SETTLEMENT AGREEMENT
UNDER THE AMERICANS WITH DISABILITIES ACT
BETWEEN
THE UNITED STATES OF AMERICA
AND
RIVERSIDE MEDICAL CLINIC, INC.
USAO # 2018V00207, DJ # 202-12C-738

1. Background
   1. The parties to this Settlement Agreement (“Agreement”) are the United States of America (the “United States”) and the Riverside Medical Clinic, Inc. (“RMC”).
   2. RMC operates medical campuses and offices in seven locations in Riverside County (collectively “RMC’s offices”), which are listed below:
   • Brockton/Riverside: 7117 Brockton Avenue, Riverside, California, 92506;
   • Eastvale: 12742 Limonite Avenue, Cloverdale Marketplace, Eastvale, California, 92880;
   • Jurupa Valley: 6250 Clay Street, Riverside, California, 92509;
   • Mission Grove: 19314 Jesse Lane, Suite 100, Riverside, California, 92508;
   • Moreno Valley: 6405 Day Street, Riverside, California, 92507;
   • Murrieta: 33040 Antelope Road, Suite 113, Murrieta, California, 92563; and
   • Temescal Valley: 21634 Retreat Parkway, Temescal Valley, California 92883.
   3. The United States Attorney’s Office for the Central District of California (“USAO”), a component of the Department of Justice, initiated an investigation of RMC under Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181–12189, as amended, and its implementing regulations, 28 C.F.R. Part 36, upon the receipt of a complaint, USAO No. 2018V00207, DOJ No. 202-12C-738 (“Complaint”). The complaint alleged that RMC failed to provide effective communication to a patient who is deaf, specifically by repeatedly declining to provide her any auxiliary aids or services other than video remote interpreting (VRI) services even though RMC’s VRI system repeatedly failed to work, and requiring her to provide her own interpreter for appointments.
   4. The United States and RMC 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 agreed to the terms of this Settlement Agreement.
   5. The Parties agree and mutually acknowledge that this Agreement is for settlement purposes only. RMC has denied and continues to deny any wrongdoing in connection with the Complaint. Neither this Agreement nor any action taken pursuant to this Agreement shall constitute an admission of any wrongdoing, fault, violation of law, or liability of any kind on the part of RMC, or an admission by RMC of any claim or allegations made in the Complaint. This Agreement is entered into, in substantial part, to avoid the fees and expenses associated with continued investigation and potential litigation of the Complaint.
2. DEFINITIONS
6. The term “auxiliary aids and services” includes qualified interpreters onsite or through video remote interpreting (VRI) services; notetakers; real time computer-aided trans-cription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing. 28 C.F.R. § 36.303(b)(1).
7. The term “effective date” means the date of the last signature below.
8. The term “patient” shall be broadly construed to include any individual who is deaf or hard of hearing and is seeking or receiving health care services from RMC, whether as an inpatient or an outpatient.
9. The term “companion” means a person who is deaf or hard of hearing and is a family member, friend, or associate of an individual seeking access to, or participating in, the goods, services, facilities, privileges, advantages, or accommodations of a public accommodation, who, along with such individual, is an appropriate person with whom the public accommodation should communicate. 28 C.F.R. § 36.303(c)(1)(i). This requirement does not supersede any federal, state, or local statute, rule, or regulation that might prohibit the companion from participating in any communications between RMC and the patient for confidentiality reasons.
10. The term “qualified interpreter” means an interpreter who, via a video remote interpreting (VRI) service or an onsite appearance, is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators. 28 C.F.R. § 36.104.
3. TITLE III COVERAGE AND DETERMINATIONS
   11. The Department of Justice is authorized under 42 U.S.C. § 12188 and 28 C.F.R. Part 36, Subpart E, to investigate complaints to determine compliance with Title III of the ADA. Ensuring that health care providers do not discriminate on the basis of disability is an issue of general public importance. Title III authorizes the United States to investigate alleged violations of Title III of the ADA, to use alternative means of dispute resolution, where appropriate, including settlement negotiations to resolve disputes, 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(a)(2), 12188(b), 12212; 28 C.F.R. §§ 36.502, 503, 506.
   12. The complainant, who is deaf, is an individual with a disability within the meaning of the ADA. 42 U.S.C. § 12102; 28 C.F.R. § 36.104.
   13. The ADA prohibits discrimination on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations by any person who owns, operates, leases or leases to a place of public accommodation. 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a). 
   14. The RMC clinics are places of public accommodation within the meaning of Title III of the ADA. 42 U.S.C. § 12181(7)(F); 28 C.F.R. § 36.104. Accordingly, RMC, which owns and operates the clinic facilities, is a public accommodation obligated to comply with the requirements of Title III.  Id.
   15. Pursuant to the ADA, a public accommodation 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 from 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 the goods and services being offered, or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303(a). A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication. 28 C.F.R. § 36.303(c).
   16. The complaint alleges that RMC discriminated against an individual with a disability who sought care from RMC. Specifically, the complainant, who is deaf, alleges that, in multiple medical appointments with RMC between April and November 2017, RMC failed to provide effective communication in that it repeatedly offered her only a VRI, and on each such occasion the VRI failed to work properly. When the complainant requested an onsite interpreter, she was told that she needed to provide one herself or arrange for one through her insurance company.
   17. On the basis of its investigation, the United States has determined that RMC discriminated against the complainant in violation of Title III of the ADA by failing to provide her with auxiliary aids and services necessary for effective communication during several of the complainant’s medical appointments at RMC’s offices from April through November 2017, in violation of 42 U.S.C. § 12182(b)(2)(A)(iii) and 28 C.F.R. § 36.303.
4. REMEDIAL ACTIONS
   1. Prohibition of Discrimination
      18. Nondiscrimination. Consistent with the ADA, RMC will not discriminate against any individuals, including patients and their companions, on the basis of disability, in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations available at RMC by excluding or providing unequal treatment to persons with disabilities. 42 U.S.C. § 12182.
      19. Communications. RMC shall take steps to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently from other individuals because of the absence of auxiliary aids or services, unless taking those steps would fundamentally alter the nature of the goods and services being offered, or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303(a). RMC shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication. 28 C.F.R. § 36.303(c).  
      20. Limitation Regarding Qualified Interpreters. A public accommodation shall not require an individual with a disability to bring another individual to interpret for her. 28 C.F.R. § 36.303(c)(2).
      21. Retaliation and Coercion. RMC shall not retaliate against or coerce in any way any person who made, or is making, a complaint according to the provisions of this Agreement or exercised, or is exercising, his or her rights under this Agreement or the ADA. See 42 U.S.C. § 12203.
      22. Policy Revision. RMC agrees to modify its ADA policy to address and include paragraphs 18–21 and 23–35 of this Agreement. Pursuant to 42 U.S.C. § 12182(b)(2)(A)(iii), this revised policy will require RMC to provide to deaf or heard-of-hearing patients and companions appropriate auxiliary aids and services, including qualified interpreters, to the extent necessary for effective communication as required by law and set forth in this Agreement. RMC shall send a copy of this modified policy to the United States for its approval within 60 days after the effective date of this Agreement.
   2. Effective Communication
   23. Appropriate Auxiliary Aids and Services. RMC shall comply with its policies, as amended in accordance with this Agreement, to provide, free of charge, appropriate auxiliary aids and services, including qualified interpreters (VRI or otherwise), to individuals who are deaf or hard of hearing or their companions whenever they are necessary to ensure effective communication for those individuals or their companions.
   24. VRI Services. If a VRI service is used, RMC will ensure that the service provides: (1) real-time, full motion video and audio over a dedicated high-speed, wide-bandwidth video connection or wireless connection that delivers high-quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in communication; (2) a sharply delineated image that is large enough to display the interpreter’s face, arms, hands, and fingers, and the participating individual’s face, arms, hands, and fingers, regardless of his or her body position; (3) a clear, audible transmission of voices; and (4) adequate training to users of the technology and other involved individuals so that they may quickly and efficiently set up and operate the VRI. 28 C.F.R. § 36.303(f). VRI shall not be used when it is not providing effective communication. If, based on the circumstances, VRI is not providing effective communication, RMC will call for an onsite interpreter as soon as possible. Further, if the VRI device is not functioning properly and RMC staff are unable to get the VRI device to function properly within 30 minutes after it starts to malfunction, RMC will call for an onsite interpreter.
   25. Time for Determination of Appropriate Auxiliary Aids and Services. The determination of appropriate auxiliary aids and services, and the timing, duration, and frequency with which they will be provided, will be made at the time a patient schedules an appointment, or upon the arrival of the patient or companion at RMC, whichever is earlier. RMC will amend its policy to include this.
   26. Communication Assessment Form. RMC’s staff will provide a communication assessment form to the patient or companion at the time prescribed in Paragraph 25, or at any subsequent time that a patient or companion who has not received the form already identifies himself or herself as deaf or hard of hearing, and shall document the results in the patient’s medical chart. The agreed-upon Communication Assessment Form is attached to this Agreement as Exhibit A, and will be used by RMC immediately upon the effective date of this Agreement. RMC may develop a more comprehensive form similar to Exhibit A. Any modifications to the form will be subject to approval by counsel for the United States prior to implementation.
   27. General Assessment Criteria. The determination of appropriate auxiliary aids or services, and the timing, duration, and frequency with which they will be provided, will be made by RMC in consultation with the person with a disability whenever possible. In making these determinations, RMC and/or its staff will take into account all relevant facts and circumstances, including, but not limited to, the following:
   1. the nature, length, complexity, and importance of the communication at issue;
   2. the individual’s communication skills and knowledge;
   3. the patient’s health status or changes thereto; and
   4. the patient’s and/or companion’s request for, or statement of need for, an interpreter.
   28. RMC shall document in the patient’s medical chart its consultation with the patient or companion and its consideration of the above factors. Examples of circumstances in which it may be necessary to provide qualified interpreters, VRI or otherwise, include, but are not limited to, obtaining a patient’s medical history or description of ailment; explaining or discussing a patient’s diagnosis or prognosis; explaining or discussing follow-up care, including a patient’s or companion’s questions regarding the patient’s condition and/or previous or future procedures, tests, and/or treatment; and medications prescribed. A patient’s preferences are not a guarantee of the specific type of auxiliary aids/services that are ultimately provided to the patient, as long as the auxiliary aids/services provide effective communication.
       1. Record of Need for Auxiliary Aid or Service. RMC will take appropriate steps to ensure that appropriate staff are made aware of a patient’s or companion’s disability and auxiliary aids and services needed so that effective communication with such person will be achieved. These steps will include designating this information in the medical record. The patient’s electronic medical record shall be conspicuously labeled to alert appropriate RMC staff to the fact that the patient and/or companion is deaf or hard of hearing. The medical record shall indicate the mode of communication requested by and provided to the patient or companion.
       2. Reassessment. If communication is not effective as required by the ADA, RMC will reassess, in consultation with the patient or companion, as applicable, which auxiliary aids and services are needed to ensure effective communication, and will document the results in the patient’s medical chart in accordance with Paragraph 27. For VRI, RMC will consider the factors described in Paragraph 24.
       3. Ongoing Relationship. If a patient or companion has an ongoing relationship with RMC, for subsequent visits, RMC will determine what auxiliary aids or services to provide based upon the patient’s records, unless the patient specifically notifies RMC otherwise.
       4. ADA Coordinator. RMC shall designate (and replace, as necessary to ensure the position is continually filled) at least one RMC employee to serve as an ADA Coordinator in conjunction with his or her current job duties. The ADA Coordinator shall have the authority to commit RMC to comply with the ADA, including but not limited to providing auxiliary aids and services to a patient or companion. The ADA Coordinator or his/her designee shall be available at all hours that RMC operates to answer questions and provide appropriate assistance regarding appropriate auxiliary aids and services necessary for effective communication, including qualified interpreters. The ADA Coordinator will know where the auxiliary aids are stored, how to obtain aids or services, and how to operate the aids. The ADA Coordinator or his/her designee will be responsible for the maintenance, repair, replacement, and distribution of any auxiliary aids. RMC will ensure that it circulates to all staff and makes available on the employee intranet within RMC the name, telephone number, function, and office location of the ADA Coordinator(s). The ADA Coordinator will also be responsible for the complaint resolution mechanism described in paragraph 33 of the Agreement. The ADA Coordinator will be designated by RMC no later than 30 days following the effective date of this Agreement and will be subject to approval by the USAO, which shall not unreasonably withhold such approval.
       5. Auxiliary Aid and Service Log. Immediately, as of the effective date of this Agreement, RMC shall maintain a log of each request for an auxiliary aid or service. The log will record the time and date of the request; the name of the individual who made the request; the name of the individual for whom the auxiliary aid or service was requested (if different than the requestor); the specific auxiliary aid or service requested; the time and date of the scheduled appointment (if a scheduled appointment was made); the time and date the auxiliary service was provided; the type of auxiliary aid or service provided, if different from what was requested; and, if applicable, a statement that the requested auxiliary aid or service was not provided, along with the reason it was not provided. The log should include the identity of the RMC staff who conduct each assessment and made each determination, and shall be maintained by the ADA Coordinator for the entire duration of the Agreement.
       6. Complaint Resolution. RMC will comply with its complaint resolution policy consistent with the requirements of this paragraph and the rest of this Agreement regarding the investigation of all patient-related disputes, including those regarding effective communication with patients and companions who are deaf or hard of hearing. RMC will maintain records of all complaints regarding effective communication, whether oral or written, made to RMC and actions taken with respect to them. At the time RMC completes its assessment described in paragraphs 25–29 and advises the patient and/or companion of its determination of which appropriate auxiliary aids and services are necessary, RMC will notify deaf and hard-of-hearing persons of its complaint resolution mechanism, to whom complaints should be made, and of the right to receive a written response to the complaint. If any patient or companion is dissatisfied with the provision of auxiliary aids or services by RMC, then that person may lodge a complaint with RMC pursuant to the existing complaint procedure. RMC will provide a written response to the patient or companion within 14 days after receipt of any such complaint absent exigent circumstances. Copies of all complaints related to the provision of auxiliary aids or services to deaf or hard-of-hearing patients or companions and the responses to them will be maintained by RMC for the duration of this Agreement.
       7. Qualified Interpreters. RMC represents that it has identified one or more interpreter services and made appropriate arrangements with such services to provide onsite interpreters as well as VRI services at RMC’s request.RMC will comply with its internal procedures as amended by this Agreement for ordering interpreting services that are consistent with the interpreter or interpreter agency’s procedures. At a minimum, all of RMC’s requests for interpreters, including the time, date and location, will be confirmed in writing at the time of the request. If RMC receives verbal confirmation or speaks with the vendor regarding RMC’s request for an interpreter, this information will be documented in the Auxiliary Aid and Service Log. Additionally, for the duration of this Agreement, RMC will maintain copies of its written correspondence with interpreters and interpreting agencies.
       8. Restricted Use of Certain Persons to Facilitate Communication. RMC will not rely on an adult friend or family member of the individual with a disability to interpret except (1) in an emergency involving an imminent threat to the safety of an individual or the public where there is no interpreter available; or (2) where the individual with a disability specifically requests that the adult friend or family member interpret, the accompanying adult agrees to provide such assistance, and reliance on that adult for such assistance is appropriate under the circumstances.
   3. Notice to Patients and Personnel
      36. Policy Statement. Within 60 days after the effective date of this Agreement, RMC shall include in a conspicuous location on its website, as well as in its Patient Brochure, which is located at each reception area and posted in the Patient Bill of Rights when individuals walk into each clinic, the following:

      In compliance with the Americans with Disabilities Act (ADA), auxiliary aids and services are available free of charge to people who are deaf or hard of hearing.

      These signs shall include the international symbol for “interpreters” shown below:

      

      Additionally, RMC shall list the name and contact information for ADA Coordinator and any other person(s) to whom a patient or companion should speak to request auxiliary aids or services. The Patient Brochure shall also contain the following statement:

      For more information about the Americans with Disabilities Act (ADA), call the Department of Justice’s toll-free ADA Information Line at 1-800-514-0301 (voice), 1-833-610-1264 (TTY), or visit the ADA Home Page at www.ada.gov.

      RMC shall notify the United States in writing when it has completed this action. If any issues arise that affect the anticipated completion date for this, RMC will immediately notify the United States of the issue(s).

      37. Website. Within 60 days after the effective date of this Agreement, RMC shall include on its website language similar to the policy statement described in Paragraph 36, conspicuously linked from its main website currently accessible at: https://www.riversidemedicalclinic.com. RMC shall notify the United States in writing when it has completed this action. If any issues arise that affect the anticipated completion date for this, RMC will immediately notify the United States of the issue(s).
   4. Training
   38. Training for Existing Employees. Within 120 days after the effective date of this Agreement, and annually thereafter, RMC will provide mandatory ADA training for Clinical and Patient Services Staff only. Such training, which can be provided by a third-party, will be sufficient in duration and content to train the covered individuals in:
   1. the various degrees of hearing impairment, language, and cultural diversity in the deaf community;
   2. identification of communication needs of persons who are deaf or hard of hearing;
   3. procedures for documenting requests for provision of auxiliary aids and services in patient charts;
   4. types of auxiliary aids and services available and how to secure them in a timely manner;
   5. the proper use and role of qualified interpreters;
   6. criteria to be used in order to select an interpreter who is qualified;
   7. the proper use and role of VRI services;
   8. making and receiving calls through TTYs and the relay service; and
   9. all other applicable requirements of this Agreement.
   39. Training for New Employees. New employees must be trained within 60 days after their hire. A screening of a video of the original training described in paragraph 38 will suffice to meet this obligation.
   40. Training Attendance Sheets. RMC will maintain, for the duration of this Agreement, confirmation of the training conducted pursuant to paragraphs 38–39 of this Agreement, which will include the names, signatures, and respective job titles of the attendees, as well as the date and time of the training session.
   5. Reporting, Monitoring, and Violations
      41. Training Materials. Within 120 days after the effective date of this Agreement, RMC will provide the United States with a copy of all training materials used to train its staff, training attendance sheets required in paragraph 40, above, and photographs of the notices posted in its offices pursuant to this Agreement.
      42. Compliance Reports. Beginning one year after the effective date of this Agreement and every year thereafter for the entire duration of the Agreement, RMC will provide a written compliance report to the USAO regarding the status of its compliance with this Agreement. The compliance report will include data relevant to the Agreement, including:
      1. the Auxiliary Aid and Service Log described in paragraph 32; and
      2. the number of complaints received by RMC from deaf and hard-of-hearing patients and companions regarding auxiliary aids and services and/or effective communication, and the resolution of such complaints including any supporting documents, as described in paragraph 33.

      RMC will maintain records to document the information contained in the compliance reports and will make them available, upon request, to the USAO. 

      43. Private Actions. During the term of this Agreement, RMC will notify the USAO if it becomes aware of any person filing a lawsuit, complaint, or formal charge with a state or federal agency, alleging that RMC failed to provide auxiliary aids or services, including qualified interpreters, to deaf or hard-of-hearing patients or companions. Such notification must be provided in writing via U.S. mail or electronic mail within 60 days after the date RMC receives notice of the allegation and will include, at a minimum, the nature of the allegation, the name of the person making the allegation (to the extent known), and any documentation possessed by RMC relevant to the allegation. RMC will reference this provision of the Agreement in the notification to the USAO. Similarly, the USAO will notify RMC if any person files a complaint with the Department of Justice alleging that RMC failed to provide auxiliary aids or services, including qualified interpreters, to deaf or hard-of-hearing patients or companions.
   6. Compensatory Relief for Complainant and Release
   44. Compensation. Within 30 days after receiving the complainant’s signed release and the complainant’s completed and signed Form W-9, RMC will send by overnight delivery, a check in the amount of five thousand dollars ($5,000.00) (“Settlement Payment”) made out to the complainant [name redacted]. The check will be sent to counsel for the United States at the address indicated in paragraph 53, below. This Settlement Payment is compensation to the complainant pursuant to 42 U.S.C. § 12188(b)(2)(B), for the effects of the alleged discrimination suffered as described in paragraphs 3 and 16, which RMC continues to deny. Unless otherwise directed by the United States, the check shall be mailed to the person specified in paragraph 53, below.
   45. Release. Within 15 days after the effective date, the USAO will deliver to counsel for RMC a release signed by the complainant. The release is attached as Exhibit B.
   7. Civil Penalty to United States
      46. Within 30 days after the effective date, RMC will pay to the United States of America the sum of $1,000.00 pursuant to 42 U.S.C. §12188(b)(2)(C) in order to vindicate the public interest. The check will be mailed to the person specified in paragraph 53, below.
5. ENFORCEMENT AND MISCELLANEOUS
   47. Duration of the Agreement. This Agreement will be in effect for two years from the effective date.
   48. Consideration. In consideration of the terms of this Agreement as set forth above, the United States shall refrain from undertaking further investigation or from filing a civil suit under Title III of the ADA in this matter except as provided in paragraph 49. Nothing contained in this Agreement is intended or shall be construed as a waiver by the United States of any right to institute proceedings against RMC for violations unrelated to this matter under any statutes, regulations, or rules administered by the United States or to prevent or limit the right of the United States to obtain relief under the ADA.
   49. Compliance Review and Enforcement. The United States may review compliance with this Agreement at any time and can enforce this Agreement if the United States believes that it or any requirement thereof has been violated by instituting a civil action in U.S. District Court. If the United States believes that this Agreement or any portion of it has been violated, it will raise its claim(s) in writing with RMC, and the parties will attempt to resolve the concern(s) in good faith. The United States will allow RMC 60 days from the date RMC is notified of any breach of this Agreement to cure said breach, prior to instituting any court action to enforce the ADA or the terms of the Agreement.
   50. Entire Agreement. This Agreement and the attachments to it constitute 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 does not purport to remedy any other potential violations of the ADA or any other federal law.
   51. Binding. This Agreement is final and binding on the parties, including all principals, agents, executors, administrators, representatives, successors in interest, beneficiaries, assigns, heirs and legal representatives thereof. Each party has a duty to inform any such successor in interest of this Agreement.
   52. Counterparts. This Agreement may be executed in counterparts, each of which constitutes an original and all of which constitute one and the same Agreement. Electronically transmitted signatures shall constitute acceptable, binding signatures for purposes of this Agreement.
   53. Notices. All notices, reports, and other communications to be provided to the United States in accordance with this Agreement shall be in writing and delivered by U.S. mail or electronic mail to the following, unless specified otherwise by the USAO:

   Matthew Nickell
   Assistant U.S. Attorney
   Civil Rights Section, Civil Division
   United States Attorney’s Office
   300 North Los Angeles Street, Suite 7516
   Los Angeles, California  90012
   Email: matthew.nickell@usdoj.gov

   54. Non-Waiver. Failure by the United States to seek enforcement of this Agreement pursuant to its terms with respect to any instance or provision shall not be construed as a waiver to such enforcement with respect to all other instances or provisions.