SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA AND
LINCARE INC
U.S. DEPARTMENT OF JUSTICE DJ # 202-79-337

BACKGROUND

1. The parties (“Parties”) to this Settlement Agreement (“Agreement”) are the United States of America (“United States”) and Lincare Inc. (“Lincare”), a supplier of oxygen, durable medical equipment and other respiratory care products and related services such as nebulizers, and sleep and enteral therapy.  Lincare operates approximately 800 centers in all states, except Alaska and Hawaii.  Lincare personnel make home visits and visits to other locations where medical equipment procured from Lincare is being used.  Lincare’s services to support its customers are available 24 hours, seven days a week by calling a local phone number.
2. This matter was initiated by a complaint filed with the United States against Lincare, alleging violations of title III of the Americans with Disabilities Act of 1990, as amended (the “ADA”), 42 U.S.C. §§ 12181-12189, and its implementing regulation, 28 C.F.R. Part 36.  Specifically, Complainant S.W. (the “Complainant”), who is deaf, alleged that Lincare personnel failed to provide qualified sign language interpreter services during an appointment in which she was renting a Continuous Positive Airway Pressure device (“CPAP”).
3. Complainant S.W. is deaf and uses American Sign Language (“ASL”) as her primary means of communication.

INVESTIGATION AND DETERMINATIONS

4. The United States Attorney for the Eastern District of Virginia (“U.S. Attorney’s Office”) is authorized under 42 U.S.C. § 12188 and 28 C.F.R. Part 36, Subpart E, to investigate the allegations of the complaint in this matter to determine Lincare’s compliance with title III of the ADA. Title III of the ADA authorizes the United States to investigate alleged violations, to use alternative means of dispute resolution, where appropriate, including settlement negotiations to resolve disputes, and, if necessary, 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. 
5. Complainant is deaf and as such is an individual with a “disability” within the meaning of the ADA. 42 U.S. C. § 12102; 28 C.F.R. § 36.105.
6. Lincare is a private entity that owns, operates, leases or leases to a place of public accommodation, e.g., a sales or rental establishment, professional office of a health care provider, or other service establishment.  42 U.S.C.  §§ 12181(7)(E), (F); 28 C.F.R. § 36.104.  Specifically, Lincare is a corporation that supplies oxygen, durable medical equipment, and respiratory care products and services for patients in the home and in alternative site care facilities.  Lincare is thus a “public accommodation” within the meaning of title III of the ADA. 42 U.S.C. § 12181(7)(F); 28 C.F.R. § 36.104.
7. Title III of the ADA prohibits discrimination on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a public accommodation.  42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a).
8. On the basis of its investigation, the U.S. Attorney’s Office determined that Lincare denied S.W.’s request for appropriate auxiliary aids and services necessary for effective communication during an appointment in which she was renting a CPAP device in violation of 42 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303. 
9. Lincare denies these allegations and does not admit liability for any wrongdoing by entering into this Agreement.
10. The Parties have determined that the complaint filed with the United States can be resolved without litigation and have agreed to resolve the dispute pursuant to the terms of this Agreement.

DEFINITIONS

11. 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 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).
12.  The term “Lincare Personnel” means any person employed by Lincare whose job responsibilities require interaction with Lincare patients, including, without limitation, health care specialists, respiratory therapists, nurses, doctors, technicians, physician’s or nurse’s assistants, nurse practitioners, office managers, customer service representatives, administrative assistants, secretaries, receptionists, and other clerical staff.
13. The term “Lincare Center” means all locations owned, operated or leased by Lincare that provide services and/or products to the public.
14. 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.
15. The term “Patient” shall be broadly construed to include any individual who is seeking or receiving the goods, services, facilities, privileges, advantages, or accommodations of Lincare.
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.  28 C.F.R. § 36.303(c)(1)(i).
17. "Patient medical files, records or charts” means the medical files and related records for an individual patient, including both the paper and electronic records.
18. The term “Effective Date shall mean the date of the last signature below.

EQUITABLE RELIEF

1. Prohibition of Discrimination
19. Lincare shall provide appropriate auxiliary aids and services, including qualified interpreters, where such aids and services are necessary to ensure effective communication with Patients and Companions who are deaf or hard of hearing.  Pursuant to 42 U.S.C. § 12182(a), Lincare shall also provide Patients and Companions, who are deaf or hard of hearing, with the full and equal enjoyment of its services, privileges, facilities, advantages, and accommodations as required by this Agreement and the ADA.
20.  Lincare shall not deny equal services, accommodations, or other opportunities to any individual because of the known relationship of that person with someone who is deaf or hard of hearing.  See 42 U.S.C. § 12182(b)(1)(E).
21. Lincare 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. ADA Administrator
22. Lincare will designate one or more employees to serve as an ADA Administrator or  Co-Administrator, and at least one such employee will always be on call and available 24 hours a day and seven days a week to answer questions and provide appropriate assistance regarding access to, and proper use of, the appropriate auxiliary aids and services, including qualified interpreters.  The ADA Administrator or ADA Co-Administrators will understand Lincare’s obligations pursuant to the ADA and be a resource to other Lincare personnel and Lincare customers.  Lincare will circulate and post broadly within the Lincare organization the name, telephone number, email address, function, and office location of the Administrator(s), through which the ADA Administrator or Co-Administrator on duty can be contacted during normal business hours by Patients and Companions who are deaf or hard of hearing. The ADA Administrator or Co-Administrators will be responsible for the complaint resolution mechanism described in paragraph 23 of this Agreement.  The ADA Administrator or Co-Administrators will be designated by Lincare no later than 30 days following execution of this Agreement.  Lincare will notify DOJ of the identity of the ADA Administrator and Co-Administrators.
3. Grievances
23. Lincare has established a grievance resolution mechanism for the investigation of disputes with patients, including disputes regarding effective communication with Patients and Companions who are deaf or hard of hearing.  Lincare will maintain records of all such grievances regarding effective communication with a Patient or Companion who is deaf or hard of hearing that cannot be resolved at the center level in the ordinary course of business and where the Patient has followed the steps laid out in the complaint process, whether oral or written, made to Lincare (“Grievance”) and actions taken with respect thereto.  After Lincare completes its assessment described in paragraph 25 and advises the Patient and/or Companion of its determination of which appropriate auxiliary aids and services are necessary, at the time of the initial appointment Lincare will notify individuals who are deaf or hard of hearing of its grievance resolution mechanism, to whom complaints should be made, and of the right to receive a written response to the Grievance.  Within five calendar days of receiving a complaint, Lincare will notify the customer that the complaint has been received and that it is being investigated. Within fourteen calendar days, Lincare will provide a written response to the complaint or will explain the reason for any needed extension. Copies of all Grievances related to provision of services for Patients or Companions who are deaf or hard of hearing and the responses thereto will be maintained by the ADA Administrator for the entire duration of the Agreement, and will be incorporated into the annual Compliance Reports as described in paragraph 46 of this Agreement.
4. Effective Communication
24. Pursuant to 42 U.S.C. § 12182(b)(2)(A)(iii), Lincare 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 paragraphs 25 & 26 of this Agreement. Appropriate auxiliary aids and services will be provided as soon as practicable (without compromising patient care).  Lincare will advise Patients and Companions who require auxiliary aids or services that these are available throughout the patient’s interactions with Lincare personnel.
25. Lincare personnel will assess a patient’s need for auxiliary aids or services during the initial phone call with the patient to schedule the initial appointment and will document the results in the patient’s medical record housed on Lincare’s internal computer system.  The determination of appropriate auxiliary aids or services, and the timing, duration, and frequency with which they will be provided, will be made by Lincare personnel in consultation with the person with a disability.  The assessment made by the Lincare personnel will take into account all relevant facts and circumstances, including, for example, the individual’s communication skills and knowledge, and the nature and complexity of the communication at issue.  The medical chart will be noted with the selected auxiliary aid.  If a patient identifies a Companion who is deaf or hard of hearing and who is not part of the appointment scheduling process but is expected at Lincare during the patient’s interactions with Lincare, Lincare Personnel shall provide the patient with the contact information of the Lincare Personnel who can assist the Companion in advance of interacting with Lincare.  If at any point during a patient’s interactions with Lincare, a companion identifies himself or herself as deaf or hard of hearing, Lincare shall promptly address their communication needs.
26. The determination of which appropriate auxiliary aids and services are necessary, and the timing, duration, and frequency with which they will be provided, must be made at the time Lincare learns that a deaf or hard of hearing Patient or Companion will be using its services or on the arrival of the deaf or hard of hearing Patient or Companion at Lincare, whichever is earlier.  In the event that communication is not effective, Lincare Personnel will reassess which appropriate auxiliary aids and services are necessary, in consultation with the person with a disability, where possible, and provide such aid or service based on the reassessment.
27. The patient’s electronic medical record shall be conspicuously marked to alert Lincare Personnel to the fact that the Patient and/or Companion is deaf or hard of hearing.  The chart shall indicate the mode of communication selected for the Patient and/or Companion. To the extent the mode of communication provided to the Patient and/or Companion generates a record, Lincare shall keep copies of those records for the pendency of this agreement.
28. If a Patient or a Companion has an ongoing relationship with Lincare, with respect to each of these subsequent interactions, depending upon the complexity and nature of the communication, Lincare will continue to provide the appropriate auxiliary aids or services to the Patient or Companion without requiring a request for the appropriate auxiliary aids or services by the Patient or Companion for each visit consistent with the requirements of the ADA.   To the extent the mode of communication provided to the Patient and/or Companion generates a record, Lincare shall keep copies of those records for the pendency of this agreement.
29. If a Patient and/or Companion does not request auxiliary aids or services, but Lincare has reason to believe that such person would benefit from auxiliary aids or services, Lincare will specifically inform the Patient and/or Companion that auxiliary aids and services are available free of charge. 
30. Lincare will maintain a log in which it keeps copies of requests for auxiliary aids and services, including qualified interpreters on site or through video remote services.  The log will document 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, and the name of the Lincare personnel who conducted the assessment and made the determination.  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 may consist of a compilation of electronic and paper records Lincare maintains pursuant to this agreement and does not require the maintenance of an actual log in which information is kept.
31. All appropriate auxiliary aids and services required by this Agreement will be provided free of charge to the deaf or hard of hearing Patient and/or Companion.
32. Lincare will take appropriate steps to ensure that all necessary Lincare Personnel are made aware of a Patient or Companion’s disability and auxiliary aid and services needed so that effective communication with such person will be achieved.  These steps will include designating this information in the electronic medical record.  
5. Qualified Interpreters
33. Depending on the complexity and nature of the communication, a qualified interpreter may be necessary to ensure effective communication for patients and companions.  When an interpreter is needed, Lincare shall provide qualified sign language interpreters 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 is sufficiently lengthy or complex so as to require an interpreter include the following:
1. Discussing a patient’s symptoms and medical condition, medications, and medical history;
2. Explaining medical equipment options;
3. Discussing medical treatment options;
4. Communicating with a patient during treatment;
5. Providing instructions for medications, post-treatment activities, and follow-up treatments;
6. Discussing the operation, care, maintenance and troubleshooting of medical equipment;
7. Discussing the warranty for medical equipment;
8. Discussing billing and insurance matters; and
9. Discussion of powers of attorney or other healthcare proxy issues.

Lincare has provided information to its Personnel on how they can access auxiliary aid and service providers and the internal process for ordering such services. 

34.     Lincare has submitted to the United States Attorney’s Office the email sent to each Lincare Center instructing the Center on how to access auxiliary aid and service providers, including but not limited to sign language interpreter services, and that its personnel have been provided with information on the process for ordering such services.
35. VRI can provide immediate, effective access to interpreting services in a variety of situations including emergencies and unplanned incidents.  If using VRI services, Lincare shall ensure that it 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; (3) A clear, audible transmission of voices; and (4) Adequate training 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 due, for example, to a patient’s limited ability to move his or her head, hands or arms; vision or cognitive issues; or significant pain; or due to space limitations in the room.  If, based on the circumstances, VRI is not providing effective communication after it has been provided or is not available due to circumstances outside of Lincare’s control, VRI shall not be used as a substitute for an on-site interpreter, and an on-site interpreter shall be provided promptly.  Further, if the VRI device is not functioning properly and Lincare’s staff is unable to get the VRI device to function properly within 30 minutes of when it started to malfunction, it will call for an on-site interpreter.
36. In instances where auxiliary aids and services are necessary for effective communication in connection with Lincare’s goods or service, Lincare 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.  Lincare 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. This provision shall not be read to impose any record keeping or reporting obligations not otherwise required by law or by this Agreement.
37. If a patient and/or companion indicates to Lincare Personnel that he or she wants an interpreter after failing to request one, Lincare Personnel shall then comply with the requirements of paragraphs 24 and 25 as if the patient or companion had originally requested an interpreter.  The updated responses shall be kept in the patient’s medical chart. 
6. Notice to Community
38. Lincare has posted notices of conspicuous size and print at all Lincare waiting areas and wherever a Patient’s Bill of Rights is required by law to be posted.  This notice is attached hereto as Exhibit A.  Additionally, Lincare will provide such notice to each patient during the initial set up.
39. Website.  Lincare will include on its website the notice described in Paragraph 38, above, and the first name, telephone number and email address for Lincare’s ADA Administrator. 
7. Notice to Lincare Personnel
38. Lincare has sent an internal communication memorandum to its personnel that includes a policy statement regarding the Lincare’s policy for effective communication with persons who are deaf or hard of hearing.  This policy statement is attached as Exhibit B.
39. Lincare has circulated this internal communication memorandum to all Lincare Personnel, and will provide the internal communication memorandum to all new Lincare Personnel within thirty (30) days of the start of and newly employed or affiliated physicians upon their affiliation or employment with Lincare.  Lincare has provided to the United States Attorney’s Office a copy of the email communication documenting compliance with this requirement. 
8. Training
42. Lincare will provide mandatory ADA training for all Lincare Personnel within sixty (60) days of the Effective Date, and will be conducted annually thereafter during the term of the agreement.  Such training will 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, including patients and their companions;
3. Lincare’s policies and procedures for assessing an individual with disability’s needs for auxiliary aids and services;
4. recommended and required charting procedures governing requests for auxiliary aids and services;
5. types of auxiliary aids and services available at Lincare and how to secure them in a timely manner;
6. the proper use and role of qualified interpreters;
7. criteria to be used in order to select an interpreter who is qualified;
8. the proper use and role of video remote interpreting services;
9. the identity, role, and contact information for Lincare’s ADA Administrator;the existence of Lincare’s grievance procedure for ADA Complaints; and
10. Lincare’s reporting requirements under the settlement agreement and Lincare employees’ responsibilities for meeting those requirements.
43. Lincare has engaged the Southeast ADA Center to prepare a training module for the training described in paragraph 42 of this Agreement, which is attached hereto as Exhibit C.  Lincare may videotape the training conducted in one location for distribution to its centers nationwide.
44. Lincare will maintain for the duration of this Agreement, confirmation of annual training conducted pursuant to paragraph 42 of this Agreement, which will include the names and respective job titles of the attendees, as well as the date of the training session. 
9. Reporting, Monitoring, and Violations
45. Lincare has provided to the United States, a copy of its policy, the ADA training slides and copies of the photographs of the notices posted in its offices pursuant to this Agreement.  Within one hundred twenty (120) days of the effective date of this Agreement, Lincare will provide the United States with a list of employees who completed the training.  The list of employees will be kept by the Southeast ADA Center.
46. At the six month, twelve month, and twenty-four month point beginning after the Effective Date, Lincare will provide a written report (“Compliance Report”) to the U.S. Attorney’s Office regarding the status of its compliance with this Agreement.  The Compliance Report will include data relevant to the Agreement, including but not limited to:
1. A list of auxiliary aid providers used; and,
2. the number of complaints received by Lincare 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.

Lincare will maintain records to document the information contained in the Compliance Reports and will make them available, upon request, to the U.S. Attorney’s Office.

47. During the term of this Agreement, Lincare will notify the U.S. Attorney’s Office if any person files a lawsuit, complaint or formal charge with a state or federal agency, alleging that Lincare failed to provide auxiliary aids and services to deaf or hard of hearing Patients or Companions or otherwise failed to provide effective communication with such Patients or Companions.  Such notification must be provided in writing via certified mail within twenty (20) days of the date Lincare received notice of the allegation and will include, at a minimum, the nature of the allegation and the name and contact information of the person making the allegation.  Lincare will reference this provision of the Agreement in the notification to the U.S. Attorney’s Office.
10. Compensatory Relief for Complainants and Release
48. Within ten (10) days after receiving the complainant’s signed release (a blank release form is at Exhibit D), Lincare will send a check in the amount of ten thousand ($10,000) dollars made out to Complainant S.W. (using her real name).  This check is to compensate the Complainant pursuant to 42 U.S.C. § 12188(b)(2)(B), for the effects of the alleged discrimination suffered as described in paragraph 2. 

    The check shall be mailed to:
    Financial Litigation Unit
    United States Attorney’s Office for
    Eastern District of Virginia
    101 W. Main Street #8000
    Norfolk, VA  23510

    A copy of the check shall be sent to:
    Steven Gordon
    Assistant United States Attorney
    2100 Jamieson Avenue
    Alexandria, VA 22314

11. Payment of Civil Penalty to the United States
49. Within ten (10) days of the Effective Date of this Agreement, the Lincare will pay to the United States of America the sum of ten thousand ($10,000.00) dollars pursuant to 42 U.S.C. §12188(b)(2)(C).  The check shall be mailed to:

    Financial Litigation Unit
    United States Attorney’s Office for
    Eastern District of Virginia
    101 W. Main Street #8000
    Norfolk, VA  23510

    A copy of the check shall be sent to:

    Steven Gordon
    Assistant United States Attorney
    2100 Jamieson Avenue
    Alexandria, VA 22314

12. Enforcement and Miscellaneous
50. This Agreement will be in effect for two (2) years from the Effective Date.
51. This Agreement does not affect Lincare’s continuing responsibility to comply with all applicable aspects of title III of the ADA.
52. A copy of this document or any information contained in it will be made available to any person by the United States on request.
53. In consideration of the terms of this Agreement as set forth above, the Attorney General agrees to refrain from undertaking further investigation or from filing a civil suit under title III of the ADA related to the allegations in paragraph 2, except as provided in paragraph 54.  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 Lincare for violations of 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.
54. 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 material requirement thereof has been violated by instituting a civil action in the U.S. District Court.  If the United States believes that this Agreement or any material portion of it has been violated, it will raise its claim(s) in writing with Lincare, and the parties will attempt to resolve the concern(s) in good faith.  The United States will allow Lincare at least thirty days from the date it notifies Lincare 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.
55. This Agreement and the attachments hereto 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.
56. This Agreement is final and binding on the parties, including all principals, agents, executors, administrators, representatives, successors in interest of substantially all of the assets of a party, beneficiaries, assigns, heirs and legal representatives thereof.  Each party has a duty to so inform any such successor in interest.
57. Failure by any party 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 regard to other instances or provisions.
58. The signer of this document, in a representative capacity for Lincare, represents that he or she is authorized to bind Lincare to this Agreement.
59. 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.