Press Release

SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA AND
MASSACHUSETTS GENERAL HOSPITAL
UNDER THE AMERICANS WITH DISABILITIES ACT,
DJ # 202-36-304

1. BACKGROUND
1. The parties to this Settlement Agreement are the United States of America and Massachusetts General Hospital (MGH).
2. This matter is based upon a complaint filed with the United States Department of Justice (Department) against MGH.  Complainant alleged that MGH discriminated against him on the basis of disability in violation of Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12181-89.  Specifically, Complainant alleged that MGH denied him eligibility for consideration to be listed for a lung transplant at MGH because he was being treated with Suboxone, which is a prescription medication approved by the U.S. Food and Drug Administration for treating opioid use disorder (OUD).
3. The parties agree that it is in the parties’ best interests, and the United States believes that it is in the public interest, to resolve this dispute.  The parties have therefore voluntarily entered into this Agreement as follows:
2. TITLE III COVERAGE AND DETERMINATIONS
4. The Attorney General of the United States is responsible for enforcing Title III of the ADA, 42 U.S.C. §§ 12181–89, and the regulation implementing Title III, 28 C.F.R. Part 36.
5. MGH is a hospital that provides primary and specialty care.  Partners Healthcare, which owns and operates MGH, is a public accommodation within the meaning of Title III, 42 U.S.C. § 12181(7)(F); 28 C.F.R. § 36.104.  The ADA prohibits public accommodations, including hospitals, 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).
6. Complainant is a person with a disability because he has OUD, a physical or mental impairment that substantially limits one or more major life activities, including the operation of major bodily functions.  28 C.F.R. § 36.105(b)(2) (defining physical or mental impairment to include “drug addiction”).  OUD is a chronic illness that substantially limits major life activities, including caring for oneself, learning, concentrating, thinking, and communicating.  42 U.S.C. § 12102(2)(A).  OUD also substantially limits the operation of major bodily functions, such as neurological and brain functions.  42 U.S.C. § 12102(2)(B).  The determination of whether an impairment substantially limits a major life activity is made without regard to the effect that ameliorating measures, including medication, may have on the impairment.  42 U.S.C. § 12102(4)(E)(i).
7. At the time MGH evaluated him, Complainant was actively participating in a supervised rehabilitation program and was not engaging in the illegal use of drugs.  42 U.S.C. § 12210.  As a central part of Complainant’s treatment for OUD, his medical specialists prescribed Suboxone, a medication containing buprenorphine and naloxone, to treat his opioid dependence.
8. As a result of its investigation, the United States has determined the following:
   1. In March 2017, MGH rejected Complainant for eligibility for consideration to be listed for a lung transplant because he used Suboxone to treat his OUD.
   2. MGH failed to consult addiction or pain specialists before rejecting Complainant, even though its routine practice is to consult with other MGH specialists when it needs more information about a medical condition.
   3. By disqualifying Complainant for transplant consideration because he used Suboxone for OUD and by failing to further evaluate him in accordance with its standard transplant consideration process, which would have included consultation with appropriate specialists, MGH discriminated against Complainant on the basis of disability in the full and equal enjoyment of MGH’s goods, services, facilities, privileges, advantages, or accommodations.  42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a).
   4. By rejecting Complainant because he treated his OUD with Suboxone, MGH imposed eligibility criteria that unnecessarily screened out Complainant. 12182(b)(2)(A)(i); 28 C.F.R. § 36.301(a).
   5. In November 2017, Complainant received a successful lung transplant at the Hospital of the University of Pennsylvania. 
   6. MGH’s rejection of Complainant caused him and his mother considerable financial and emotional distress.  For several months after MGH rejected him, Complainant’s health deteriorated as he lived in fear that he would die without a transplant.  Complainant’s mother, his transplant support person, was required to move from her home, in Massachusetts, to Pennsylvania to be near the transplant hospital for six months following surgery and she could not work during that time period. The distance from home, family and community caused them both considerable emotional distress.
   7. Complainant and his mother are aggrieved persons pursuant to 42 U.S.C. § 12188(b)(2)(B).
3. ACTIONS TO BE TAKEN BY MGH

General Obligations

9. MGH shall comply with the requirements of Title III of the ADA, 42 U.S.C. § 12182, and its implementing regulation, 28 C.F.R. Part 36, including, but not limited to, the following:
1. MGH shall not discriminate on the basis of disability, including OUD, in the full and equal enjoyment of MGH’s goods, services, facilities, privileges, advantages, or accommodations.  42 U.S.C. § 12182(a), 28 C.F.R. § 36.201(a).
2. MGH shall not impose or apply eligibility criteria that screen out, or tend to screen out, an individual with a disability or a class of individuals with disabilities (including OUD) from fully and equally enjoying its goods, services, facilities, privileges, advantages, or accommodations, unless such criteria can be shown to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered.  42 U.S.C. § 12182(b)(2)(A)(i), 28 C.F.R. § 36.301(a).

Non-Discrimination Policies and Procedures

10. Within 30 calendar days of the Effective Date of this Agreement, MGH shall submit a draft non-discrimination policy to the United States for its review and approval stating   that MGH will not impose eligibility criteria that unnecessarily deny or limit treatment for individuals on the basis of disability, including OUD, and those who use medication to treat OUD, or otherwise discriminate on the basis of disability.
11. Within 21 days of approval by the United States, MGH shall adopt and implement the non-discrimination policy and shall disseminate a copy of its new and/or modified policies and practices to all medical staff involved in decisions about transplant.  MGH shall conspicuously post the non-discrimination policy in the reception area of MGH and as a link on the company’s main webpage, currently located at https://www.massgeneral.org/, as well as on the webpage of any future MGH website, for the duration of this Agreement.  Throughout the term of this Agreement, MGH shall disseminate these policies and practices to all new employees within 30 days of their hire.

Training

12. MGH shall provide ADA Training to all medical staff involved in decisions about transplant, within 120 calendar days of the Effective Date of this Agreement.
13. The ADA Training shall address:
1. the requirements of Title III of the ADA, as it applies to individuals with OUD and other diseases of addiction;
2. a general overview of the terms and obligations of this Agreement.
14. The ADA Training shall be conducted by an individual or individuals with substantive knowledge of the ADA and OUD.  The initial ADA Training shall be conducted live, with a group opportunity to pose questions to the individual(s) conducting the training at the conclusion of the training session.  Each subsequent training may be conducted by video recording.
15. MGH shall send to counsel for the United States the name, qualifications (including resume), and contact information of the individual(s) who will conduct the training, no later than 30 calendar days after the Effective Date of this Agreement.  The trainer shall be pre-approved by the United States.
16. For the ADA Training conducted under this Agreement, MGH shall maintain attendance logs reflecting the date of the training, names and titles of attendees, and the attendees’ signatures. 

Reporting

17. Initial Report: Within 120 calendar days following the Effective Date of this Agreement, MGH shall submit a report to the United States confirming its implementation of the policies referenced in Paragraphs 10-11 (“Non-Discrimination Policies and Procedures”) as well as its fulfillment of the requirements of Paragraph 9 (“General Obligations”) and Paragraphs 12-16 (“Training”).  MGH shall provide the Department with the attendance logs maintained for the ADA Training under Paragraph 16.
18. Regular Reports: For the Term of this Agreement, each year, thirty days prior to the anniversary of the Effective Date of the Agreement, MGH shall submit a Report to the Department regarding its compliance with this Agreement.  The Report shall include, for the period since the prior report to the Department, the following:
1. All dates of MGH’s ADA Training conducted pursuant to this Agreement;
2. All attendance logs associated with the ADA Training conducted pursuant to this Agreement; and
3. MGH’s continued fulfillment of the obligations of Paragraph 9 (“General Obligations”), Paragraphs 10-11 (“Non-Discrimination Policies and Procedures”) and Paragraphs 12-16 (“Training”).

Monetary Relief

19. Within ten (10) days of the Effective Date of this Agreement, MGH will offer Complainant a total monetary award of one hundred and seventy thousand dollars ($170,000.00). Within ten (10) days after receiving Complainant’s signed release (attached as Exhibit A), MGH shall send a check in the amount of one hundred and seventy thousand dollars ($170,000.00) made out to Complainant to compensate Complainant for his emotional distress and out of pocket expenses.  MGH shall provide written notification to counsel for the United States, including a copy of the check, within seven (7) days of completing the actions described in this paragraph.
20. Within ten (10) days of the Effective Date of this Agreement, MGH will offer Complainant’s mother a total monetary award of eighty thousand dollars ($80,000.00). Within ten (10) days after receiving Complainant’s mother’s signed release (comparable to the release attached as Exhibit A), MGH shall send a check in the amount of eighty thousand dollars ($80,000.00) made out to Complainant’s mother for her emotional distress and out of pocket expenses.  MGH shall provide written notification to counsel for the United States, including a copy of the check, within seven (7) days of completing the actions described in this paragraph.
4. OTHER PROVISIONS
21. In consideration for this Agreement, the United States shall close its investigation of DJ # 202-36-304, USAO #2018V00095, and shall not institute a civil action at this time alleging discrimination by MGH based on the determinations set forth in Paragraph 8.  The United States may review MGH’s compliance with this Agreement and/or Title III of the ADA at any time.  If the United States believes that this Agreement or any portion of it has been violated, it will raise its concerns with MGH and the parties will attempt to resolve the concerns in good faith.  If the parties are unable to reach a satisfactory resolution of the issue within thirty (30) days of the date the United States provides notice to MGH, the United States may institute a civil action in an appropriate Federal District Court to enforce this Agreement or the ADA.
22. All reports required pursuant to this Agreement shall be delivered to the undersigned counsel by email.
23. Failure by the United States to enforce any provision of this Agreement is not a waiver of its right to enforce any provision of this Agreement.
24. If any term of this 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 United States and MGH shall engage in good faith negotiations to adopt mutually agreeable amendments to this Agreement as may be necessary to restore the parties as closely as possible to the initially agreed upon relative rights and obligations.
25. This Agreement is binding on MGH, including all principals, agents, executors, administrators, representatives, employees, and beneficiaries.  In the event that MGH seeks to sell, transfer, or assign substantially all of its assets or a controlling membership position in MGH during the term of this Agreement, then, as a condition of such sale, transfer, or assignment, MGH shall obtain the written agreement of the successor, buyer, transferee, or assignee to all obligations remaining under this Agreement for the remaining term of this Agreement.
26. The signatory for MGH represents that he or she is authorized to bind MGH to this Agreement.
27. This Agreement constitutes the entire agreement between the United States and MGH on the matters raised herein, and no prior or contemporaneous statement, promise, or agreement, either written or oral, made by any party or agents of any party, that is not contained in this written agreement, including any attachments, is enforceable.  This Agreement can only be modified by mutual written agreement of the parties.
28. This Agreement is intended to remedy the allegations described in paragraph 2, and is not intended to remedy any other potential violations of the ADA or any other law that is not specifically addressed in this Agreement, including any other claims for discrimination on the basis of disability.  Nothing in this Agreement relieves MGH of its obligation to fully comply with the requirements of the ADA.
5. EFFECTIVE DATE/TERMINATION DATE
29. The Effective Date of this Agreement is the date of the last signature below.
30. The duration of this Agreement will be two years from the Effective Date.

By their signatures below, the Parties consent to the execution of all aspects of this Agreement.