SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
AND SELMA MEDICAL ASSOCIATES, INC.
UNDER THE AMERICANS WITH DISABILITIES ACT
DJ # 202-80-64

Press Release

I. BACKGROUND

The parties to this Settlement Agreement are the United States of America and Selma Medical Associates, Inc. (Selma Medical).
This matter is based upon a complaint filed with the United States Department of Justice (Department), in which a Complainant alleged that Selma Medical, a medical facility that provides primary and specialty care in Winchester, Virginia, discriminated against him 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 Complainant alleges that Selma Medical refused to accept him for a new family practice appointment because he was being treated with Suboxone, which is a prescription medication approved by the U.S. Food and Drug Administration for treating opioid use disorder (OUD).
The parties have reached an agreement that it is in the parties’ best interests, and the United States believes that it is in the public interest, to resolve this dispute. The parties have therefore voluntarily entered into this Agreement as follows:

II. TITLE III COVERAGE AND DETERMINATIONS

The Attorney General of the United States is responsible for administering and enforcing Title III of the ADA, 42 U.S.C. §§ 12181-12189, and the relevant regulations implementing Title III, 28 C.F.R. Part 36.
Selma Medical is a privately owned medical facility that provides primary and specialty care, and is located at 330 Amherst Street in Winchester, Virginia. Selma Medical is a place of public accommodation because it is a professional office of a health care provider. 42 U.S.C. § 12181(7)(F); 28 C.F.R. § 36.104(6). Selma Medical is also a private entity that owns, operates, leases or leases to a place of public accommodation within the meaning of 42 U.S.C. § 12182(a), and is thus subject to the requirements of Title III of the ADA.
The Complainant is a person with a disability because he has OUD, a physical or mental impairment that substantially limits one or more major life activities. At all relevant times, he did not engage in the illegal use of drugs and has participated in a supervised rehabilitation program. 28 C.F.R. § 36.105(b)(2) (defining physical or mental impairment to include “drug addiction”); 42 U.S.C. § 12210. OUD substantially limits major life activities, including caring for oneself, learning, concentrating, thinking, and communicating. 42 U.S.C. § 12102(2)(A). OUD also limits the operation of major bodily functions, such as neurological and brain functions. 42 U.S.C. § 12102(B). The determination of whether an impairment substantially limits a major life activity is made without regard to the effect that ameliorating measures, including medication, may have on the impairment. 42 U.S.C. § 12102(4)(E)(i).
As a result of its investigation, the United States has determined the following:

In November 2017, Selma Medical refused to schedule the Complainant for a new patient family practice appointment after he disclosed that he takes Suboxone, and was told that this is Selma Medical’s policy.
Selma Medical regularly turns away prospective new patients who are treated with narcotic controlled substances such as Suboxone.
Providing family practice care is one of Selma Medical’s primary practice areas.
By refusing to accept the Complainant for a new family practice appointment solely because he takes Suboxone, Selma Medical discriminated against him by denying him the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of Selma Medical, and by denying him the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations being offered by Selma Medical. 42 U.S.C. §§ 12182(a), 12182(b)(1)(A)(i); 28 C.F.R. §§ 36.201(a), 36.202(a).
By turning away the Complainant and other prospective patients who are treated with narcotic controlled substances, including Suboxone, Selma Medical imposed eligibility criteria that screen out or tend to screen out individuals with OUD. 12182(b)(2)(A)(i); 28 C.F.R. § 36.301(a). Further, Selma Medical failed to make reasonable modifications to policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities. 42 U.S.C. §12182(b)(2)(A)(ii); 28 C.F.R. § 36.302(a).

III. ACTIONS TO BE TAKEN BY SELMA MEDICAL

General Obligations

Selma Medical shall comply with the requirements of Title III of the ADA, 42 U.S.C. § 12182, and its implementing regulation, 28 C.F.R. Part 36. That mandate includes, but is not limited to, the following:

Selma Medical shall not discriminate on the basis of disability, including OUD, in the full and equal enjoyment of Selma Medical’s goods, services, facilities, privileges, advantages, or accommodations. 42 U.S.C. § 12182(a), 28 C.F.R. § 36.201(a).
Selma Medical shall not deny an individual on the basis of disability, including OUD, the opportunity to participate in or benefit from its goods, services, facilities, privileges, advantages, or accommodations. 42 U.S.C. § 12182(b)(1)(A)(i), 28 C.F.R. § 36.202(a).
Selma Medical shall not utilize standards, criteria, or methods of administration that have the effect of discriminating on the basis of disability, including OUD. 42 U.S.C. § 12182(b)(1)(D), 28 C.F.R. § 36.204.
Selma Medical shall not impose or apply eligibility criteria that screen out, or tend to screen out, an individual with a disability or a class of individuals with disabilities (including OUD) from fully and equally enjoying its 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).
Selma Medical shall make reasonable modifications to policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless it can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations. 42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302(a).

Non-Discrimination Policies and Procedures

Within 30 calendar days of the effective date of this Agreement, Selma Medical shall submit a draft non-discrimination policy to the United States for its review and approval. Additionally, Selma Medical shall amend or remove any existing policies or statements that deny or limit treatment for individuals with disabilities, including OUD and those who use medication to treat OUD. Within 30 calendar days of the effective date of this Agreement, Selma Medical shall send copies of all revised written materials to the United States for its review and approval.
Within 21 days of approval by the United States, Selma Medical shall adopt and implement the non-discrimination policy, and any other new and/or modified policies and practices, and shall disseminate a copy of its new and/or modified policies and practices to all employees. Selma Medical shall conspicuously post the non-discrimination policy in the reception area of Selma Medical and as a link on the company’s main webpage, currently located at http://selmamed.com/, as well as on the webpage of any future Selma Medical website, for the duration of this Agreement. Throughout the term of this Agreement, Selma Medical shall disseminate these policies and practices to all new employees within 30 days of their hire.

Training

Selma Medical shall provide ADA training to all of its management and employees who interact with new or current patients within 60 calendar days of the effective date of this Agreement, and every year thereafter for the Term of this Agreement.
The ADA Training shall address:

the requirements of Title III of the ADA, including the “General Obligations” outlined at Paragraph 8 of this Agreement;
a general overview of the terms and obligations of this Agreement; and
the reporting obligations under Paragraphs 16-18 of this Agreement.

The ADA Training shall be conducted by an individual or individuals with substantive knowledge of the ADA. The initial ADA Training shall be conducted live, with a group opportunity to pose questions to the individual(s) conducting the training at the conclusion of the training session. Each subsequent training may be conducted by video recording.
Selma Medical shall send to counsel for the United States for pre-approval the name, qualifications (including resume), and contact information of the individual who will conduct the training, no later than 30 calendar days after the effective date of this Agreement. The trainer shall be pre-approved by the United States.
For each session of the ADA Training conducted under this Agreement, Selma Medical shall maintain attendance logs reflecting the date of the training, names and titles of attendees, and the attendees’ signatures.

Reporting

Initial Regular Report: Within 120 calendar days following the effective date of this Agreement, Selma Medical shall submit a report to the United States confirming its implementation of the policies referenced in Paragraphs 9-10 (“Non-Discrimination Policies and Procedures”) as well as its fulfillment of the requirements of Paragraph 8 (“General Obligations”) and Paragraphs 11-15 (“Training”). Selma Medical shall provide the Department with the attendance logs maintained for the ADA Training under Paragraph 15.
Subsequent Regular Reports: For the Term of this Agreement, every year on the anniversary of the due date of the Initial Regular Report, Selma Medical shall submit a Subsequent Regular Report to the Department regarding its compliance with this Agreement. The report shall include, for the period since the prior report to the Department, the following:

All dates of Selma Medical’s ADA Training conducted pursuant to this Agreement;
All attendance logs associated with the ADA Training conducted pursuant to this Agreement; and
Selma Medical’s continued fulfillment of the obligations of Paragraph 8 (“General Obligations”), Paragraphs 9-10 (“Non-Discrimination Policies and Procedures”) and Paragraphs 11-15 (“Training”).

Immediate Reports: During the Term of this Agreement, Selma Medical shall notify the United States within 30 calendar days of:

A request for new treatment by any individual with OUD, or for continued treatment by any individual whose OUD status becomes known to Selma Medical. In such an instance, Selma Medical shall identify the individual by initials only, and the United States shall keep confidential such information. Thereafter, Selma Medical shall inform the United States of the status of the prospective patient’s request for treatment. For any such individual who is denied treatment, Selma Medical shall provide an explanation, as well as documents (including, but not limited to, internal and external email correspondence), indicating the reason for the denial.
The decision to stop treating any individual with OUD. Such notification shall include all documents (including, but not limited to, internal and external email correspondence) relating to the decision to stop treatment for the individual.
Knowledge of any lawsuit, written complaint, charge, or other allegation that Selma Medical has engaged in disability-based discrimination and/or violated the ADA with regard to a person with OUD. Such notice shall include, at a minimum, a description of the nature of the allegation, the name(s) of the individual(s) bringing the allegation, and all documentation possessed by Selma Medical relevant to the allegation.
All reports required pursuant to this Agreement shall be delivered to the undersigned counsel or other person specified by the Department.

Monetary Relief

Within ten (10) days after receiving the Complainant’s signed release (attached as Exhibit A), Selma Medical shall send a check in the amount of thirty thousand dollars ($30,000.00) made out to the Complainant. This check is compensation to the Complainant pursuant to 42 U.S.C. § 12188(b)(2)(B) for the effects of the discrimination and the harm he has endured, including, but not limited to, emotional distress and pain and suffering, as a result of Selma Medical’s failure to accept him as a new patient. Selma Medical shall provide written notification to counsel for the United States, including a copy of the check, within seven (7) days of completing the actions described in this paragraph.

Civil Penalty

Within 30 days of the effective date of this Agreement, Selma Medical shall pay a civil penalty in the amount of ten thousand dollars ($10,000.00) as authorized by 42 U.S.C. § 12188(b)(2)(C) and 28 C.F.R. § 36.504(a)(3), as amended, in order to vindicate the public interest.

IV. OTHER PROVISIONS

In consideration for this Agreement, the United States shall close its investigation of DJ # 202-80-64 and shall not institute a civil action at this time alleging discrimination by Selma Medical based on the facts set forth in paragraph 7. The United States may review Selma Medical’s compliance with this Agreement and/or Title III of the ADA at any time. If the United States believes that this Agreement or any portion of it has been violated, it will raise its concerns with Respondent and the parties will attempt to resolve the concerns in good faith. If the parties are unable to reach a satisfactory resolution of the issue within thirty (30) days of the date the United States provides notice to Selma Medical, the United States may institute a civil action in an appropriate Federal District Court to enforce this Agreement or the ADA.
Failure by the United States to enforce any provision of this Agreement is not a waiver of its right to enforce any provision of this Agreement.
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 Selma Medical shall engage in good faith negotiations 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.
This Agreement is binding on Selma Medical, including all principals, agents, executors, administrators, representatives, employees, and beneficiaries. In the event that Selma Medical seeks to sell, transfer, or assign substantially all of its assets or a controlling membership position in Selma Medical during the term of this Agreement, then, as a condition of such sale, transfer, or assignment, Selma Medical shall 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.
The signatory for Selma Medical represents that he or she is authorized to bind Selma Medical to this Agreement.
This Agreement constitutes the entire agreement between the United States and Selma Medical 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.
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, including any other claims for discrimination on the basis of disability. Nothing in this Agreement relieves Selma Medical of its obligation to fully comply with the requirements of the ADA.

V. EFFECTIVE DATE/TERMINATION DATE

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

By their signatures below, the Parties consent to the execution of all aspects of this Agreement.

For Selma Medical Associates, Inc.:

/s/ Philip J. O'Donnell
PHILIP J. O’DONNELL, M.D.
President
Selma Medical Associates, Inc.
104 Selma Drive
Winchester, Virginia 22601

/s/ Eric Atkinson
ERIC ATKINSON
Hancock, Daniel & Johnson, P.C.
PO Box 72050
Richmond, VA 23255-2050
Telephone: (866) 967-9604
Facsimile: (804) 967-9888
Email: eatkinson@hancockdaniel.com

Date: December 21, 2018

For the United States of America:

ERIC S. DREIBAND
Assistant Attorney General
Civil Rights Division

ALBERTO RUISANCHEZ
Acting Deputy Assistant Attorney General
Civil Rights Division

REBECCA B. BOND
Chief

KATHLEEN P. WOLFE
Special Litigation Counsel

AMANDA MAISELS
Deputy Chief

/s/ Elaine Grant
ELAINE GRANT
Senior Trial Attorney
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
New York Avenue Building, Room 4006
Washington, DC 20530
Telephone: (202) 307-1444
Facsimile: (202) 307-1197
Email: Elaine.Grant@usdoj.gov

Date: January 31, 2019

SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND SELMA MEDICAL ASSOCIATES, INC. UNDER THE AMERICANS WITH DISABILITIES ACT DJ # 202-80-64