SETTLEMENT AGREEMENT
UNDER THE AMERICANS WITH DISABILITIES ACT
BETWEEN
THE UNITED STATES OF AMERICA
AND
DR. JAVIER RIOS
USAO # 2017V02900, DJ # 202-12C-633

I. BACKGROUND

1. The parties to this Settlement Agreement (“Agreement”) are the United States of America (the “United States”) and Dr. Javier Rios (“Dr. Rios”).
2. Dr. Rios operates a medical office at 141 North Main Street, Lake Elsinore, California, 92530.
3. The United States Attorney’s Office for the Central District of California (“USAO”), a component of the Department of Justice, initiated an investigation of Dr. Rios under Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181–12189, as amended, and its implementing regulations, 28 C.F.R. Part 36, upon the receipt of a complaint, USAO No. 2017V02900, DOJ No. 202-12C-633. The complaint alleged that Dr. Rios failed to provide auxiliary aids and services to a patient who is deaf, and that Dr. Rios’ staff  informed the patient that it was her insurance provider’s responsibility to provide such services.
4. The United States and Dr. Rios have reached an agreement that is in the parties’ best interests, and that the United States believes is in the public interest, to resolve this matter on mutually agreeable terms. The parties have therefore voluntarily agreed to the terms of this Agreement.

II. TITLE III COVERAGE AND DETERMINATIONS

5. The Department of Justice is authorized under 42 U.S.C. § 12188 and 28 C.F.R. Part 36, Subpart E, to investigate complaints to determine compliance with Title III of the ADA. Ensuring that health care providers do not discriminate on the basis of disability is an issue of general public importance. Title III authorizes the United States 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 involves a pattern or practice of discrimination or that raises issues of general public importance. 42 U.S.C. §§ 12188(a)(2), 42 U.S.C. §§ 12188(b), 12212; 28 C.F.R. §§ 36.502, 503, 506.
6. The complainant, who is deaf, is an individual with a disability within the meaning of the ADA. 42 U.S.C. § 12102; 28 C.F.R. §§ 36.104, 36.105.
7. The complaint alleges that Dr. Rios discriminated against an individual with a disability who sought care from Dr. Rios’s medical office. Specifically, the complainant alleges that, in over a dozen medical appointments with Dr. Rios between 2016 and 2018, Dr. Rios failed to provide her a qualified sign language interpreter or any other auxiliary aid or service to ensure effective communication.
8. The ADA prohibits discrimination on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations by any person who owns, operates, leases or leases to a place of public accommodation. 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a).
9. Dr. Rios’s medical office is a place of public accommodation within the meaning of Title III of the ADA, 42 U.S.C. § 12181(7)(F), 28 C.F.R. § 36.104. Dr. Rios operates the place of public accommodation, and is therefore obligated to comply with the requirements of Title III. Id.; 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a). 
10. Pursuant to the ADA, a public accommodation shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently from other individuals because of the absence of auxiliary aids or services, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods and services being offered, or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303(a). A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication. 28 C.F.R. § 36.303(c).
11. A public accommodation shall not require an individual with a disability to bring another individual to interpret for her. 28 C.F.R. § 36.303(c)(2).
12. On the basis of its investigation, the United States has determined that Dr. Rios discriminated against the complainant in violation of Title III of the ADA by failing to provide her with auxiliary aids and services necessary for effective communication during more than a dozen medical appointments at Dr. Rios’s medical office, in violation of 42 U.S.C. § 12182(b)(2)(A)(iii) and 28 C.F.R. § 36.303.

III. DEFINITIONS

13. The term “auxiliary aids and services” includes qualified interpreters onsite or through video remote interpreting (VRI) services; notetakers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard-of-hearing. 28 C.F.R. § 36.303(b)(1).
14. The term “companion” means a person who is deaf or hard-of-hearing and is a family member, friend, or associate of an individual seeking access to, or participating in, the goods, services, facilities, privileges, advantages, or accommodations of a public accommodation, who, along with such individual, is an appropriate person with whom the public accommodation should communicate. 28 C.F.R. § 36.303(c)(1)(i).
15. The term “effective date” means the date of the last signature below.
16. The term “patient” shall be broadly construed to include any individual who is deaf or hard-of-hearing and is seeking or receiving health care services from Dr. Rios, whether as an inpatient or an outpatient.
17. The term “qualified interpreter” means an interpreter who, via a video remote interpreting (VRI) service or an onsite appearance, is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators. 28 C.F.R. § 36.104.

IV. REMEDIAL ACTIONS

1. Prohibition of Discrimination
   18. Nondiscrimination. Dr. Rios shall provide appropriate auxiliary aids and services, including qualified interpreters, where they are necessary to ensure effective communication with deaf and hard-of-hearing patients and companions.  Pursuant to 42 U.S.C. § 12182(a), Dr. Rios shall also provide deaf and hard-of-hearing patients and companions with the full and equal enjoyment of the services, privileges, facilities, advantages, and accommodations of Dr. Rios’s medical office as required by this Agreement and the ADA.
   19. Non-Exclusion. Dr. Rios shall take steps to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently from other individuals because of the absence of auxiliary aids or services, unless taking those steps would fundamentally alter the nature of the goods and services being offered, or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303(a). Dr. Rios shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication. 28 C.F.R. § 36.303(c).
   20. Interpreter. A public accommodation shall not require an individual with a disability to bring another individual to interpret for her. 28 C.F.R. § 36.303(c)(2).  
   21. Retaliation and Coercion. Dr. Rios shall not retaliate against or coerce in any way any person who made, or is making, a complaint according to the provisions of this Agreement or exercised, or is exercising, his or her rights under this Agreement or the ADA. See 42 U.S.C. § 12203.
2. Effective Communication
22. Appropriate Auxiliary Aids and Services. Pursuant to 42 U.S.C. § 12182(b)(2)(A)(iii), Dr. Rios will provide to patients and companions, who are deaf or hard-of-hearing, any appropriate auxiliary aids and services that are necessary for effective communication after making the assessment described in paragraph 23 of this Agreement.
23. General Assessment Criteria. The determination of appropriate auxiliary aids or services, and the timing, duration, and frequency with which they will be provided, will be made by at the time an appointment is scheduled for the patient or on the arrival of the patient or companion at Dr. Rios’s medical office, whichever is earlier. The assessment will be made in consultation with the person with a disability. The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. 28 C.F.R. § 36.303(c)(1)(ii). A public accommodation should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication, but the ultimate decision as to what measures to take rests with the public accommodation, provided that the method chosen results in effective communication. Id. In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability. Id.
24. Model Communication Assessment Form. For assessments conducted pursuant to paragraph 23 of this Agreement, Dr. Rios shall use the Model Communication Assessment Form attached to this Agreement as Exhibit A. The medical office shall provide assistance in completing the form at the patient’s or companion's request. After being completed, the form(s) shall be maintained in the patient’s medical chart, whether kept in paper or electronic form. If at any point during a patient’s course of treatment a companion identifies himself or herself as deaf or hard-of-hearing, Dr. Rios’s staff shall promptly provide him/her with the form, if it has not done so already.
25. Record of Need for Auxiliary Aid or Service. The patient’s medical chart shall note whether the patient and/or companion is deaf or hard-of-hearing and what auxiliary aid(s) or service(s) she uses.
26. Ongoing relationship. If a patient or companion has an ongoing relationship with Dr. Rios, for subsequent visits, Dr. Rios will determine what auxiliary aids or services may be needed by the patient or companion and provide such auxiliary aids or services to the patient or companion as appropriate. will keep appropriate records that reflect the ongoing provision of auxiliary aids and services to Patients and Companions, such as notations in a Patient’s medical charts.
27. Auxiliary Aid and Service Log. Dr. Rios will maintain a log in which requests for qualified interpreters on site or through VRI services will be documented. The log will indicate the time and date the request was made, the name of the patient or companion who is deaf or hard-of-hearing, the time and date of the scheduled appointment (if a scheduled appointment was made), the nature of the auxiliary aid or service provided, and the time and date the appropriate auxiliary aid or service was provided. If no auxiliary aid or service was provided, the log shall contain a statement why the auxiliary aid and service was not provided. The log should include the identity of Dr. Rios’s staff who conducted the assessment and made the determination. Such logs will be maintained for the entire duration of the Agreement, and will be incorporated into the semi-annual compliance reports as described in paragraph 40 of this Agreement.
28. Prohibition of Surcharges. All appropriate auxiliary aids and services required by this Agreement will be provided free of charge to the deaf or hard-of-hearing patient or companion.
29. Insurance. Dr. Rios is responsible for furnishing appropriate auxiliary aids and services where necessary to ensure effective communication. 28 C.F.R. § 36.303(c). Accordingly, Dr. Rios shall not deny patients or companions auxiliary aids or services based on any action or inaction by their insurance companies, or tell patients or companions that they or their insurance companies are responsible for providing auxiliary aids or services.
3. Qualified Interpreters
30. Circumstances in Which Interpreters Will Be Provided. Depending on the complexity and the nature of the communication, a qualified interpreter may be necessary to ensure effective means of communication for patients and companions. When a qualified interpreter is needed, Dr. Rios shall provide one to patients and companions who are deaf or hard-of-hearing and whose primary means of communication is sign language, and qualified oral interpreters to such patients and companions who rely primarily on lip reading as necessary for effective communication. Examples of circumstances when the communication may be sufficiently lengthy or complex as to require an interpreter include the following:
1. Discussing a patient’s symptoms and medical condition, medications, and medical history (including medical, psychiatric, psychosocial, and nutritional);
2. Explaining medical conditions, treatment options, tests, medications, and other procedures;
3. Providing a diagnosis or prognosis and recommendation for treatment;
4. Communicating with a patient during treatment;
5. Reviewing, explaining or obtaining informed consent or permission for treatment;
6. Providing instructions for medications, post-treatment activities, and follow-up treatments; and
7. Discussing powers of attorney, living wills and/or complex billing and insurance matters.
31. Availability of Qualified Interpreters. Within 30 days after the effective date of this Agreement, Dr. Rios will establish and maintain a list of qualified interpreters or interpreter agencies that employ or arrange the services of qualified interpreters to ensure that qualified interpreter services are available. Dr. Rios will establish internal procedures for ordering interpreting services that are consistent with the interpreter or interpreter agencies’ procedures. At a minimum, all of Dr. Rios’s requests for interpreters, including the time and date, will be confirmed in writing at the time of the request. Further, Dr. Rios will consider an order for interpreting services to be complete only after receiving written confirmation from the interpreting service that an interpreter will be provided at the time and date requested. Dr. Rios’s staff will file a copy of all written correspondence with interpreting services in the patient’s medical chart. Additionally, for the duration of this Agreement, Dr. Rios’s staff will file a copy of its written correspondence with interpreters and interpreting agencies in the Auxiliary Aid and Service Log discussed in paragraph 27.
32. List of Interpreters. Within 30 days after the effective date of this Agreement, Dr. Rios will submit to the USAO its list of sign language interpreter providers and a copy of its contract(s) with one or more sign language interpreters or sign language interpreter agencies.
33. Video Remote Interpreting. If VRI services are used, Dr. Rios shall ensure that the VRI provides: (1) real-time, full-motion video and audio over a dedicated high-speed, wide-bandwidth video connection or wireless connection that delivers high-quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in communication; (2) a sharply delineated image that is large enough to display the interpreter’s face, arms, hands, and fingers, and the participating individual’s face, arms, hands, and fingers, regardless of his or her body position; and (3) a clear, audible transmission of voices. Dr. Rios will also ensure that adequate training is provided to users of the technology and other involved individuals so that they may quickly and efficiently set up and operate the VRI. 28 C.F.R. § 36.303(f). VRI shall not be used when it is not effective, for example due to a patient’s limited ability to move his or her head, hands or arms; vision or cognitive issues; significant pain; or space limitations in the room. If, based on the circumstances, VRI is not providing effective communication after it has been initiated or it is unavailable, VRI shall not be used as a substitute for an onsite interpreter, and an onsite interpreter shall be provided promptly.
34. Restricted Use of Certain Persons to Facilitate Communication. Dr. Rios will not rely on an adult friend or family member of the individual with a disability to interpret except in an emergency involving an imminent threat to the safety of an individual or the public where there is no interpreter available; or where the individual with a disability specifically requests that the adult friend or family member interpret, the accompanying adult agrees to provide such assistance, and reliance on that adult for such assistance is appropriate under the circumstances. Dr. Rios will not rely on a minor child or a patient to interpret except in an emergency involving an imminent threat to the safety of an individual or the public where there is no interpreter available.
4. Notice to Community and Personnel
35. Policy Statement. Within 30 days after the effective date of the Agreement, Dr. Rios shall post and maintain signs of conspicuous size and print in all medical office waiting areas and wherever a Patient’s Bill of Rights is required by law to be posted. Such signs shall be to the following effect:

    Sign language and oral interpreters, TTYs, and other auxiliary aids and services are available free of charge to people who are deaf or hard-of-hearing. For assistance, please contact any medical office staff or the ADA Coordinator at __________(voice/TTY), room ______. 
    These signs will include the international symbol for “interpreters,” shown below.

    Additionally, Dr. Rios will provide a notice containing the language found above to all patients when they check in for appointments.

36. Notice to Personnel. Dr. Rios shall provide all his staff a policy statement regarding the policy for effective communication for persons who are deaf or hard-of-hearing. This policy statement shall include, but not be limited to, language to the following effect:

If you recognize or have any reason to believe that a patient or companion of a patient is deaf or hard-of-hearing, you must advise the person that appropriate auxiliary aids and services, such as sign language and oral interpreters or video remote interpreting services, will be provided free of charge when appropriate.

Within 30 days after the effective date, Dr. Rios will circulate this notice and communicate it to all his staff, and to all new staff at the beginning of their employment.

5. Training
37. Training of Personnel. Within 60 days after the effective date of this Agreement, and annually thereafter, Dr. Rios will provide mandatory ADA training for all his staff who might interact with deaf or hard-of-hearing patients or companions, and will conduct such training annually thereafter. Such training will be sufficient in duration and content to train the individual in:
1. the various degrees of hearing impairment, language, and cultural diversity in the deaf community;
2. identification of communication needs of persons who are deaf or hard-of-hearing;
3. procedures for documenting requests for and provision of auxiliary aids and services in patient charts;
4. types of auxiliary aids and services available and how to secure them in a timely manner;
5. the proper use and role of qualified interpreters;
6. criteria to be used in order to select an interpreter who is qualified;
7. the proper use and role of video remote interpreting services;
8. making and receiving calls through TTYs and the relay service; and
9. any other applicable requirements of this Agreement.
38. Training Attendance Sheets. Dr. Rios will maintain in electronic form for the duration of this Agreement confirmation of the training conducted pursuant to paragraph 37 of this Agreement, which will include the names, signatures, and respective job titles of the attendees, as well as the date and time of the training session.
6. Reporting, Monitoring, and Violations
39. Training Materials. Within 60 days after the effective date of this Agreement, Dr. Rios will provide the United States with a copy of all training materials used to train its staff, training attendance sheets required in paragraph 38, above, and photographs of the notices posted in the medical office pursuant to this Agreement
40. Compliance Reports. Beginning six months after the effective date of this Agreement and every year thereafter for the entire duration of the Agreement, Dr. Rios will provide a written compliance report to the USAO regarding the status of its compliance with this Agreement. The compliance report will include data relevant to the Agreement, including:
1. the Auxiliary Aid and Service Log described in paragraph 27; and
2. the number of complaints received by Dr. Rios from deaf and hard-of-hearing patients and companions regarding auxiliary aids and services and/or effective communication, and the resolution of such complaints including any supporting documents.

Dr. Rios will maintain records to document the information contained in the compliance reports and will make them available, upon request, to the USAO.

41. Complaints. During the term of this Agreement, Dr. Rios will notify the USAO if any person files a lawsuit, complaint, or formal charge with a state or federal agency, alleging that he or his medical office failed to provide auxiliary aids or services to patients or companions who are deaf or hard-of-hearing, or otherwise failed to provide effective communication to such patients or companions. Such notification must be provided in writing via U.S. mail or electronic mail within 30 days after the date Dr. Rios receives notice of the allegation and will include, at a minimum, the nature of the allegation, the name of the person making the allegation, and any documentation possessed by Dr. Rios or his staff relevant to the allegation. Dr. Rios will reference this provision of the Agreement in the notification to the USAO.
7. Compensatory Relief for Complainant and Release
42. Compensation. Within 10 days after receiving the complainant’s signed release (a blank release form is attached as Exhibit B), Dr. Rios will send by certified mail, return receipt requested, a check in the amount of five thousand dollars ($5,000.00) made out to the complainant [name redacted]. This check is compensation to the complainant pursuant to 42 U.S.C. §12188(b)(2)(B), for the effects of the alleged discrimination suffered as described in paragraphs 3 and 7. The check shall be mailed to the person specified in paragraph 50, below.
8. Civil Penalty to United States
43. Within 21 days after the effective date, Dr. Rios will pay to the United States of America the sum of $1,000.00 pursuant to 42 U.S.C. §12188(b)(2)(C) in order to vindicate the public interest. The check will be mailed to the person specified in paragraph 50, below.

V. ENFORCEMENT AND MISCELLANEOUS

44. Duration of the Agreement. This Agreement will be in effect for three years from the effective date.
45. Consideration. In consideration of the terms of this Agreement as set forth above, the United States shall refrain from undertaking further investigation or from filing a civil suit under Title III of the ADA in this matter except as provided in paragraph 46. Nothing contained in this Agreement is intended or shall be construed as a waiver by the United States of any right to institute proceedings against Dr. Rios or his medical office for violations unrelated to this matter under any statutes, regulations, or rules administered by the United States or to prevent or limit the right of the United States to obtain relief under the ADA.
46. Compliance Review and Enforcement. The United States may review compliance with this Agreement at any time and can enforce this Agreement if the United States believes that it or any requirement thereof has been violated by instituting a civil action in U.S. District Court. If the United States believes that this Agreement or any portion of it has been violated, it will raise its claim(s) in writing with Dr. Rios, and the parties will attempt to resolve the concern(s) in good faith.  The United States will allow Dr. Rios 30 days from the date it notifies him of any breach of this Agreement to cure said breach, prior to instituting any court action to enforce the ADA or the terms of the Agreement.
47. Entire Agreement. This Agreement and the attachments to it constitute 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, shall be enforceable. This Agreement is limited to the facts set forth herein and does not purport to remedy any other potential violations of the ADA or any other federal law.
48. Binding. This Agreement is final and binding on the parties, including all principals, agents, executors, administrators, representatives, successors in interest, beneficiaries, assigns, heirs and legal representatives thereof. Dr. Rios has a duty to inform any such successor in interest of this Agreement.
49. Counterparts. This Agreement may be executed in counterparts, each of which constitutes an original and all of which constitute one and the same Agreement. Electronically transmitted signatures shall constitute acceptable, binding signatures for purposes of this Agreement.
50. Notices. All notices, reports, and other communications to be provided to the United States in accordance with this Agreement shall be in writing and delivered by U.S. mail or electronic mail to the following, unless specified otherwise by the USAO:

Matthew Nickell
Assistant U.S. Attorney
Civil Rights Section, Civil Division
United States Attorney’s Office
300 North Los Angeles Street, Suite 7516
Los Angeles, California  90012
Email: matthew.nickell@usdoj.gov

51. Non-Waiver. Failure by the United States to seek enforcement of this Agreement pursuant to its terms with respect to any instance or provision shall not be construed as a waiver to such enforcement with respect to all other instances or provisions.