SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA AND
THE HEART CENTER OF MEMPHIS, PLLC
parties (Parties) to this Settlement Agreement (Agreement) are the United
States of America (United States) and The Heart Center of Memphis, PLLC ("Heart
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.
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.
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.
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
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.
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.
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
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. §
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. §
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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:
- the nature,
length, complexity, and importance of the communication at issue;
individual's communication skills and knowledge;
Patient's health status or changes thereto;
Patient's and/or Companion's request for, or statement of, need for an
- 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).
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.
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
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.
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
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.
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."
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.
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
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
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:
- the various
degrees of hearing impairment, language, and cultural diversity in the deaf
of communication needs of persons who are deaf or hard of hearing;
and required charting procedures governing requests for auxiliary aids and
- types of
auxiliary aids and services available at the Heart Center and how to secure
them in a timely manner;
- the proper
use and role of qualified interpreters;
- the proper
use and role of video remote interpreting services;
- making and
receiving calls through TTYs and the relay service; and
- any other
applicable requirements of this Agreement.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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
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.
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.
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.
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.
Agreement does not affect the Heart Center's continuing responsibility to
comply with all applicable aspects of title III of the ADA.
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
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.
Agreement will remain in effect for one (1) year from the effective date of
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
date this Agreement becomes effective is the date of the last signature below.
FOR THE UNITED STATES:
L. STANTON, III
District of Tennessee
By: /s/ Gary
United States Attorney
North Main Street, Suite 800
Date: June 27, 2013
THE HEART CENTER OF MEMPHIS, PLLC
By: /s/ Shehnaz Khan Manager
Heart Center Authorized Representative
COMMUNICATION ASSESSMENT FORM
Name of Person with Disability (if not patient)
Relationship to Patient: ___________________________
Nature of Disability:
Hard of Hearing
Please let us know what type of effective communication service
would make your visit successful:
Qualified Interpreter (i.e., sign
language, oral) on site
Please describe type of Interpreter
Video Remote Interpreter
All Communication Services will be provided FREE OF CHARGE
these questions so we may communicate effectively with you. As noted above, all communication aids and
devices are provided FREE of CHARGE. If you need further assistance, please ask a
member of our office staff.
Any questions? Please call our office, ___________________
(voice), ________________(TTY), or visit us during
normal business hours.
The Heart Center of Memphis, PLLC ("Heart
Center") and its office staff are committed to providing equal access to
patients, family members, and companions with disabilities.
To ensure effective communication, The
Heart Center provides qualified sign language and oral interpreters, and other
auxiliary aids and services free of charge for patients, family members,
and companions who are deaf, are hard of hearing, or have speech disabilities.
To request auxiliary aids or services,
please speak to ______________. If an
auxiliary aid or service is denied, you can request a
reconsideration by providing this office with a written statement
explaining why you need the aid or service that was denied. If needed, office staff can help write down
your request for reconsideration. If you
have any problems, please speak to _________________ directly.
The Americans with Disabilities Act
(ADA) prohibits discrimination against people with disabilities. People who are deaf, are hard of hearing, or
have speech disabilities have the right under the ADA to request auxiliary aids
and services. For more information about
the ADA, call the Department of Justice's toll-free ADA
Information Line at 1-800-514-0301 (voice), 1-833-610-1264 (TTY) or visit
the ADA Home Page at www.ada.gov.