SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
AND
NORTH FLORIDA OB/GYN ASSOCIATES, P.A.
UNDER THE AMERICANS WITH DISABILITIES ACT
DJ 202-17M-423

BACKGROUND

1. The parties to this Settlement Agreement (“Agreement”) are the United States Department of Justice and North Florida Obstetrical & Gynecological Associates, P.A. (“North Florida”).
2. This matter is based upon a complaint filed with the United States Department of Justice, in which a Complainant alleged that North Florida discriminated against the Complainant on the basis of her disability in violation of title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181, et seq. Specifically, Complainant alleges that North Florida refused to schedule an elective tubal ligation surgery based on her HIV.
3. North Florida denies all claims in the complaint, and specifically, North Florida denies any discriminatory intent.  In an effort to avoid the time and cost involved in litigation, the parties have reached agreement that it is in the parties' best interests, and the United States Department of Justice believes that it is in the public interest, to resolve this dispute.  The parties have therefore voluntarily entered into this Agreement, agreeing as follows:

TITLE III COVERAGE AND FINDINGS

4. The Attorney General is responsible for administering and enforcing title III of the ADA, 42 U.S.C. §§ 12181-12189, and the relevant regulation implementing title III, 28 C.F.R. Part 36.
5. Complainant, an individual with HIV, has a physical impairment that substantially limits one or more major life activities, including the functions of the immune system, which is a major bodily function.  Accordingly, she has a disability within the meaning of 42 U.S.C. § 12102 and 28 C.F.R. § 36.104.
6. North Florida is a medical practice that provides obstetrical and gynecological care in the Jacksonville, Florida area.
7. North Florida has a management agreement with North Florida MSO, LLC, a Florida corporation, with its principal location at 11437 Central Parkway, Suite 105, Jacksonville, Florida 32224.  North Florida operates 47 outpatient locations around Jacksonville and has a network of 73 physicians.
8. North Florida owns, leases (or leases to), or operates a place of public accommodation within the meaning of 42 U.S.C. § 12182(a); is a private entity within the meaning of 42 U.S.C. § 12181(6); and is a place of public accommodation within the meaning of 42 U.S.C. § 12181(7), because it affects commerce and operates a professional office of a health care provider. See also 28 C.F.R. § 36.104.
9. Under title III of the ADA, no person who owns, leases (or leases to), or operates a place of public accommodation may discriminate against an individual on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation. 42 U.S.C. § 12182(a); 28 C.F.R.  § 36.201(a).
10. Ensuring that medical care providers do not discriminate on the basis of disability is an issue of general public importance.  The United States Department of Justice is authorized to investigate alleged violations of title III of the ADA and to bring a civil action in federal court in any case that involves a pattern or practice of discrimination or that raises issues of general public importance. 42 U.S.C. § 12188(b).
11. As a result of its investigation, the United States Department of Justice has determined:
    1. Complainant called North Florida on September 5, 2012, to schedule a “new patient” annual ob/gyn examination.  Complainant specifically requested an appointment with a physician who listed tubal ligation procedures on North Florida’s website among the services performed. The Department of Justice has found that this physician had performed four tubal ligations in the last four years. Complainant disclosed her HIV-positive status during her call to North Florida.
    2. On September 12, 2012, Complainant arrived at North Florida for her “new patient” annual ob/gyn examination.  According to Complainant’s September 12, 2012 intake form, Complainant informed North Florida that she wanted an elective tubal ligation.
    3. Complainant’s completed intake form also stated that she was 30 years old, had two children, and was HIV positive.
    4. The North Florida physician who met Complainant has been a physician with North Florida since 1999.
    5. During the scheduled visit, the North Florida physician’s notes state “Undesired fertility.  Discussed options of pills, patches, Ring, Depo, and IUDs. Patient angry that elective surgical sterilization not offered.  Left without completing physical exam which was offered 3 times.”
    6. In both parties’ accounts of Complainant’s September 12, 2012 appointment, the North Florida physician refused to schedule the tubal ligation because the Complainant has HIV.  The North Florida physician told investigators she concluded that Complainant should not undergo tubal ligation because her HIV status made her too susceptible to opportunistic infections post-operative in the hospital.
12. The United States Department of Justice determined that Complainant is an aggrieved person pursuant to 42 U.S.C. § 12188(b)(2)(B) and North Florida discriminated against Complainant by denying her the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of North Florida on the basis of HIV, in violation of 42 U.S.C. § 12182 and 28 C.F.R. § 36.201.  
13. North Florida denies all claims in the complaint, and specifically, North Florida denies any discriminatory intent.  While North Florida denies liability for any alleged violation of a statute, regulation, or otherwise, the parties agree to undertake the actions set forth below.

ACTIONS TO BE TAKEN BY NORTH FLORIDA

14. North Florida, including its physicians, outpatient health care centers, and other medical facilities, will not discriminate against any individual on the basis of disability, including HIV or AIDS, in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations offered by any of its physicians in violation of title III of the ADA, 42 U.S.C. § 12182, and its implementing regulation, 28 C.F.R. Part 36.
15. Denial of Service Records for Patients with HIV/AIDS. For each current or new patient who requests and is not allowed to schedule a service or procedure, and who discloses or is identified to the North Florida provider as having a diagnosis of HIV or AIDS, North Florida will create an electronic file and will maintain the electronic file for at least two years from the date the final decision is made to not provide the service or procedure.  Each file must include at a minimum:  (i) the person's name, if known, or a unique identifier if the person's name is unknown (i.e., date of call, time of call, person receiving call), (ii) the date of initial contact with the person, (iii) the date the final decision is made to not schedule a service or procedure, (iv) the names and titles of all persons involved in the decision, (v) the reasons for the decision, and (vi) all written documentation supporting the reasons for the decision.  The requirement does not apply if a service or procedure was not scheduled because the North Florida provider was not performing the service or procedure or accepting new patients at the time of the request.  Copies of such files shall be provided to counsel for the United States Department of Justice quarterly as of the effective date of this Agreement.  (i.e., files created in calendar months January, February, and March to be provided by April 30, and so on) throughout the duration of this Agreement and within thirty (30) calendar days of any written request for them.
16. Discharge Records for Patients with HIV/AIDS.  For each person who is discharged from treatment for any reason other than the conclusion of treatment, and who (i) discloses to the North Florida provider a diagnosis of, (ii) is diagnosed by the North Florida provider as having, (iii) is regarded by the North Florida provider as having, or (iv) is otherwise identified by the North Florida provider at or before the time of discharge from treatment as potentially having HIV or AIDS, North Florida will create an electronic file and will maintain the electronic file for at least two years from the date the final decision is made to discharge the patient from treatment other than at the conclusion of the treatment.  Each file must include, at a minimum: (i) the patient's name, if known, or a unique identifier if the patient's name is unknown (i.e., date of call, time of call, person receiving call), (ii) the date of initial contact with the patient, (iii) the date the final decision is made to discharge the patient, (iv) the names and titles of all persons involved in the decision, (v) the reasons for the decision, and (vi) all written documentation supporting the reasons for the decision.  Copies of such files shall be provided to counsel for the United States Department of Justice quarterly, as of the effective date of this Agreement, (i.e., files created in calendar months January, February, and March to be provided by April 30, and so on) throughout the duration of this Agreement and within 21 days of any written request for them.
17. Within twenty-one (21) calendar days of receipt of any written complaint from a patient related to any alleged violation of the ADA based on the patient's HIV/AIDS status, North Florida shall send written notification to counsel for the United States Department of Justice with a copy of any such complaint (or, if an oral complaint was made, a description of the complaint) and a complete copy of North Florida's response.
18. Within thirty (30) calendar days of the effective date of this Agreement, North Florida will submit a draft non-discrimination policy to the United States Department of Justice for its review and approval. The non-discrimination policy will state that it does not discriminate in the provision of services to persons with disabilities, including persons who have HIV or AIDS.  Within twenty-one (21) calendar days of the United States Department of Justice’s approval, North Florida will adopt, maintain, and enforce the non-discrimination policy for the duration of the Agreement.  This policy statement will be conspicuously posted in the reception area of each current and future North Florida outpatient health care center, and other medical facility, and on the company’s main webpage or “homepage,” currently located at http://www.nfobgyn.com, as well as on the homepage of any current of future North Florida website, for the duration of this Agreement.
19. Within ninety (90) calendar days of approval of the training manuals and written training materials, and every year thereafter for the duration of the Agreement, North Florida will provide training on title III of the ADA to all North Florida employees and contractors, including training about HIV/AIDS discrimination in general.  This training can be provided by live sessions and interactive computer-based training.
20. In addition, North Florida will ensure that all new employees and contractors who are involved with admissions or treatment of patients receive the training referenced in paragraph 19 as a component of new employee training and orientation.  North Florida shall provide the training to new employees and contractors within ninety (90) days of their start date.
21. Employees whose duties will involve the record-keeping provisions set forth in paragraphs 15 and 16 shall be trained on how to implement those provisions.
22. Within sixty (60) days of the effective date of the agreement, North Florida will submit, for the United States Department of Justice's review and approval, all training manuals and written materials dealing with North Florida's policies and practices used in the training required in paragraphs 19 and 20; the training manuals and written materials shall be consistent with the provisions of this Agreement and title III of the ADA. 
23. North Florida will submit, for the Department's review and approval, any new training manuals and written materials dealing with North Florida's policies and practices used in the training required in paragraphs 19 and 20 that are revised or created after the effective date of this agreement.  North Florida will submit the training manuals and written materials for the Department's review within sixty (60) days of their revision or creation. 
24. North Florida shall create and maintain an attendance log that documents the name of each individual who attends the training required in paragraphs 18 and 19, his or her title, and the date he or she attended the training.  Copies of such attendance sheets shall be provided to the United States Department of Justice within ten (10) business days of any request for them.
25. Within ten (10) business days of North Florida's receipt of the signed Release of Claims and the IRS Form W-9 completed by Complainant, North Florida will provide the Department of Justice with a check in the amount of Five Thousand and No Cents Dollars ($5,000.00) payable to Complainant as authorized by 42 U.S.C. § 12188(b)(2)(C) and 28 C.F.R. § 36.504(a)(3).  If the $5,000.00 are paid before the end of 2015, Complainant will receive a 1099 in 2016 from North Florida for the money she received in 2015 from North Florida.  If the $5,000.00 are paid before the end of 2016, Complainant will receive a 1099 in 2017 from North Florida for the money she received in 2016 from North Florida.
26. North Florida will notify the United States Department of Justice in writing when it has completed the actions described in paragraphs 14 to 25.  This notification need only be provided when all of North Florida's employed physicians, outpatient health care centers, and other medical facilities, have completed the action required in the relevant paragraph(s).  Notification of North Florida's completion of the training described in paragraphs 19 and 20 will be provided to the United States Department of Justice on an annual basis within sixty (60) calendar days of the end of each calendar year covered by this Agreement.  If any issues arise that affect the anticipated completion dates set forth in paragraphs 14 to 25, North Florida will notify the United States Department of Justice within thirty (30) calendar days of the issue(s), and the parties will attempt to resolve those issues in good faith.

OTHER PROVISIONS

27. In consideration for the Agreement set forth above, the United States Department of Justice will close its investigation of DJ #202-17M-424, and will not institute a civil action alleging discrimination based on the findings set forth in paragraph 11.  However, the United States Department of Justice may review North Florida's compliance with this Agreement or title III of the ADA at any time.  If the United States Department of Justice believes that title III of the ADA, this Agreement, or any portion of it has been violated, it may institute a civil action in the United States District Court for the Middle District of Florida, Jacksonville Division to enforce this Agreement and/or title III of the ADA.
28. Failure by the United States Department of Justice to enforce any provision of this Agreement is not a waiver of its right to enforce any provisions of this Agreement.
29. 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 Department of Justice and North Florida 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 initially agreed upon relative rights and obligations.
30. This Agreement is binding on North Florida, including all principals, agents, executors, administrators, representatives, employees, successors in interest, beneficiaries, and assignees.  In the event that North Florida seeks to sell, transfer, or assign all or part of its interest during the term of this Agreement, as a condition of sale, transfer, or assignment, North Florida will 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.
31. The signatory for North Florida represents that he is authorized to bind North Florida to this Agreement.
32. This Agreement, including Attachment A, constitutes the entire agreement between the United States Department of Justice and North Florida 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.
33. This Agreement does not constitute a finding by the United States Department of Justice that North Florida is in full compliance with the ADA.  This Agreement 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 HIV or AIDS.  Nothing in this Agreement relieves North Florida's obligation to fully comply with the requirements of the ADA.
34. The paragraph headings in this Agreement are for convenience only and will not be deemed to affect in any way the language or meaning of the provisions to which they refer.
35. North Florida shall not discriminate or retaliate against any person because of his or her participation in this matter.

EFFECTIVE DATE/TERMINATION DATE

36. The effective date of this Agreement is the date of the last signature below.
37. The duration of this Agreement will be three (3) years from the effective date.