SETTLEMENT AGREEMENT
BETWEEN THE UNITED STATES OF AMERICA
AND O.C. MEDICAL AESTHETICS, INC.
UNDER THE AMERICANS WITH DISABILITIES ACT

BACKGROUND

1. The parties to this Settlement Agreement (“Agreement”) are the United States of America and O.C. Medical Aesthetics, Inc. d/b/a South Coast MedSpa (“MedSpa”).
2. This matter was initiated by USAO No. 2018V00196, DJ No. 202-12C-640, a complaint received by the United States Department of Justice. Specifically, the Complainant alleged that MedSpa refused to provide laser hair removal services because he has HIV. The United States Attorney’s Office for the Central District of California (“USAO”) conducted an investigation under the authority granted by the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12188(b).
3. The United States and MedSpa have reached an agreement that is in the parties’ best interests, and that the United States believes is in the public interest, to resolve this matter on mutually agreeable terms. The parties have therefore voluntarily entered into this Settlement Agreement, as set forth below.

TITLE III COVERAGE AND DETERMINATIONS

4. The Department of Justice is responsible for enforcing Title III of the ADA, 42 U.S.C. §§ 12181–89, and the relevant regulations implementing Title III, 28 C.F.R. Part 36.
5. The 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, he has a disability within the meaning of 42 U.S.C. § 12102 and 28 C.F.R. § 36.105(c)(2)(iii)(J).
6. O.C. Medical Aesthetics, Inc. is a California corporation with its principal place of business in Newport Beach, California. MedSpa has three locations. One location is located at 2901 West Coast Highway, Suite 150, Newport Beach, California 92663. A second location is located at 11645 Wilshire Boulevard, Suite 1120, Los Angeles, California 90025. Its third location is located at 4910 Directors Place, Suite 310, San Diego, California 92121. MedSpa provides cosmetic medical procedures, such as laser hair removal, and it is a professional office of a health care provider or other service establishment and a “public accommodation” under Title III of the ADA. 42 U.S.C. § 12181(7)(F).
7. 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).
8. Under Title III of the ADA, a public accommodation shall not impose eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any 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). A public accommodation may impose legitimate safety requirements that are necessary for safe operation; such safety requirements must be based on actual risk and not on mere speculation, stereotypes, or generalizations about individuals with disabilities. 28 C.F.R. § 36.301(b).
9. Ensuring that health care providers do not discriminate on the basis of disability is an issue of general public importance. The United States 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 an issue of general public importance. 42 U.S.C. § 12188(b).
10. As a result of its investigation, the United States has determined the following:
1. On December 5, 2017, the Complainant went to MedSpa’s Newport Beach location for a consultation for laser hair removal services. He informed a MedSpa physician assistant that he has HIV, an undetectable viral load, and a CD4 count of 316. The physician assistant informed the Complainant that it was possible that MedSpa would not treat him due to his CD4 count, and she asked for a letter from his doctor that he could undergo laser hair removal treatment.
2. On December 5, 2017, the Complainant provided a letter from his doctor, an infectious disease specialist. The letter stated that the complainant’s HIV was well-controlled and presented “no contraindication to undergoing laser hair removal treatment.”
3. The physician assistant separately emailed two MedSpa doctors, asking them if Complainant could receive laser hair removal treatment and informing them about the Complainant’s undetectable viral load, CD4 count of 316, and clearance letter from his treating doctor for the procedure. One doctor approved the laser hair removal treatment. However, the other doctor—with whom the physician assistant had a delegation of services agreement and therefore was her supervising doctor—determined that the Complainant could not be treated.
4. In a December 28, 2017 email, MedSpa informed the Complainant, that, due to his CD4 count, “we will not be able to treat you while maintaining the level of safety we would like for our patients.” The Complainant did not receive any treatment from MedSpa.
5. At the time that the USAO conducted its investigation, MedSpa’s policy was that a person with HIV could only receive laser treatment if that person either has (1) a CD4 count of 500 or above or (2) a CD4 count of 400 or above for two years and a doctor’s letter clearing that person for treatment. According to MedSpa’s medical director—an emergency medicine doctor who did not specialize in cosmetic procedures—he created the policy because, based on his research, “some normal values for CD4 can be as low as 400 in uninfected individuals.” In researching this policy, the medical director only compared the CD4 levels in persons with and without HIV/AIDS. However, his research did not consider actual risks associated with persons with HIV/AIDS undergoing cosmetic laser hair removal procedures, nor did his research consider whether a CD4 count of below 400 was an actual risk for receiving the treatments MedSpa offered.
6. Additionally, at the time that the USAO conducted its investigation, MedSpa had policies that set thresholds for persons with other conditions that it determined were contraindications for treatment, such as diabetes and hypertension.
7. According to MedSpa, it created the above described policies and practices, including blanket cutoffs for individuals with certain health conditions, described in Paragraphs 10e. and 10f. because it provides elective cosmetic procedures and does not want to patients to have an increased risk of infection or a bad outcome.
11. The United States has determined that MedSpa imposes eligibility criteria that screen out or tend to screen out individuals with disabilities from fully and equally enjoying its goods, services, facilities, privileges, advantages, or accommodations. The United States has also determined that—for many conditions that MedSpa deemed contraindications and imposed specific thresholds that persons needed to meet in order to receive treatment, such as a CD4 count of 400 for two years for persons with HIV/AIDS—MedSpa could not articulate the actual risk that not meeting the specific threshold would impose and instead based these thresholds on speculation, stereotypes, or generalizations. Accordingly, the United States has determined that MedSpa discriminated against the Complainant by denying him the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of MedSpa on the basis of HIV, in violation of 42 U.S.C. § 12182 and 28 C.F.R. §§ 36.201, 36.301.
12. MedSpa disputes the determination of the United States and contends it did not discriminate against the patient. This Agreement is neither an admission of liability by MedSpa nor a concession by the United States that its claims are not well-founded. By entering into this Agreement, MedSpa does not admit the allegations above, or to any violation of law, liability, fault, misconduct, or wrongdoing in connection with those allegations.
13. MedSpa cooperated with the investigation.

ACTIONS TO BE TAKEN BY O.C. MEDICAL AESTHETICS, INC.

14. MedSpa shall 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 at any of its current or future locations, in violation of Title III of the ADA, 42 U.S.C. § 12182, and its implementing regulation, 28 C.F.R. Part 36.
15. MedSpa agrees not to apply eligibility criteria that screen out or tend to screen out individuals with disabilities. MedSpa may impose legitimate safety requirements that are necessary for safe operation; such requirements must be based on actual risks and not on mere speculation, stereotypes, or generalizations about persons with disabilities, including persons with HIV or AIDS.
16. Within 30 days of the effective date of this Agreement, MedSpa will submit a draft non-discrimination policy to the United States for its review and approval. The non-discrimination policy will state that MedSpa does not discriminate in the provision of services to persons with disabilities, including persons with disabilities who have HIV, AIDS, diabetes, other conditions, or physical or mental impairments. Once that policy has been approved by the United States, MedSpa will adopt, maintain, and enforce the non-discrimination policy for the duration of this Agreement. A link to this policy will be posted on the homepage of MedSpa’s website, currently located at www.southcoastmedspa.com, as well as on the homepage of any current or future MedSpa website, for the duration of this Agreement.
17. Within 90 days of the effective date of this Agreement, MedSpa will submit to the United States for its review and approval MedSpa’s policy regarding those medical conditions that it considers to be a contraindication for treatment(s) at its facilities. That policy will include MedSpa’s individualized assessment process that will be based on reasonable judgment that relies on current medical knowledge or that relies on the best available objective evidence when determining whether a particular person who has such condition is eligible for the requested treatment.
18. MedSpa shall ensure that any eligibility criteria or safety requirements that it determines are necessary for its services are based on actual risks and not mere speculation, stereotypes, or generalizations. MedSpa shall preserve copies of records documenting any instance where it denies eligibility based on a condition or impairment that could consist a disability.
19. Within 180 days of the effective date of this Agreement, MedSpa will provide training on Title III of the ADA, including training about HIV/AIDS, disability discrimination, and its policies adopted pursuant to Paragraphs 16–18, to all MedSpa, physician assistants, nurses, and employees.
20. MedSpa will ensure that all new employees, physicians, physician assistants, and nurses receive the training referenced in Paragraph 19 as a component of new employee training and orientation. MedSpa shall provide the training to new employees, physicians, physician assistants, and nurses within 30 days of their start date.
21. All training manuals or written materials concerning MedSpa’s policies and practices used in the training required in Paragraphs 19–20 or revised or created after the effective date of this Agreement shall be consistent with the provisions of this Agreement and approved in advance by counsel for the United States.
22. MedSpa will create and maintain an attendance log that documents the name of each individual who attends the trainings required in Paragraphs 19–20, his or her title, and the date he or she attended the training. MedSpa shall provide copies of the attendance sheets to the United States within 10 days of any request for them.
23. For each potential client who is not accepted as a patient because of his or her contraindication or disability, including but not limited to HIV or AIDS, MedSpa will document, at 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. This requirement does not apply if a service or procedure was not scheduled because MedSpa was not performing the service or procedure or not accepting new patients at the time of the request.
24. Every 12 months, for the duration of this Agreement, MedSpa will provide the United States written reports describing the activities MedSpa has taken to comply with Paragraphs 14–23 of this Agreement, including the documentation created pursuant to Paragraph 23. Upon request, MedSpa will provide the United States all documentation underlying or related to the MedSpa’s written reports. MedSpa shall send its written reports via electronic mail to the United States (to the attention of acrivi.coromelas@usdoj.gov or other person specified by the United States) or via Federal Express to:

    Acrivi Coromelas
    Assistant U.S. Attorney
    Civil Rights Section, Civil Division
    United States Attorney’s Office
    300 Los Angeles Street, Rm. 7516
    Los Angeles, CA 90012

25. During the duration of this Agreement, MedSpa will notify the United States if any individual brings any lawsuit, complaint, charge, or grievance alleging that MedSpa engaged in disability-based discrimination or denied its services to any individual with a disability. Such notification must be provided in writing within 15 days from when MedSpa received oral or written notice of the allegation and will include, at a minimum, the nature of the allegation, the name of the individual making the allegation, and any documentation possessed by MedSpa or any of its employees or staff relevant to the allegation.

MONETARY RELIEF FOR COMPLAINANT

26. MedSpa shall pay a total of $12,000 to Complainant, in a total of six payments described below, to compensate him as authorized by 42 U.S.C. 12188(b)(2)(B); 28 C.F.R. § 36.504(a)(2):
1. Beginning on or before February 15, 2020, MedSpa will make payments towards the monetary relief for Complainant in consecutive monthly installments paid on or by the 15th day of every month in the amount of $2,000.
2. Each payment shall be made by cashier’s check or money order made payable to Complainant (in his legal name) and delivered to counsel for the United States.
3. A payment will be considered delinquent if it is more than 15 days late.
27. Within 15 days of the effective date of this Agreement, the United States Attorney’s Office will deliver to MedSpa a release signed by the Complainant. The release is attached hereto as Exhibit A.
28. MedSpa shall pay a total of $6,000 to the United States, in a total of three payments described below, as a civil penalty and to vindicate the public interest, pursuant to 42 U.S.C. § 12188(b)(2)(C)(i):
1. Beginning on or before August 15, 2020, MedSpa will make payments towards the civil penalty in consecutive monthly installments paid on or by the 15th day of every month in the amount of $2,000.
2. Each payment shall be made by cashier’s check or money order made payable to the United States Treasury and delivered to counsel for the United States.
3. A payment will be considered delinquent if it is more than 15 days late.

IMPLEMENTATION

29. In consideration for entering this Agreement, the United States will refrain from undertaking further enforcement action relating to this investigation. However, the United States may review MedSpa’s compliance with this Agreement or Title III of the ADA at any time. If the United States believes that any portion of this Agreement or Title III of the ADA has been violated, it may institute a civil action in the appropriate U.S. District Court to enforce Title III of the ADA, following written notice to MedSpa of the possible violation and a period of 21 days in which MedSpa has the opportunity to cure the alleged violation.
30. Failure by the United States to enforce any provisions in this Agreement is not a waiver of its right to enforce other provisions of this Agreement.
31. 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 MedSpa 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.
32. This Agreement is binding on MedSpa, including all principals, agents, executors, administrators, representatives, employees, successors in interest, beneficiaries, and assigns. In the event that MedSpa 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, MedSpa 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.
33. The signatory for MedSpa represents that he or she is authorized to bind MedSpa to this Agreement.
34. This Agreement is the entire agreement between the United States and MedSpa on the matters raised herein and no other statement, promise or agreement, either written or oral, made by any party or agents of any party, is enforceable. This Agreement can only be modified by mutual written agreement of the parties.
35. This Agreement is a public document. The Parties agree and consent to the United States’ disclosure of this Agreement and information concerning this Agreement to the public subject to any applicable privacy laws.
36. 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. Nothing in this Agreement changes MedSpa’s obligation to otherwise comply with the requirements of the ADA.
    

EFFECTIVE DATE/TERMINATION DATE

37. The effective date of this Agreement is the date of the last signature below.
38. The duration of this Agreement will be three years from the effective date.