SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
AND
INTERMOUNTAIN HEALTH SERVICES
DJ No. 202-22-37

1. BACKGROUND
1. This matter is based upon a compliance review of physical accessibility for individuals with disabilities at Intermountain Hospital, located at 303 N. Allumbaugh St., Boise, ID, 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,   including the 1991 Standards, 28 C.F.R. Pt. 36, App. D and the 2010 Standards, which consist of the 2004 ADAAG and the requirements contained in subpart D of the ADA regulations (the “Standards”).
2. Intermountain Hospital, a facility offering 24-hour inpatient, as well as certain outpatient, care in Boise, Idaho for individuals experiencing mental health or chemical dependency issues, is owned and operated by BHC Intermountain Hospital, Inc. d/b/a Intermountain Hospital (“BHC”). Intermountain Hospital was initially constructed in about 1980. Thereafter, BHC acquired Intermountain Hospital in or about 2010. BHC represents that it has made certain additions and/or alterations to Intermountain Hospital since it acquired said facility in or about 2010.
3. Title III of the ADA requires BHC to ensure that no individual with a disability is discriminated against on the basis of a disability in the full and equal enjoyment of BHC’s services and facilities. 42 U.S.C. §§ 12182 - 12183. Title III of the ADA requires, among other things, that BHC remove barriers to access in its existing facilities where it is readily achievable to do so, and that alterations to its buildings or facilities (as defined by the ADA) be readily accessible to or usable by individuals with disabilities to the maximum extent feasible. Id.
4. In its compliance review of Intermountain Hospital, the United States surveyed representative aspects of the facility and identified architectural barriers at Intermountain Hospital that were not in compliance with title III of the ADA and its regulations. The United States’ review was limited to physical accessibility issues.
5. On May 18, 2016, the United States provided a copy of its report to BHC, identifying alleged representative architectural barriers at Intermountain Hospital during its compliance review identified in paragraph 4, above. BHC disputes the alleged architectural barriers to access set forth in the report.
6. The parties to this Settlement Agreement (“Agreement”) are the United States and BHC.  In order to avoid the burden and expense of further investigation and possible litigation, the parties have entered into this Agreement.
2. JURISDICTION
7. BHC is a corporation with its principal place of business located in Boise, ID, that owns and operates a hospital facility that is a place of public accommodation under the ADA. 42 U.S.C. § 12181(7)(F); 28 C.F.R. §36.104. Accordingly, BHC is a public accommodation covered by title III of the ADA. Id.
8. The ADA authorizes the Department of Justice to conduct periodic compliance reviews of covered entities. 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 cannot 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 (b). In consideration for the terms of this Agreement and BHC’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, except as provided in Section D below.
3. REMEDIAL ACTION
9. The United States did not inspect all of Intermountain Hospital’s facility. As noted in Paragraphs 4 and 5 above, the United States only conducted a compliance review of representative aspects of Intermountain Hospital and its findings noted alleged representative violations of the ADA’s physical accessibility Standards. Appendix A identifies these alleged violations.
10. On October 24, 2018, BHC retained an Independent Licensed Architect (“ILA”), Paul A. Joelson, Joelson Vail Associates LLC – an architect who is knowledgeable about the architectural accessibility requirements of the ADA. The ILA will be considered a neutral inspector for purposes of issuing certifications of compliance and will be reasonably available to the United States to discuss findings in the reports, photographs, and certifications. The United States may also, in its discretion, provide technical assistance to the ILA throughout the term of this Agreement. 
11. No later than six months of the effective date of this Agreement, BHC shall conduct a comprehensive survey of Intermountain Hospital.  Thereafter, the parties shall negotiate in good faith any disputes regarding the existence of any non-compliant architectural barriers identified in the surveys conducted by the United States and BHC and whether the elimination of any such barriers is readily achievable
12. No later than twelve months of the effective date of this Agreement and after completion of the survey described in Paragraph 11, BHC shall develop a plan to remove architectural barriers to access and bring BHC’s facilities into compliance with the ADA where it is readily achievable to do so. That plan shall be provided to the United States upon its completion. The remedies described in the plan shall address the non-compliant items identified by the United States in Appendix A and the non-compliant items identified by BHC as a result of the survey conducted pursuant to Paragraph 11.
13. No later than three years of the effective date of this Agreement, BHC shall complete all remedial work identified in its plan described in Paragraph 12. Following completion of the remedial work, the ILA must certify that changes made by BHC during the term of this Agreement comply with the applicable ADA standards pursuant to 28 C.F.R. § 36.304(d)(2) and the Appendix.  In issuing the certification pursuant to this Agreement, BHC, in consultation with the ILA, will impartially prepare reports with photographs identifying that the violation has been remediated and will use the certification form (Attachment 1). 
14. Nothing, however, prevents BHC or its successors or assignees from eliminating or modifying any of the features of Intermountain Hospital, including those referenced in Appendix A or in the survey conducted pursuant to Paragraph 11, provided that all such actions improve access to persons with disabilities or do not decrease accessibility for persons with disabilities.
4. IMPLEMENTATION AND ENFORCEMENT
15. At any time during the effective dates of this Agreement, the United States reserves the right to inspect, with reasonable notice to counsel, Intermountain Hospital.
16. If during the implementation of this Agreement, BHC determines that, due to reasons beyond its control (e.g., substantial and unexpected change in its financial situation, delays caused by third parties, such as consultants, architects or contractors, etc.), it cannot complete work by the dates set forth in this Agreement, BHC may seek a reasonable extension of time to complete the work, and the United States will not unreasonably withhold its consent. 
17. In the event that BHC determines that removal of certain architectural barriers is not readily achievable or BHC desires to modify any portion of this Agreement for the reasons noted immediately above, due to changed conditions making performance impossible or impractical, or for any other reason, it 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. No modification to the Agreement is agreed to unless or until the United States agrees, in writing, to such modification.  Approval will not be unreasonably withheld or delayed.
18. If, based on the reports provided by BHC pursuant to this Agreement or on other information, the United States finds that BHC has failed to comply with the Agreement, the United States agrees to notify BHC in writing of the alleged noncompliance and to attempt to resolve the matter with BHC. 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 to enforce this Agreement in the United States District Court for the District of Idaho. Alternatively, should the parties be unable to reach a resolution within 60 days of the date of the United States’ written notification, the United States may bring an action to enforce compliance with the ADA and its implementing regulation.
19. This Agreement constitutes the entire Agreement between the parties relating to the United States' title III compliance review referenced in Paragraph 1 above, specifically DJ # 202-22-37. This Agreement does not purport to remedy any other potential violations of the ADA or any other federal law.
20. 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 any other deadline or provision of this Agreement.  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 BHC 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 relative rights and obligations to which the parties initially agreed.
21. This Agreement shall be binding on BHC and any successors or assigns. In the event that BHC seeks to transfer or assign Intermountain Hospital, and the successor or assign intends to continue the same or similar use of the facility, as a condition of sale, BHC shall obtain from its successor, assignee or purchaser and provide to the United States the written accession of the successor or assign to any obligations remaining under this Agreement for the remaining term of this Agreement, and upon such transfer or assignment of Intermountain Hospital, BHC’s obligations under this Agreement shall cease. Also, should Intermountain Hospital close or ceases its current operations for any reason, BHC’s obligations under this Agreement shall terminate.
22. The effective date of this Agreement is the date of the last signature below.
23. The person signing for BHC represents that he or she is authorized to bind BHC to this Agreement.
24. This Agreement will terminate three years after the Effective Date.