Settlement Agreement
between
the United States of America
and
Drs. Cooke, Landon & Sellers, Optometrists, P.S.C.,
d/b/a Opticare Vision Centers ("Opticare")
DJ # 202-30-49

1. Background and Jurisdiction
   1. Drs. Cooke, Landon & Sellers, Optometrists, P.S.C., d/b/a Opticare Vision Centers (“Opticare”) operates an Opticare optometry office located at 59 Carothers Road, Newport, Kentucky 41071.
   2. Dr. Keith Sellers, is a director and shareholder of Drs. Cooke, Landon & Sellers, Optometrists, P.S.C. and works as an optometrist at Opticare’s office.
   3. The United States Attorney’s Office for the Eastern District of Kentucky, a component of the United States Department of Justice (“United States”), opened an investigation of Opticare pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§12181-12189, as amended. The United States initiated its investigation upon the receipt of a complaint from an individual that Opticare’s examination rooms were not accessible to people using wheelchairs.   
   4. The United States is authorized to investigate alleged violations of Title III of the ADA. Moreover, the United States is authorized, where appropriate, to use alternative means of dispute resolution, including settlement negotiations to resolve disputes. If resolution is not achieved, the United States may bring a civil action in federal court in any case where the Attorney General has reasonable cause to believe that a pattern or practice of discrimination exists or where the case raises an issue of general public importance. 42 U.S.C. §§ 12188(b), 12212; 28 C.F.R. §§ 36.502, 36.503, 36.506.
   5. Title III of the ADA mandates that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”  42 U.S.C. § 12182(a).
   6. The Opticare facility is a place of public accommodation within the meaning of Title III because it is a “professional office of a health care provider . . . .”  42 U.S.C. § 12181(7)(F).  Thus, Opticare is a public accommodation subject to the requirements of Title III of the ADA.  42 U.S.C. § 12182.
   7. The Opticare facility is an existing facility originally constructed prior to the effective date of the ADA. Title III of the ADA requires that public accommodations remove architectural barriers to access in existing facilities where it is readily achievable to do so. See 42 U.S.C. §§ 12182(b)(2)(A)(iv)-(v); 28 C.F.R. 36.304.
   8. The United States reviewed information provided by Opticare, conducted a site visit of the office, and reviewed architectural renderings of the proposed renovation to create an accessible exam room at the office. The United States used the ADA Standards for Accessible Design, including the 1991 Standards defined at 28 C.F.R. Part 36, Appendix D, and the 2010 Standards defined at 28 C.F.R. § 36.104, to identify ADA violations, which were shared with Opticare.
2. REMEDIAL ACTIONS TO BE TAKEN BY OPTICARE
1. Opticare will make the following modifications to remove architectural barriers for individuals with disabilities at its office:
1. Within six months of the execution of this Agreement, Opticare shall complete construction of the exam room in accordance with the architectural drawings and/or plans sent on July 3, 2020, and approved by the United States on August 10, 2020.
2. Alterations
1. Any future alterations, as defined in 42 U.S.C. §12183 and 28 C.F.R. § 36.402(b), made to the office and not described in this Agreement shall comply in all respects with the ADA, its implementing regulations, and the 2010 Standards.
2. If an alteration affects or could affect the usability of or access to an area of the office that contains a primary function, that alteration shall be made so as to ensure that, to the maximum extent feasible, the path of travel to the altered areas are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, unless the cost and scope of such alterations is disproportionate to the cost of the overall alteration. 42 U.S.C. §12183(a); 28 C.F.R. § 36.403. 
3. IMPLEMENTATION AND ENFORCEMENT OF AGREEMENT
1. In consideration of the terms of this Agreement, the United States agrees to refrain from filing a civil suit for failure to comply with Title III of the ADA at Opticare; provided, however, that the United States reserves the right to file a civil lawsuit to enforce this Agreement.
2. The United States does not assert that this Agreement or the modifications contemplated herein will bring Opticare into compliance with all aspects of the ADA, and nothing in this Agreement is intended to constitute an interpretation of the legal requirements of the ADA by the United States. Rather, the parties enter into this Agreement for the purpose of compromising disputed claims and avoiding the risk and expenses of litigation. This Agreement is a compromise and it shall not be used or introduced into evidence in any other case or proceeding other than between the parties to this Agreement.
3. The United States may review compliance with this Agreement at any time. Upon reasonable advance notice to Opticare, Opticare shall permit the United States and any person acting on its behalf unlimited access to the office to review compliance with the ADA and this Agreement, provided that such access does not interfere with the comfort, privacy or safety of the patients at the office, or unreasonably interfere with the management and operation of the office.
4. If the United States believes that Opticare has violated this Agreement or any requirement thereof, it agrees to notify Dr. Keith Sellers, Owner, Opticare, in writing of the specific violation(s) alleged. Opticare shall have 30 days from its receipt of the notice to cure and/or respond in writing to the United States the alleged violation(s).
5. Upon completion of the modifications described in Section II.A. of this Agreement, Opticare shall provide certifications to the United States in the form of a narrative report and photos showing that the items within this Agreement that Opticare has agreed to correct have been so corrected. The certifications shall include as an exhibit copies of any complaint, whether formal or informal, received during the reporting period alleging that Opticare did not comply with the ADA or that individuals with disabilities were subject to discrimination on the basis of disability. The parties expressly agree that providing such certifications is essential to the enforcement of this Agreement, and that a failure to provide the certifications required by this paragraph constitutes a breach of this Agreement.
6. All notices, demands, reports, certifications, or other communication to be provided to the United States pursuant to this Agreement shall be in writing and delivered by U.S. mail or electronic mail to the following:

Carrie B. Pond, Assistant U.S. Attorney
U.S. Attorney’s Office
260 W. Vine Street, Suite 300
Lexington, KY 40507-1612
email: carrie.pond@usdoj.gov

7. This Agreement is a public document. A copy of this document or any information contained in it may be made available to any person.
8. 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 its right to do so with regard to other deadlines and provisions of this Agreement.
9. This Agreement constitutes 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 it does not purport to remedy any other potential violations of the ADA, including violations of the alterations or new construction provisions of the ADA, or any other Federal law. This Agreement does not affect the continuing responsibility of Opticare to comply with all aspects of the ADA.     
10. If any provision 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 Opticare shall engage in good faith negotiations in order to adopt such 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.
11. A signor of this document in a representative capacity for an entity represents that he or she is authorized to bind such entity to this Agreement.
12. In the event Opticare seeks to transfer or assign all or part of its interest or assign a lease, as a condition of sale, lease or assignment, regarding the office, Opticare shall obtain the written accession of the successor or assign to any obligations remaining under this Agreement for the remaining term of the Agreement.
13. The Effective Date of this Agreement is the date of the last signature below. This Agreement shall remain in effect for three years from the Effective Date.