SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND PROHEALTH CARE, INC. UNDER THE AMERICANS WITH DISABILITIES ACT
DJ# 202-85-112

BACKGROUND

1. The parties to this Settlement Agreement are the United States of America and ProHealth Care, Inc. (“ProHealth”).
2. This matter is based upon a complaint filed with the United States Department of Justice, in which the Complainants allege that ProHealth discriminated against them on the basis of disability in violation of title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181-12189. Specifically, the Complainants, who are a husband and wife and are both deaf, allege that ProHealth failed to provide effective communication with them during Complainant 1’s treatment at a ProHealth facility.
3. The parties have reached an agreement to resolve this dispute.  The United States believes the agreement is in the public interest. The parties therefore voluntarily enter into the following Agreement.

TITLE III COVERAGE AND FINDINGS

4. The United States Attorney’s Office for the Eastern District of Wisconsin (“USAO”) is authorized to investigate alleged violations of 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 1 and 2 are married.  They are deaf and use American Sign Language as their primary means of communication.  They have a disability within the meaning of 42 U.S.C. § 12102 and 28 C.F.R. § 36.104.
6. ProHealth is a community-based health care system and offers a full range of services, such as fitness and wellness, primary care and specialty care, hospital care, rehabilitation care, and others. ProHealth is headquartered in Waukesha, Wisconsin.
7. ProHealth owns, leases, or operates places 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 professional offices of health care providers. See also 28 C.F.R. § 36.104.
8. Under title III of the ADA, no person who owns, leases, 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).
9. A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities and with companions of patients who are individuals with disabilities.  28 C.F.R. § 36.303(c). 
10. Ensuring that medical care providers do not discriminate on the basis of disability is an issue of general public importance. The USAO 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 finds the following:
1. On February 18, 2017, Complainant 1 sought medical treatment at the emergency department of ProHealth’s Oconomowoc Memorial Hospital.  Complainant 2 and their minor child were her companions.
2. At the time of her arrival at the emergency department, Complainant 1 suffered from acute abdominal pain, and the medical staff deemed her situation serious, with potential issues including appendicitis and a bowel obstruction.  ProHealth’s medical staff performed a CT scan and administered pain and nausea medications. 
3. ProHealth’s staff, however, failed to provide any auxiliary aids to Complainant 1 or Complainant 2 for the first approximately three hours of Complainant 1’s treatment.  More specifically, ProHealth’s staff failed to offer video remote interpreting (VRI) to the Complainants (even though one was available at the hospital).  ProHealth’s staff attempted to obtain an in-person American Sign Language interpreter.  The first two agencies contacted by ProHealth did not have interpreters available.  The third agency did have an interpreter, but because the interpreter was at least an hour away from the hospital, ProHealth declined to have the interpreter come to the hospital.  ProHealth failed to contact a fourth agency with whom it had a contract for interpreter services. 
4. Instead of providing appropriate auxiliary aids, ProHealth’s staff relied on the Complainants’ minor child, who communicates in both spoken English and American Sign Language, to interpret for the medical staff and the Complainants.  The Complainants’ minor child was not familiar with many of the medical terms the child was asked to translate, and in light of Complainant 1’s pain, the child was emotionally upset during the experience.  The Complainants were not able to communicate effectively with the emergency room medical staff during this period.
5. After the Complainants provided contact information for an additional interpretative services agency and about three hours after they arrived at the hospital, ProHealth obtained an in-person interpreter.
12. Based on the findings described in paragraph 11, above, the United States determined that ProHealth denied Complainants appropriate auxiliary aids and services necessary for effective communication during Complainant 1’s treatment and stay at ProHealth’s Oconomowoc Memorial Hospital in February 2017.
13. Complainants are aggrieved persons within the meaning of 42 U.S.C. § 12188(b)(2)(B).

REMEDIAL ACTIONS

14. ProHealth, including its hospitals, physicians, outpatient health care centers, and other medical facilities, agrees that it will not discriminate against any individual on the basis of disability, including hearing impairment, 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. Pursuant to 42 U.S.C. § 12182(b)(2)(A)(iii), ProHealth will provide to patients and companions who are deaf or hard of hearing any appropriate auxiliary aids and services that are necessary for effective communication, free of charge.  To implement the provision of auxiliary aids and services, ProHealth has reviewed and revised as appropriate its policy on “Communication with Persons with Hearing Impairments.”  As requested by ProHealth, the United States has reviewed ProHealth’s revised policy on “Communication with Persons with Hearing Impairments” and finds that it is consistent with the ADA’s requirements.
16. Within ninety (90) days of the effective date of this agreement, ProHealth will update its orientation and training materials for its employees to reflect the content of the revised policy on “Communication with Persons with Hearing Impairments.”
17. Within ninety (90) days of the effective date of this agreement, ProHealth will incorporate the training materials identified in paragraph 16, above, into the orientation given to all new employees through the term of this Agreement.
18. ProHealth will maintain an attendance log that documents the name of each individual who attends, either in person or via an electronic medium, the trainings identified in paragraph 17, above, his or her title, and the date he or she attended or viewed the training. Copies of such attendance logs shall be provided to the United States within ten days of any request for them and maintained for the duration of this Agreement.
19. Within ninety (90) days of the effective date of this agreement, ProHealth will provide written notice to ProHealth employees who work with patients of:  (1) the existence of the revised “Communication with Persons with Hearing Impairments” policy, (2) a summary of the key provisions of that policy, (3) a copy of the full policy, and (4) a summary of the instructions on using the VRI equipment and instructions on where those instructions are located on ProHealth’s intranet.
20. Within the later of 30 days of the effective date of this Agreement and the date Complainant 1 provides ProHealth with an IRS Form W-9, ProHealth will pay $15,000 to Complainant 1 to compensate her for any harm she may have endured (including, but not limited to, emotional distress, pain, and suffering). ProHealth will issue an IRS Form 1099 to Complainant 1 for this payment.
21. Within the later of 30 days of the effective date of this Agreement and the date Complainant 2 provides ProHealth with an IRS Form W-9, ProHealth will pay $5,000 to Complainant 2.  ProHealth will issue an IRS Form 1099 to Complainant 2 for this payment.
22. ProHealth will notify the United States in writing when it has completed the actions described in paragraphs 16 – 21. This notification need only be provided when ProHealth has completed all of the actions required in the relevant paragraphs. If any issues arise that affect the anticipated completion dates set forth in those paragraphs, ProHealth will immediately notify the United States of the issues, and the parties will attempt to resolve those issues in good faith.

OTHER PROVISIONS

23. In consideration for the Agreement set forth above, the United States will close its investigation of DJ # 202-85-112 and will not institute a civil action alleging discrimination based on the findings set forth in paragraph 111.  However, the United States may review ProHealth’s compliance with this Agreement or the ADA at any time. If the United States believes that ProHealth may have violated the ADA or this Agreement, the United States may institute a civil action in the appropriate federal court to enforce this Agreement and/or the ADA.
24. Failure by the United States to enforce any provision of this Agreement is not a waiver of its right to enforce any provisions of this Agreement.
25. 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 ProHealth 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.
26. This Agreement is binding on ProHealth, including all principals, agents, executors, administrators, representatives, employees, successors in interest, beneficiaries, and assignees. In the event that ProHealth seeks to sell, transfer, or assign all or part of its interest in any public accommodation during the term of this Agreement, as a condition of sale, transfer, or assignment, ProHealth 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.
27. The signatory for ProHealth represents that he or she is authorized to bind ProHealth to this Agreement.
28. This Agreement constitutes the entire agreement between the United States and ProHealth 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.
29. This Agreement does not constitute a finding by the United States that ProHealth 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 are not specifically addressed in this Agreement, including any other claims for discrimination on the basis of a failure to provide effective communication.  Nothing in this Agreement relieves ProHealth of its obligation to fully comply with the requirements of the ADA.
30. The 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.
31. ProHealth shall not discriminate or retaliate against any person because of his or her participation in this matter.
32. This Agreement is a public document. Copies of this Agreement, and any information contained in the Agreement, may be made available to any person at any time. The United States may provide copies of these documents to any person upon request.

EFFECTIVE DATE/TERMINATION DATE

33. The effective date of this Agreement is the date of the last signature below.
34. The duration of this Agreement will be two years from the effective date.