SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND PEARL PERIODONTICS COLORADO
UNDER THE AMERICANS WITH DISABILITIES ACT
DJ # 202-13-347

BACKGROUND

1. This action was initiated by a complaint submitted to the United States regarding Mountain Peak Dentistry (MPD).  The complainant alleges that MPD and Pearl Periodontics Colorado (PPC) failed to provide appropriate auxiliary aids and services for dental and periodontal appointments.  The Attorney General is responsible for administering and enforcing Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12181-12189, and its implementing regulations, 28 C.F.R. Part 36.
2. The complainant in this matter is a deaf individual whose primary means of communication is sign language, and who is an individual with a disability within the meaning of 42 U.S.C. § 12102(1)(A) and its implementing regulation 28 C.F.R. § 36.105.
3. PPC is a public accommodation as defined by 42 U.S.C. § 12181(7)(F), and its implementing regulation, 28 C.F.R. § 36.104, because it is a private entity that owns, operates, leases, or leases to places of public accommodation, including the professional offices of a health care provider.  28 C.F.R. § 36.104 (definition of place of public accommodation).  Accordingly, MPD is subject to the applicable requirements of Title III of the ADA, 42 U.S.C. §§ 12181-12189, and its implementing regulations at 28 C.F.R. Part 36.
4. Title III of the ADA and its implementing regulations prohibit discrimination on the basis of disability by public accommodations.  Title III requires public accommodations to ensure that no individual with a disability is discriminated against in the full and equal enjoyment of goods, services, facilities, privileges, advantages or accommodations.  42 U.S.C. § 12182; 28 C.F.R. § 36.201(a).  Specifically, Title III requires public accommodations to take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently than other individuals because of the absence of auxiliary aids or services, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of its goods, services, facilities, privileges, advantages or accommodations, or would result in an undue burden.  42 U.S.C. 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303(a).
5. In 2018, the complainant had three appointments at MPD, including two with the periodontist, Dr. Pearl Lai, owner of PPC, and an independent contractor of MPD.  The complainant or her daughter stated that they asked MPD staff for a qualified interpreter for the appointments with Dr. Lai, but none was provided.  The complainant’s dental treatment plan was complex, including several tooth extractions and dental implants.  At one of the appointments, the complainant made thousands of dollars in payments that she believed was payment for the entire course of treatment, which because of a miscommunication she later found out was only payment for a portion of the treatment.
6. The United States is authorized to investigate alleged violations of Title III of the ADA, to use alternative means of dispute resolution, where appropriate, including settlement negotiations, and 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.  The United States has investigated this complaint under the authority granted by the ADA, 42 U.S.C. § 12188(b)(1)(A)(i), and 28 C.F.R. § 36.502.  Without acknowledging breach of any legal obligation, PPC has voluntarily agreed to take the steps set forth in this Settlement Agreement (Agreement) to ensure future compliance with its responsibilities under Title III.
7. All parties agree that it is in their best interests, and the United States believes it is in the public interest, to resolve this matter promptly and without litigation.  In consideration of the terms of this Agreement, the United States agrees to refrain from undertaking further investigation or from filing a civil suit in this action, except as provided in Paragraph 23, below. 

REMEDIAL ACTIONS

1. Non-Discrimination
   8. PPC will not discriminate against any individual on the basis of disability in the full and equal enjoyment of any of its goods, services, facilities, privileges, advantages, or accommodations or otherwise violate any provision of Title III of the ADA, 42 U.S.C. §§ 12181-12189, or the Title III implementing regulations, 28 C.F.R. Part 36, including but not limited to the following:
      1. PPC will furnish appropriate auxiliary aids and services,¹ free of charge, when necessary to ensure effective communication with individuals with disabilities and shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, 42 U.S.C. § 12182(b)(2)(A)(iii) and 28 C.F.R. §§ 36.301(c), 36.303;
      2. PPC will consider the types of auxiliary aids and services that will ensure effective communication. The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual, including: the nature, length, and complexity of the communication involved, and the context in which the communication is taking place, 28 C.F.R. § 36.303(c)(1)(ii);
      3. PPC will consult with individuals with disabilities whenever possible to determine the type of auxiliary aid necessary to ensure effective communication, 28 C.F.R. § 36.303(c)(1)(ii), and will provide timely responses to requests for auxiliary aids and services;
      4. The decision regarding the type of auxiliary aid or service to ensure effective communication ultimately rests with PPC, but the auxiliary aid or service must result in effective communication, 28 C.F.R. § 36.303(c)(1)(ii).  If PPC does not have an alternative means to ensure effective communication, it may only refuse to provide an auxiliary aid or service that would be effective if such auxiliary aid or service would result in a fundamental alteration of the services, facilities, privileges, or advantages of the business, or if the auxiliary aid or service would result in an undue burden, which means a significant difficulty or expense, 28 C.F.R. § 36.303(a);
      5. PPC shall not require an individual who is deaf or hard of hearing to bring another individual to interpret for him or her, unless that individual with a disability specifically requests that the accompanying adult interpret or facilitate communication, the accompanying adult agrees to provide such assistance, and such assistance is appropriate under the circumstances, 28 C.F.R. § 36.303(c)(2) and (3).
      6. PPC will not engage in retaliation, coercion, interference, intimidation, or any other action prohibited by the ADA, 42 U.S.C. § 12203 and 28 C.F.R. § 36.206.
2. Adoption and Implementation of ADA Auxiliary Aids and Services Policy
   9. Within 60 days of the Effective Date of this Agreement, PPC will submit for the approval of the United States, an ADA Auxiliary Aids and Services Policy (“ADA Policy”) that includes the non-discrimination provisions in Subsection A, above, and the policies and procedures PPC has adopted in order to comply with those provisions.
   10. Within 10 days of the United States’ final approval of the ADA Policy, PPC shall notify all of the entities and practices with which it contracts of its ADA Policy by sending a copy to representatives for these entities and practices.  If PPC contracts with any new entities or practices, it shall send the ADA Policy to any new potential entity or practice prior to entering into a contract with that entity or practice.
   11. Within 30 days of the United States’ final approval of the ADA Policy, PPC shall post a copy of the ADA Policy on its website with a link that is easy for the public to find, in a format accessible to persons with disabilities.
3. Program for Effective Communication
   12. Time for Assessment.  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 an appointment is scheduled for patients who PPC knows to be deaf or hard-of-hearing.  In the event that PPC employees become aware or should know that communication is not effective, PPC employees will reassess which appropriate auxiliary aids and services are necessary, in consultation with the person with a disability, where possible, and provide such auxiliary aid or service based on the reassessment.
   13. Subsequent Visits.  If a patient has an ongoing relationship with PPC, with respect to subsequent visits, PPC will continue to provide the appropriate auxiliary aids or services to the patient without requiring another request for auxiliary aids or services to be made for each visit.  In addition, PPC will continue to address the needs of the patient on each visit and will ask the patient questions related to auxiliary aids or services needs in order to ensure that the means of communication provided in past visits continue to be effective means of communication.  PPC will keep appropriate records that reflect the ongoing provision of auxiliary aids and services to patients, such as notations in a patient’s medical charts.
   14. Qualified Interpreters.
   1.   “Qualified Interpreter” means an interpreter who is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary, given the deaf or hard of hearing individual’s language, skills, and education.  Qualified Interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators.  See 28 C.F.R. § 36.104 and 28 C.F.R. Pt. 36, App. A, Qualified Interpreter.
   2. Depending on the length, complexity and nature of the communication, a Qualified Interpreter may be necessary to ensure effective communication.  When, after consulting with the patient with a disability or their representative, PPC determines that an interpreter is necessary to ensure effective communication, PPC shall provide a Qualified Interpreter to patients whose primary means of communication is sign language.  PPC shall establish and maintain a contract with at least one agency that provides qualified interpretation services.  If an interpreter is not available or was not procured and an appointment must be rescheduled, PPC shall reschedule the appointment at the next business day that PPC is regularly scheduled at that location, and where the interpreter and the patient are available, even if other patients must be rescheduled.  
   15. Auxiliary Aid and Service Log.  PPC will maintain a log in which requests for auxiliary aids and services, including requests for qualified interpreters (on-site or through video remote services) will be documented.  The log will indicate the time and date the request was made, the name of the patient and the person making the request, 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.  If no auxiliary aid or service was provided, the log shall contain a statement concerning why the auxiliary aid and service was not provided.  Such logs will be maintained by PPC for the entire duration of the Agreement.
   16. Within 30 days of PPC’s receipt of a lawsuit, complaint, charge, or grievance alleging a violation of Title III of the ADA, PPC will notify the United States in writing via e-mail to zeyen.wu@usdoj.gov.  The notification to the United States will include the nature of the allegation and the name and contact information of the person(s) making the allegation.  PPC will reference this provision of the Settlement Agreement in the notification to the United States. 
4. Training
   17. Within 90 days of the Effective Date of this Agreement and thereafter at least on one additional occasion, PPC shall provide an educational training program regarding its obligations under Title III of the ADA, this Agreement, and the ADA Policy to all PPC employees, whether full or part-time.  The identity of the trainer and all materials must be approved in advance by the United States.  The training shall include detailed information regarding how to assess: (1) effective means of communication for individuals with disabilities, whether written, verbal, through sign language, or otherwise, and (2) the nature, length, and complexity of communication or anticipated communication.  Pursuant to its reporting obligations under this Agreement, PPC will send the United States reasonable proof that each training has occurred and that all required individuals have received it.
   18. PPC will distribute the ADA Policy to all new employees and independent contractors, whether full or part-time, within three days of their hire date, and shall answer any questions employees have regarding the ADA Policy. 

MONETARY RELIEF

19. Pursuant to 42 U.S.C. § 12188(b)(2), the parties agree to the following monetary relief: PPC will pay $3,314 in compensation to the complainant, and $2,000 in civil penalties to the United States, within fourteen (14) days of the Effective Date of this Agreement. Monetary relief shall be paid by cashier’s check made out to the Department of Justice and sent to Zeyen Wu, U.S. Attorney’s Office, 1801 California Street, Suite 1600, Denver, CO 80202.
20. Within ten (10) days of payment in full of the amount set forth in paragraph 19, the United States will send the release form attached hereto as Attachment A to the complainant.  Within ten (10) days of receiving the signed release form, the United States will send a copy to PPC. 

ENFORCEMENT

21. Term of Agreement.  This Agreement will remain in effect for 36 months from the Effective Date.
22. Reporting.  During the term of this Agreement, PPC will provide a report annually to the United States, on the anniversary of the Effective Date of this Agreement, regarding its responsibilities pursuant to paragraphs 9 through 18 of this Agreement.  PPC will send each report to Assistant U.S. Attorney Zeyen Wu at zeyen.wu@usdoj.gov.  Each report will include the Auxiliary Aid and Service Log, information about training of employees that occurred (by date and the content of the training), and any ADA-related policies that PPC adopted. 
23. Review of Compliance.  The United States may review compliance with this Agreement at any time.  If the United States believes that PPC has failed to comply in a timely manner with any requirement of this Agreement, the United States will notify PPC, and it will attempt to resolve the issues in good faith.  If the United States is unable to reach a satisfactory resolution of the issues raised within 30 days of the date it notifies PPC, it may institute a civil action in federal court to enforce the terms of this Agreement or Title III of the ADA and may, in such action, seek any relief available under law.  The parties agree that venue for any action to enforce this Agreement or under Title III of the ADA is in federal district court for the District of Colorado.
24. Entire Agreement.  This Agreement constitutes the entire agreement between the United States and PPC on the matters raised, and no other statement, promise, or agreement made in the course of the United States’ investigation, will be enforceable.  No other statement, promise, or agreement made in the course of the United States’ investigation shall be used in interpreting this Agreement.  This Agreement does not affect PPC’s continuing responsibility to comply with all aspects of the ADA and other federal laws.
25. Binding.  This Agreement is binding on PPC and principals, agents, executors, administrators, representatives, successors in interest, beneficiaries, assigns, and legal representatives thereof.  PPC and its owner(s) have a duty to so inform any such successor in interest of this Agreement.
26. Non-Waiver.  Failure by the United States to enforce this Agreement with regard to any deadline or any provision is not a waiver of the United States’ right to enforce any deadlines and provisions of this Agreement.
27. Availability of Settlement Agreement.  A copy of this Agreement will be made available to any person by PPC or the United States on request.
28. Severability.  In the event a Court determines that any provision of this Agreement is unenforceable, that provision will be severed from this Agreement, and all other provisions will remain valid and enforceable.
29. Authorized to Sign.  The person signing this Agreement for PPC represents that he or she is authorized to bind PPC to this Agreement.