SETTLEMENT AGREEMENT
BETWEEN
THE UNITED STATES OF AMERICA
AND
CHARLWELL OPERATING, LLC
USAO#2018CV00025 & DJ# 202-36-306
UNDER THE AMERICANS WITH DISABILITIES ACT

I. BACKGROUND

1. The parties to this Settlement Agreement are the United States of America and Charlwell Operating LLC (Charlwell).
2. This matter is based upon a Complaint filed with the United States Department of Justice,  in which a Complainant alleged that Charlwell House, a skilled nursing facility operated by Charlwell 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. Specifically, the Complainant alleges that Charlwell refused to accept a patient for treatment at its facility because that patient was being treated with Suboxone, a medication used to treat Opioid Use Disorder (OUD).
3. The parties have reached an agreement that it is in the parties' 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:

II. 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. The Complaint alleges that Charlwell House, which provides skilled nursing services, post-acute medical services, and rehabilitation programs, denied a bed to an individual with OUD because of that individual’s use of Suboxone, which is a form of medication-assisted treatment (MAT) approved by the U.S. Food and Drug Administration for the use of treating OUD.
6. Charlwell House is a 124-bed health and rehabilitation center located at 305 Walpole Street, Norwood, Massachusetts, and is a place of public accommodation because it is a facility that is a health care provider, hospital or other service establishment, as well as a social service center establishment.  42 U.S.C. §§ 12181(7)(F),(K); 28 C.F.R. §§ 36.104(6),(11) (definition of place of public accommodation).
7. Charlwell is a private entity that owns, operates, leases or leases to a place of public accommodation within the meaning of 42 U.S.C. § 12182(a), and is thus subject to the requirements of Title III of the ADA. 
8. The patient is a person with OUD, 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, the patient is an individual 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. 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).   
11. 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. The United States is authorized to investigate alleged violations of Title III of the ADA, 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. 42 U.S.C. §§ 12188(b), 12212; 28 C.F.R. §§ 36.502, 503, 506.
12. As a result of its investigation, the United States has determined:

1. In December 2016, Charlwell created written policies, consistent with the Massachusetts Department of Public Health’s Circular Letter DHCQ 16-11-662 (DPH’s Circular), stating that the facility would maintain the use of physician prescribed treatments for OUD, including Suboxone and methadone, for individuals prescribed these medications prior to admission to the Charlwell House.
2. DPH’s Circular clarifies that Massachusetts’ regulations state that “the facility is expected to admit the resident and provide for the administration of MAT as directed by the prescribing or ordering physician at the resident’s opioid treatment program (OTP) or Office Based Opioid Treatment with buprenorphine² program (OBOT).”
3. In November 2017, however, when a hospital requested an available bed for a patient using Suboxone, intake staff at Charlwell House responded “We cannot accept this pt due to suboxone and state regulations. If there is a med change, please advise and we will reconsider. Thank you.”
4. Charlwell House did not admit any patients that had physician prescribed treatments for OUD, such as MAT, including Suboxone or methadone in 2017.
5. Even though Charlwell adopted a written policy of admitting individuals on MAT, the United States has determined that by refusing to accept a patient in November 2017 solely because that patient was on Suboxone, in practice Charlwell imposed eligibility criteria that screened out individuals with OUD, in violation of 42 U.S.C. § 12182(b)(2)(A)(i) and 28 C.F.R. § 36.301, and also discriminated against this patient by denying the patient the opportunity to equally participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations being offered, in violation of 42 U.S.C. § 12182(b)(1)(A)(i) and 28 C.F.R. § 36.201.

III. ACTIONS TO BE TAKEN BY CHARLWELL HOUSE

14. Charlwell will not discriminate against any individual on the basis of disability, including individuals with disabilities 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 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.
15. Within 30 days of the effective date of this Agreement, Charlwell will submit a draft non-discrimination policy to the United States for its review and approval. The non-discrimination policy will state that Charlwell House does not discriminate in the provision of services to persons with disabilities, including persons with OUD who are on MAT. The non-discrimination policy will also direct those with questions, concerns, or complaints on how to make contact with Charlwell regarding those issues. Within 21 days of approval by the United States, Charlwell will adopt and implement the non-discrimination policy, and Charlwell will maintain and enforce the non-discrimination policy for the duration of this Agreement. Charlwell will conspicuously post the non-discrimination policy in the reception area of Charlwell House and as a link on the company’s main webpage or ”homepage,” currently located at http://www.charlwell-health.com, as well as on the homepage of any current or future Charlwell website, for the duration of this Agreement.
16. After Charlwell 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 Charlwell House employees and contractors who are involved with admissions, including training about OUD, MAT, and discrimination in general.
17. Charlwell House will ensure that all new employees and contractors who are involved with admissions receive the training referenced in paragraph 16 as a component of new employee training and orientation through the duration of this Agreement. Charlwell shall provide the training to such new employees and contractors as a part of their standard training for new employees and contractors.
18. All training manuals or written or electronic materials that address Charlwell’s policies and practices used in the trainings required in paragraphs 16 and 17 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.
19. Charlwell shall create and maintain a log that documents the name of each individual who participates in the trainings required in paragraphs 16 and 17, 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.
20. Charlwell shall create and maintain a log that documents the name of each admissions intake where the prospective patient is on MAT or has OUD. The log shall include whether the prospective patient was prescribed MAT, and if so, the name of the MAT, 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
21. For the duration of this Agreement and within 21 days of receipt of any written or oral complaint made to Charlwell alleging a failure to admit a patient on the basis of physician approved OUD treatments, including MAT, Charlwell 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 Charlwell House’s response.
22. Within 30 days of the effective date of this Agreement, Charlwell shall pay a civil penalty in the amount of $5,000.00 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.
23. Charlwell will notify the United States in writing when it has completed the actions described in paragraphs 15-17. Notification of Charlwell’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 14-23, Charlwell 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

24. In consideration for this Agreement, the United States will close its investigation of USAO# 2018V00025 and DJ# 202-36-306 and will not institute a civil action at this time alleging discrimination based on the findings set forth in paragraph 12. The United States, however, may review Charlwell’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.
25. 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.
26. 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 Charlwell 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.
27. This Agreement is binding on Charlwell, including all principals, agents, executors, administrators, representatives, employees, and beneficiaries. In the event that Charlwell seeks to sell, transfer, or assign substantially all of its assets or a controlling membership position in Charlwell House during the term of this Agreement, then, as a condition of such sale, transfer, or assignment, Charlwell 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.
28. The signatory for Charlwell represents that he or she is authorized to bind Charlwell to this Agreement.
29. This Agreement constitutes the entire agreement between the United States and Charlwell House 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.
30. This Agreement does not constitute a finding by the United States that Charlwell 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 Charlwell of its obligation to fully comply with the requirements of the ADA.
31. Charlwell shall not discriminate or retaliate against any person because of his or her participation in this matter.

V. EFFECTIVE DATE/TERMINATION DATE

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