SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA AND
THE HEART CENTER OF MEMPHIS, PLLC

BACKGROUND

1. The parties (Parties) to this Settlement Agreement (Agreement) are the United States of America (United States) and The Heart Center of Memphis, PLLC ("Heart Center").
2. The Attorney General of the United States (Attorney General) is authorized to investigate alleged violations of title III of the Americans with Disabilities Act of 1990, as amended ("ADA") and to bring a civil action in federal court if the United States is unable to secure voluntary compliance.  42 U.S.C. § 12188(b); 28 C.F.R. §§ 36.502, 36.503.
3. The Heart Center is a Professional Limited Liability Company and is privately owned and registered to do business under the laws of the state of Tennessee.  The Heart Center operates professional medical offices where it offers specialty medical care to its patients.  The Heart Center is a "public accommodation" as defined in 42 U.S.C. § 12181(7)(F); 28 C.F.R. § 36.104, because it is a private entity that operates a place of public accommodation whose operations affect commerce.
4. The ADA prohibits public accommodations, including professional offices of health care providers, from discriminating on the basis of disability in the full and equal enjoyment of their goods, services, facilities, privileges, advantages or accommodations. 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a).  Discrimination includes failing to take such steps as necessary to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently than any other individual because of the absence of auxiliary aids and services, 42 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303.
5. This matter was initiated by a complaint filed with the United States against Khan and The Heart Center, alleging violations of title III of the ADA, 42 U.S.C. §§ 12181-12189, and its implementing regulation, 28 C.F.R. Part 36. Specifically, the Complainant, who is deaf, and is thus a person with a disability within the meaning of the ADA, 42 U.S.C. § 12102(1); 28 C.F.R. § 36.104, alleges that the Heart Center discriminated against him by failing to provide him with the full and equal enjoyment of the Heart Center's goods, services, facilities, privileges, advantages or accommodations, and by failing to provide appropriate auxiliary aids and services when necessary for effective communication.  The Complainant uses American Sign Language as his primary means of communication.  The Complainant alleges that when he made an appointment with the Heart Center, he was told by staff of the Heart Center that he would be responsible for making arrangements for a sign language interpreter to accompany him to his appointment.
6. The Heart Center of Memphis, PLLC does not admit to any wrongdoing concerning this matter but acknowledges that an error made by one of its employees led to serious miscommunication to a member of the public regarding The Heart Center's existing policies at the time regarding compliance with the ADA.  The Heart Center has cooperated in good faith with the United States' investigation and deeply regrets the error of its employee and the miscommunication that resulted.
   
   Prior to execution of this Agreement, and in fact at the time of the incident at issue in this Agreement, The Heart Center had a written policy in place that provided that "person[s] with sign language skills will be provided or arranged for any patient that is hearing impaired."  In addition, other requirements imposed under this Agreement are already in place such as the existence of a posted sign in the patient waiting area at The Heart Center.  The Heart Center will, for example, replace the existing signage with what accompanies this Agreement, will bolster and improve its existing policies, and will enter into an agreement implementing the required training and will submit verification and on-going documentation as indicated by this Agreement.

FINDINGS

7. The United States investigated the complaint and made the following findings: In late May of 2012, the Complainant, through a relay service, called the Heart Center for an appointment with Dr. Khan.  The Complainant advised that he was deaf and would need a sign language interpreter to provide interpreter services during his appointment.  The Heart Center advised that Complainant that it was his responsibility to make arrangements for a sign language interpreter.  Thereafter, the Complainant, with the assistance of the Disability Law and Advocacy Center of Tennessee, attempted to convince the Heart Center of its responsibility to provide the means for effective communication with the Complainant without success.  Furthermore, the Heart Center advised the Disability Law and Advocacy Center that it did not understand that it was responsible for paying the fee of any sign language interpreter.  When it became apparent that the Heart Center would not provide a sign language interpreter, the Complainant cancelled his appointment.
8. Complainant is deaf and is therefore a person with a disability within the meaning of 42 U.S.C. § 12102(1)(A) and 28 C.F.R. § 36.104. 
9. The Heart Center violated title III of the ADA by failing to provide appropriate auxiliary aids and services necessary to ensure effective communication with Complainant thereby denying him equal goods, services, facilities, privileges, advantages, or accommodations.  42 U.S.C. §§ 12182(a), 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303.
10. In consideration of the terms of this Agreement, the United States agrees to refrain from filing a civil suit in this matter regarding the areas covered under the Remedial Actions section of this Agreement, except as provided in the Implementation and Enforcement section of the Agreement.
11. In consideration of the United States' agreement to refrain from possible litigation as set out below, the Heart Center agrees to take the actions specified in this Agreement.

DEFINITIONS

12. The term "auxiliary aids and services" includes qualified interpreters on-site or through video remote interpreting (VRI) services; note takers; 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 relay services, 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.
13. The term "qualified interpreter" means an interpreter who, via a video remote interpreting (VRI) service or an on-site 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.
14. The term "staff" shall mean any person working for the Heart Center, whether as an officer, agent, employee, volunteer, or independent contractor, including, without limitation, nurses, doctors, therapists, technicians, physician's or nurse's assistants, nurse practitioners, office managers, administrative assistants, secretaries, receptionists, and other clerical staff.
15. The term "Patient" shall mean any person who is deaf or hard of hearing and who is treated by or who seeks treatment, medical consultation, or other services from the Heart Center.
16. 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.
17. The terms "TTYs" or "TDDs" mean: devices that are used with a telephone to communicate with persons who are deaf or hard of hearing by typing and reading communications.
18. The term "deaf" shall refer to persons who are deaf.  The term "hard-of-hearing" includes persons who have a hearing deficit and who may or may not primarily use visual aids for communication and may or may not use auxiliary aids.

REMEDIAL ACTIONS

19. Consistent with the ADA, the Heart Center will not discriminate against any individual, including both Patients and Companions, on the basis of disability in the full and equal enjoyment of the Heart Center's goods, services, facilities, privileges, advantages, or accommodations by excluding or providing unequal treatment to persons with disabilities.  42 U.S.C. § 12182.
20. Immediately as of the effective date of this Agreement, the Heart Center will provide to individuals who are deaf or hard of hearing appropriate auxiliary aids and services, including qualified interpreters, where necessary to ensure effective communication unless an undue burden or a fundamental alteration would result.
21. The determination of appropriate auxiliary aids or services and the timing, duration, and frequency with which they will be provided, will be made by a Heart Center staff member in consultation with the person with a disability.  In making these determinations, the Heart Center will take into account all relevant facts and circumstances, including without limitation the following:
    1. the nature, length, complexity, and importance of the communication at issue;
    2. the individual's communication skills and knowledge;
    3. the Patient's health status or changes thereto;
    4. the Patient's and/or Companion's request for, or statement of, need for an interpreter; and
    5. the reasonably foreseeable health care activities of the Patient (e.g., medical tests or procedures, rehabilitation services, meetings with healthcare professionals or social workers, or discussions concerning billing, insurance, self-care, prognoses, diagnoses, history, and discharge).
       

    Examples of circumstances when it may be necessary to provide interpreters include, but are not limited to: obtaining a Patient's medical history or description of ailment; and explaining or discussing a Patient's diagnosis or prognosis; procedures, tests, and treatment; and medications prescribed.

22. The determination of appropriate auxiliary aids and services and the timing, duration, and frequency with which they will be provided must be made at the time an appointment is scheduled for the Patient or on the arrival of the Patient or Companion at the Heart Center, whichever is earlier.  The Heart Center will perform a communication assessment as part of the initial Patient assessment, consulting with the Patient, and document the results in the Patient's medical chart.  The Heart Center shall use the form attached hereto as Attachment A.  In the event that communication is not effective, the Heart Center will reassess, in consultation with the Patient or Companion, as applicable, which auxiliary aids and services are needed to ensure effective communication, and document the results accordingly.
23. If a Patient or a Companion has an ongoing relationship with the Heart Center, with respect to each of these subsequent visits, the Heart Center will continue to provide the appropriate auxiliary aids or services to Patient or Companion without requiring a request for the appropriate auxiliary aids or services by the Patient or Companion for each visit.  The Heart Center 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.
24. If a Patient and/or Companion does not request auxiliary aids or services, but the Heart Center has reason to believe that such person would benefit from auxiliary aids or services, the Heart Center will specifically inform the Patient and/or Companion that auxiliary aids and services are available free of charge.
25. The Heart Center will maintain a written policy explaining that it will provide auxiliary aids and services, including qualified interpreters, where such auxiliary aids and services are needed to ensure effective communication with Patients and Companions. 
26. Within sixty (60) days of the entry of this Agreement, the Heart Center shall post and maintain signs of conspicuous size and print in the Heart Center's waiting areas, examination rooms, and wherever a Patient's Bill of Rights is required by law to be posted.  Such signs shall include the language found in Attachment B.  These signs will include the international symbols for "interpreters."
27. Within thirty (30) days of the effective date of this Agreement, the Heart Center will establish and maintain a list of qualified sign language interpreters or interpreter agencies that employ or arrange the services of qualified sign language interpreters to ensure that qualified sign language interpreter services are available. 
28. Within thirty (30) days of the effective date of this Agreement, the Heart Center will submit to the United States its list of sign language interpreter providers. 
29. Immediately, as of the effective date of this Agreement, the Heart Center will maintain a log of each request for an auxiliary aid or service.  The log will record the time and date of the request, the name of the individual who made the request, the name of the individual for whom the auxiliary aid or service is being requested (if different from the requestor), the specific auxiliary aid or service requested, the time and date of the scheduled appointment (if a scheduled appointment was made), the time and date the auxiliary aid or service was provided, the type of auxiliary aid or service provided if different from what was requested, and, if applicable, a statement that the requested auxiliary aid or service was not provided.
30. Within forty-five (45) days of the effective date of this agreement, the Heart Center will provide mandatory ADA training for all its employees, staff members, and other individuals affiliated with the Heart Center who might interact with deaf or hard-of-hearing Patients or Companions, and mandatory ADA training for all employees, staff members, and other individuals affiliated with the Heart Center who might interact with deaf or hard-of-hearing Patients or Companions will be conducted annually thereafter.  Such future 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. recommended and required charting procedures governing requests for auxiliary aids and services;
    4. types of auxiliary aids and services available at the Heart Center and how to secure them in a timely manner;
    5. the proper use and role of qualified interpreters;
    6. the proper use and role of video remote interpreting services;
    7. making and receiving calls through TTYs and the relay service; and
    8. any other applicable requirements of this Agreement.
31. The Heart Center will hire an outside advocacy group to conduct the initial trainings described in paragraphs 30 and 32 of this Agreement.  The trainer shall be subject to the approval of the U.S. Attorney's Office.  For the required annual trainings thereafter, the Heart Center may conduct the trainings without the assistance of an independent group, but must sufficiently update and/or create training materials in order to ensure the trainings include any new developments to the ADA and its requirements.  The Heart Center may also videotape the initial trainings for annual trainings thereafter.
32. All employees who receive incoming telephone calls from the public will receive special instructions by the Heart Center on using relay services to make, receive, and transfer telephone calls.  Such training must be provided within 120 days of the effective date of this Agreement and will be conducted annually thereafter.
33. The Heart Center will provide the training specified above in paragraphs 30-32 to new employees within thirty (30) days after the commencement of their services for the Heart Center, said training may be conducted by the Heart Center.
34. The ADA authorizes the Attorney General to seek a court award of 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, the Heart Center will compensate Complainant in this matter by sending a certified check, made payable to [REDACTED], in the amount of five thousand dollars ($5,000.00), via Federal Express or certified mail, return receipt requested, to: Attn: Gary A. Vanasek, United States Attorney's Office, 167 North Main, Suite 800, Memphis, Tennessee  38103.
35. 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 the Heart Center, it will obtain Complainant's signature on copies of the "Waiver and Release of Claim" form attached hereto as Attachment C.  The United States will mail an original of the signed Waiver and Release of Claim forms signed by Complainant to the Heart Center within fifteen (15) days of the United States' receipt of same.
36. The ADA authorizes the Attorney General to seek a civil penalty as a result of violations of the ADA.  42 U.S.C. § 12188(b)(2)(C); 28 C.F.R. § 36.504(a)(3).  Within ten (10) days of the effective date of this Agreement, the Heart Center will issue and deliver to counsel for the United States a check or money order in the amount of one thousand dollars ($1,000.00) payable to the United States Department of Justice as a civil penalty.  The check is to be delivered in the same manner and to the same address as listed in paragraph 33, above.

IMPLEMENTATION AND ENFORCEMENT OF THE SETTLEMENT AGREEMENT

37. Within one hundred twenty (120) days of the effective date of this Agreement, the Heart Center will provide the United States with a copy of all training materials used to train its staff, a list of the staff trained that includes the date and time of their training, photographs of the notices posted in its offices pursuant to this Agreement, and a copy of its contract(s) with one or more sign language interpreter or sign language interpreter agency.
38. Beginning one hundred twenty (120) days after the effective date of this Agreement and continuing every six months thereafter throughout the life of the Agreement, the Heart Center will send the United States a written report including a copy of all Forms completed by Patients, Companions, or staff since the last report, copies of all memoranda prepared pursuant to this Agreement since the last report, and a detailed description of the auxiliary aid or service provided in response to each request.  In addition, the Heart Center's report will include any and all new or updated information as provided for in paragraph 37, above.
39. If at any time the Heart Center desires to modify any portion of this Agreement because of changed conditions making performance impossible or impractical or for any other reason, the Heart Center 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.
40. 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 the Heart Center of possible violations and a period of 30 days in which the Heart Center has the opportunity to cure the alleged violations.
41. For purposes of the immediately preceding paragraph, it is a violation of this Agreement for the Heart Center 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.
42. Failure by the United States to enforce this Agreement with respect to 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.
43. This Agreement shall be binding on the Heart Center and its shareholders, partners, associates, agents, employees, contractors, and volunteers who work in any of the Heart Center's offices.  In the event the Heart Center 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 the transfer or assignment the Heart Center shall obtain the written accession of the successor or assignee to any obligations remaining under this Agreement for the remaining term of this Agreement.
44. 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.
45. 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.
46. This Agreement does not affect the Heart Center's continuing responsibility to comply with all applicable aspects of title III of the ADA.
47. A copy of this document, or any information contained in it, excluding personal information including but not limited to the Complainant's name and address, will be made available by the Heart Center and/or the United States upon request. 
    
    Requests made to the Heart Center must be made in writing to the Office Manager of the Heart Center.  Upon receipt of such request, the Heart Center will provide the document within two weeks.
48. This Agreement will remain in effect for one (1) year from the effective date of this Agreement.
49. The signer of this document, in a representative capacity for the Heart Center represents that he or she is authorized to bind the Heart Center to this Agreement.
50. The date this Agreement becomes effective is the date of the last signature below.