington Center in Lexington, Massachusetts, Chelsea Community Care Center in Chelsea, Massachusetts, and Bowdoin Street Community Health Center in Dorchester, Massachusetts.
   
   Many of BIDMC's existing buildings, or parts thereof, have been altered or renovated after the implementation of the ADA and are subject to the alterations requirements of the ADA. These facilities include Ansin, Dana, East, Feldberg, Finard, Gryzmish, Kirstein, Rabb, Reisman, Research North, Research West, Rose, Service, Sherman, Slosberg, Stoneman and Yamins on the East Campus; and Baker, Deaconess, Dooley Chapel, Farr, Libby-Maintenance, Lowry, and Palmer on the West Campus.
4. Although the United States found that BIDMC had made significant efforts to make its facilities accessible, the United States' compliance review identified various aspects of BIDMC's facilities that were not in compliance with title III of the ADA and its regulations, including the provisions referenced in Paragraph 2 above.
5. The United States contends that those violations include, but are not limited to:

   -inaccessible (round) door knobs;
   -inadequate wheelchair maneuvering space at doors;
   -incorrect placement of grab bars at toilets;
   -inadequate maneuvering clearance at toilet room doors;
   -hand sanitizer dispensers that protrude into the circulation path;
   -steep (greater than 8.3%) ramps and curb ramps;
   -inaccessible patient rooms and toilet rooms;
   -inaccessible showers;
   -toilet seats that are mounted too high;
   -toilets not centered at 18" from the side wall;
   -drinking fountain spouts that are too high;
   -lack of accessible examination tables and accessible equipment, and
   -a lack of accessible routes to some clinical areas.

6. On July 1, 2008, the United States provided copies of reports to BIDMC identifying representative violations of the ADA Standards at its facilities and pedestrian routes on the East and West Campuses, as well as at three BIDMC community clinical centers. These reports document alleged violations of the Standards discovered during site surveys of selected portions of BIDMC facilities conducted by the United States in late 2006 and early 2007. BIDMC disputes some of the alleged violations and contends that others have been remedied during the course of the Department's investigation.
7. BIDMC contends that it has taken various steps over the last eighteen years to complete accessibility improvements at its facilities. BIDMC states that, as part of its efforts to comply with title III of the ADA, it:
   1. has engaged in readily achievable barrier removal and is establishing an ADA advisory group (which seeks guidance from architects, designers and disability organizations) to provide recommendations on barrier removal projects;
   2. is establishing a process to review all plans for new construction and alterations for compliance with title III, including the Standards; and
   3. is implementing policies and procedures to ensure that individuals with disabilities will have access to BIDMC's services.
8. The parties to this Settlement Agreement ("Agreement") are the United States and BIDMC. In order to avoid the burden and expense of further investigation and possible litigation, the parties have entered into this Agreement.
9. For the purposes of this Agreement, "Accessible Beds" means height-adjustable hospital beds that are accessible to and usable by persons with disabilities. In order to be deemed accessible, a bed must (i) lower to a point no greater than 17-19 inches from the floor, and (ii) be capable of being locked or otherwise fixed into position so as to permit a safe transfer from a wheelchair or other mobility device without slipping.
10. For the purposes of this Agreement, "Accessible Equipment" means equipment that is accessible to and usable by persons with disabilities. In order to be deemed accessible, any piece of medical equipment to which a patient must transfer for examination or treatment purposes, including, but not limited to, examination tables and chairs, tables used for radiologic or other exams, gurneys, and accessible patient beds, must (i) lower to a point no greater than 17-19 inches from the floor, (ii) be capable of being locked or otherwise fixed into position so as to permit a safe transfer from a wheelchair or other mobility device without slipping, and (iii) have a protective padded surface, unless such a surface is inconsistent with the equipment's intended use.
11. For the purposes of this Agreement, "Accessible Patient Room" means a patient room that complies with the alteration requirements (unless in a newly constructed facility) of the ADA Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A. In addition, all accessible patient rooms must (i) contain an accessible toilet room; (ii) contain or have access to an accessible shower (consistent with the amenities provided in adjacent patient rooms); (iii) contain or have access to height-adjustable, medical-surgical beds ("med-surg beds") that lower to a point no greater than 17-19 inches from the floor ("Accessible Beds"); and (iv) contain or have access to all other amenities provided in, or available to, patients in rooms in the same clinical service category.
12. For the purposes of this Agreement, "Ancillary Equipment" means equipment used with examination tables or chairs, and adapted to or adjustable for use by individuals with disabilities. Ancillary equipment includes items such as leg supports for gynecological examinations, protective padding, positioning straps, and additional supports or rails needed to ensure the safety and comfort of patients with disabilities.

B. JURISDICTION

13. BIDMC is a private entity, located in the Boston, Massachusetts area, that owns and operates hospital facilities, professional offices of health care providers, and other service establishments, and its operations affect commerce. Accordingly, it is a public accommodation covered by title III of the ADA. 42 U.S.C. § 12181(7)(F), 28 C.F.R. § 36.104.
14. The ADA requires that the Department of Justice conduct periodic compliance reviews of public accommodations. 42 U.S.C. § 12188(b)(1)(A). The Department of Justice is also authorized to commence a civil action in a United States district court if it is unable to secure voluntary compliance in any case that involves a pattern or practice of discrimination or that raises issues of general public importance, and to seek injunctive relief, monetary damages, and civil penalties. 42 U.S.C. §§ 12188(a)(2) and 12188(b). In consideration for the terms of this Agreement and BIDMC's promises contained in Section C of this Agreement, the Department of Justice agrees to refrain from undertaking further investigation into or from filing civil suit in this matter at this time, except as provided in Section D below.
15. The subjects of this Agreement are BIDMC's obligations to:
    1. Modify policies, practices, and procedures when necessary in order to afford access to services and facilities to individuals with disabilities, 42 U.S.C. §§ 12182(a) & 12182 (b)(2)(A)(ii), 28 C.F.R § 36.302;
    2. Remove architectural barriers in existing facilities where such removal is readily achievable, 42 U.S.C. § 12182(b)(2)(A)(iv), 28 C.F.R § 36.304;
    3. Undertake alterations in such a manner that they are readily accessible to and usable by persons with disabilities to the maximum extent feasible, 42 U.S.C. § 12183(a), 28 C.F.R §§ 36.402 & 403;
    4. Ensure that all of its newly constructed buildings are readily accessible to and usable by individuals with disabilities as required by the ADA and its regulations, including the Standards, 42 U.S.C. § 12183(a), and 28 C.F.R §§ 36.401-406, and App. A;
    5. Ensure that each clinical service has the requisite number of accessible patient rooms with accessible patient beds and has at least one examination table, and other medical equipment (e.g. exam chairs, lifts, radiologic equipment, wheelchair scales) to enable equal access to medical services, 42 U.S.C. §12182(b)(1)(A), 28 C.F.R § 36.302 and App. A § 6; and
    6. Ensure that no individual with a disability is discriminated against on the basis of disability in the full and equal enjoyment of BIDMC's services and facilities.
       42 U.S.C. §§ 12182 -12183, 28 C.F.R § 36.201(a), and App. A.

    C. REMEDIAL ACTION

    ADA Compliance Officer, Training and Web Site

16. By no later than thirty days after the effective date of this Agreement, BIDMC shall designate an ADA Compliance Officer who shall have the primary authority and responsibility for ensuring that all aspects of BIDMC meet the terms of this Agreement and of the ADA. In addition, the Compliance Officer shall be responsible for overseeing accessibility modification projects, including plans for barrier removal or alterations at BIDMC. The position of Compliance Officer shall be filled and maintained throughout the course of this Agreement. The ADA Compliance Officer shall have authority within BIDMC to implement changes and effectuate this Agreement and shall serve as BIDMC's primary administrative contact for the Agreement.
17. By no later than ninety days after the effective date of this Agreement, BIDMC shall select at least two employees to assist the Compliance Officer in fulfilling the obligations of this Agreement. The Compliance Officer - along with the selected employees who will assist him or her - shall undergo training on the ADA's accessibility requirements no later than one hundred and twenty days after the effective date of this Agreement. The training shall be of sufficient quality and duration to enable these individuals to become proficient in understanding the applicable accessibility requirements of title III of the ADA, including the ADA Standards.
18. By no later than one year after the effective date of this Agreement, BIDMC shall display on its website information to assist individuals with disabilities to identify accessible routes through the BIDMC campuses, accessible parking areas, accessible entrances to buildings, and accessible spaces within buildings. BIDMC's website shall also be updated regularly to reflect newly added or renovated accessible features of the hospital such as accessible patient rooms and accessible equipment.

Changes to Facilities and Routes

19. Except where an earlier deadline is set forth in this Agreement, BIDMC shall complete all work required under this Agreement by five years from the effective date.
20. NEW CONSTRUCTION. As of the effective date of this Agreement, BIDMC agrees to take steps to ensure that it shall design and construct all new facilities, and parts thereof, in compliance with the ADA. 42 U.S.C. § 12183(a)(1), 28 C.F.R. §§ 36.401 & 406. Where BIDMC has failed to comply with the ADA's new construction requirements (with respect to facilities constructed prior to the effective date of this Agreement but constructed for first occupancy after January 26, 1993), BIDMC agrees to correct aspects of those elements of newly constructed facilities that fail to comply with the ADA Standards by no later than three years from the effective date of this Agreement.
21. ALTERATIONS and BARRIER REMOVAL. BIDMC shall ensure that any alterations to BIDMC facilities shall comply with the requirements for alterations in the ADA Standards. 42 U.S.C. § 12183(a)(2), 28 C.F.R. §§ 36.402 - 36.406. BIDMC also agrees to ensure that any specific alterations or barrier removal efforts required by this Agreement shall comply with the requirements for alterations in the ADA Standards, except where, on a case-by-case basis, the parties may agree to different requirements for purposes of this Agreement. BIDMC may deviate from these requirements only after a detailed written request by BIDMC has been approved by the United States. The United States shall respond to a detailed written request within 60 days of receipt. If the parties are unable to agree, then the provisions of paragraph 35 will apply.
    
22. As noted in paragraph 6, the United States surveyed a representative selection of BIDMC's buildings, facilities, and equipment, and provided a report to BIDMC that noted representative violations of the ADA Standards. The manner that these violations will be addressed is identified in Appendix A. The work identified in Appendix A, as well as all other remedial work required by this Agreement, shall be completed pursuant to the Schedule set forth below, unless the parties otherwise agree in writing to modify this Schedule:
    1. By no later than three years from the effective date of this Agreement, BIDMC shall complete all remedial work required by this Agreement at the Bowdoin Street Health Center, Chelsea Health Center, Lexington Health Center, Shapiro Clinical Center and West Clinical Center;
    2. By no later than five years from the effective date of this Agreement, BIDMC shall complete all remedial work required by this Agreement at the remainder of BIDMC's facilities including, but not limited to, Farr, Feldberg, Lowry, Reisman, and Stoneman.
23. Within one year of the effective date of this Agreement, BIDMC shall survey those facilities and routes that were not surveyed by the United States and develop a plan to correct violations of the ADA Standards with respect to new construction and alterations, and to remove barriers to access where it is readily achievable to do so. That plan shall be provided to the Department upon its completion and the remedies required therein shall be implemented in accordance with paragraphs 19-21, and in accordance with the Schedule for Remedial Work set forth in paragraph 22 above. The parties shall negotiate in good faith any disputes regarding the survey conducted by BIDMC.
24. Within one year of the effective date of this Agreement, at those facility entrances and public and common use toilet rooms that are not accessible, BIDMC shall install directional signage that complies with Standards 4.1.2(7), 4.1.3(7)(d), 4.1.3(16), and 4.30 indicating the location of the nearest accessible entrance or public and common use toilet room. At accessible facility entrances and public and common use toilet rooms, BIDMC shall install the International Symbol of Accessibility and signage complying with the applicable requirements of Standards 4.1.2(7), 4.1.3(16), and 4.30.
25. Each building or facility subject to this Agreement currently has at least one accessible entrance. By no later than one year after the effective date of this Agreement, BIDMC shall provide at each facility, at least one accessible exterior route connecting at least one accessible building entrance to each of the following: public transportation stops located on the BIDMC campus, accessible parking spaces, passenger loading zones and public streets or sidewalks. Standards 4.1.2(1), (2) and 4.3.

Patient Rooms

26. BIDMC shall ensure that, at each of its facilities, at least 10% of its patient rooms are Accessible Patient Rooms (see Standards 6.1(1) and (2)), as defined in paragraph 11. In making modifications to ensure that it has provided the percentage of accessible patient rooms specified above, BIDMC shall also continue to ensure that these designated Accessible Patient Rooms are dispersed throughout BIDMC's facilities and clinical services to the greatest extent possible.
    

Medical Equipment

27. BIDMC shall provide Accessible Equipment, as defined in paragraph 10 above, as appropriate to each clinical service that utilizes examination tables or chairs and which does not already have such an Accessible Examination table or chair. Each table and/or chair shall be equipped with all necessary Ancillary Equipment, as defined in paragraph 12 above.
28. To ensure that it provides Accessible Medical Equipment, BIDMC will, within one year of the date of this Agreement, identify and maintain a data base of equipment that is utilized in the care of patients and that can be potentially modified, supplemented or replaced to improve equal access to care for patients with disabilities, including all equipment to which a patient is required to transfer (e.g., examination tables and ophthalmology equipment). In this date base, BIDMC will also identify what, if any, additional equipment (e.g., examination tables and chairs, lifts, radiologic equipment, wheelchair scales, positioning equipment, specialized air mattresses, or other adaptive technology for patients with disabilities, such as accessible call buttons) should be purchased or modified to ensure that individuals with disabilities receive equal access to medical services. Where BIDMC is unable to identify equipment that would ensure that individuals with disabilities receive equal access to particular medical services, identify alternative measures that would ensure such access. This information shall be provided to the United States in BIDMC's annual report, as described in paragraph 32 of this Agreement.
29. BIDMC agrees that at least 10% of examination and treatment equipment purchased or leased after the effective date of this Agreement, but no fewer than one of each type in each clinical service, will be accessible to and usable by individuals with disabilities. BIDMC will maintain this percentage, and ensure that at least one of each type of its Accessible Equipment is of equivalent quality to similar non-Accessible Equipment used by BIDMC. The ADA Compliance Officer or one of his or her representatives will work with the BIDMC purchasing department to establish a protocol to review and coordinate proposed equipment purchases to comply with the height requirements of the ADA^1.
30. BIDMC agrees that with respect to ancillary equipment (as defined in paragraph 12), a reasonable percentage, at least 10%, and no less than one, of each type, will be adapted or adjustable for use by individuals with disabilities.

D. ENFORCEMENT AND REPORTING

31. At any time during the effective dates of this Agreement, the United States reserves the right to inspect, with reasonable notice to counsel, the BIDMC facilities; to request access to records; and to request documentation of compliance with this Agreement.
32. Commencing in 2010, and throughout the term of this Agreement, BIDMC shall provide the United States with an annual report, due on or before October 1 of each year that contains the following:
    1. a detailed written report, including digital photographs, architectural drawings, copies of purchase agreements or orders, and copies of policies and procedures, that demonstrates compliance with the provisions of this Agreement; and
    2. a list of every project for new construction (as defined by the ADA and its regulations) that has commenced, or for which plans have been developed, during the preceding fiscal year, which runs from October 1 to September 30.

    The United States will use its best efforts to, in a reasonably prompt manner, advise BIDMC of any ADA violations that are apparent from the materials provided by BIDMC pursuant to this paragraph.

33. If during the implementation of this Agreement, BIDMC determines that, due to reasons beyond its control (e.g. substantial and unexpected change in its financial situation, etc.), it cannot complete work by the dates set forth in this Agreement, BIDMC may seek a reasonable extension of time to complete the work, and the United States will not unreasonably withhold its consent.
34. By no later than three months after the date all work is due to be completed under this Agreement, BIDMC shall provide the United States with a detailed final written report, including digital photographs, architectural drawings, and copies of policies and procedures, that demonstrates compliance with the provisions of this Agreement. The report need not address items for which BIDMC has previously produced reports. In addition, BIDMC shall maintain the written evaluations and reports required by this Agreement for the duration of this Agreement, and shall provide copies of any report(s) to the United States within 30 days of a request.
35. If, based on the reports provided by BIDMC pursuant to this Agreement or other information, the United States finds that BIDMC has failed to comply with the Agreement, the United States agrees to notify BIDMC in writing of the alleged noncompliance and attempt to seek a resolution of the matter with BIDMC. If the parties are unable to reach a resolution within 60 days of the date of the United States' written notification, the United States may seek enforcement of the terms of this Agreement in the United States District Court for the District of Massachusetts. Alternatively, should the parties be unable to reach a resolution within 60 days of the date of the United State's written notification, the United States may bring an action to enforce compliance with the ADA and its implementing regulation.
36. Nothing in this Agreement waives the right of the United States to bring a civil action to enforce this Agreement or any provision thereof.
37. This Agreement constitutes the entire Agreement between the parties relating to the United States' title III compliance review referenced in paragraph 1 above, and Department of Justice matter number 202-36-195, and no other statement, promise or agreement, either written or oral, made by any party or agents or any party that is not contained in this written Agreement, including its attachments, 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 BIDMC's continuing responsibility to comply with all aspects of the ADA.
38. Failure by the United States to enforce this entire Agreement, or any provision thereof with regard to any deadline or any other provision herein, shall not be construed as a waiver of the United States' right to enforce other deadlines and provisions of this Agreement.

38. If any term of this Settlement 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 Department of Justice and BIDMC 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.
39. This Agreement shall be binding on BIDMC, its agents, its employees, and any successors or assigns. In the event that BIDMC seeks to transfer or assign any facility owned by it as of the date of this Agreement, and the successor or assign intends to continue the same or similar use of the facility, as a condition of sale, BIDMC shall obtain the written accession of the successor or assign to any obligations remaining under this Agreement for the remaining term of this Agreement.
40. This Agreement is effective October 1, 2009, and expires October 1, 2015.
    

Appendix A

October 27, 2009