SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
AND
THE UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY
UNDER THE AMERICANS WITH DISABILITIES ACT

BACKGROUND

1. The parties to this Settlement Agreement are the United States of America and the University of Medicine and Dentistry of New Jersey.
2. This matter is based upon two complaints filed with the United States Department of Justice (“Department” or “United States”) alleging that two schools of the University of Medicine and Dentistry of New Jersey (“UMDNJ”) discriminated against individuals with disabilities in violation of title II of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12131 - 12165, and the Department’s title II implementing regulation, 28 C.F.R. Pt. 35. Specifically, the complainants allege that the UMDNJ discriminated against them by rescinding their admissions to the New Jersey Medical School and the School of Osteopathic Medicine because they have Hepatitis B.
3. The parties agree that it is in their best interests, and the United States believes that it is in the public interest, to resolve this dispute without engaging in protracted litigation. The parties have therefore voluntarily entered into this four-year Agreement.

TITLE II COVERAGE AND FINDINGS

4. The Attorney General is responsible for administering and enforcing title II of the ADA and the Department’s title II implementing regulations.
5. The complainants, individuals who have Hepatitis B, have a physical impairment that substantially limits one or more major life activities, including the functions of the liver, a major bodily function. 42 U.S.C. § 12102. Accordingly, the complainants have a disability within the meaning of 42 U.S.C. § 12102(1) and 28 C.F.R. § 35.104.
6. The UMDNJ is a state university that provides medical and osteopathic graduate school education in New Jersey, as well as education in Nursing, Allied Health Professions, Dentistry, Biomedical Sciences and Public Health.
7. The UMDNJ is a “public entity” within the meaning of the ADA, 42 U.S.C. §12131(1), 28 C.F.R. § 35.104, and is, therefore, subject to title II of the ADA.
8. Title II provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The ADA also requires public entities to “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7).
9. As a result of its investigation, the United States has determined that:
   1. In 2010, Complainant Mr. M applied to the New Jersey Medical School and the School of Osteopathic Medicine for enrollment in the fall 2011.¹ On November 8, 2010, Mr. M received an offer of admission from the New Jersey Medical School, which he accepted.
   2. In mid-March 2011, Mr. M submitted mandatory health and immunization records to the New Jersey Medical School indicating that he has Hepatitis B. After being contacted by an admissions officer, Mr. M reiterated that he has Hepatitis B.
   3. On April 25, 2011, Mr. M received a letter from the Medical School rescinding his admission due to his Hepatitis B.
   4. On or about May 11, 2011, Mr. M received an acceptance letter from the School of Osteopathic Medicine. He accepted the offer and submitted his acceptance forms, with a $100.00 tuition deposit, to the School of Osteopathic Medicine which were received on 5/25/11.
   5. Between May 13, 2011, and June 21, 2011, Mr. M contacted the New Jersey Medical School four times to appeal the Medical School’s rescission of his admission.
   6. On June 21, 2011, the New Jersey Medical School informed Mr. M that it would agree to consider a written request from Mr. M in which he would seek a one-year deferral without a guarantee that he would be admitted the following year.
   7. By letter dated June 24, 2011, the School of Osteopathic Medicine contacted Mr. M and offered the same deferral conditions as the New Jersey Medical School.
   8. In fall 2010, Mr. C applied for admission to the School of Osteopathic Medicine, and on October 18, 2010, Mr. C was placed on the wait list for fall 2011 admission.
   9. On June 22, 2011, Mr. C received a call from the School of Osteopathic Medicine informing him that he was accepted for fall 2011 admission; the School offered Mr. C a $16,000 scholarship over four years. Mr. C accepted the offer and submitted his acceptance forms which were received June 30, 2011.
   10. On July 8, 2011, the School of Osteopathic Medicine Director of Student Health called Mr. C to discuss his Hepatitis B blood test results. She requested additional blood tests and stated she could not comment on his acceptance. On the same day, the Director of the School of Osteopathic Medicine’s Problem-Based Learning (PBL) curriculum sent a letter to Mr. C accepting him into the PBL curriculum.
   11. On July 20, 2011, Mr. C received a letter from the School of Osteopathic Medicine that rescinded his admission and offered him the same one-year deferral possibility as offered to Mr. M.
10. The UMDNJ responds as follows:
    1. In April 2011 and July 2011, the UMDNJ convened its standing HBV Committee, consisting of administrators from the UMDNJ and its three medical schools, as well as an infectious disease specialist, a specialist in occupational medicine, and other medical experts, to consider whether, in light of their extremely high viral loads, Mr. M and Mr. C could safely fulfill the essential functions of a medical student without posing a direct threat to others.
    2. Among other things, the Committee specifically considered Mr. M’s and Mr. C’s viral loads and levels of infectivity, the risk of transmission, the health and welfare of Mr. M and Mr. C., the applicants’ expected clinical education and expected participation in clinical care at the New Jersey Medical School and the School of Osteopathic Medicine, and concerns relating to patient safety.
    3. Based upon the medical information presented, the Committee determined that Mr. M and Mr. C were highly infectious and, as such, they posed a direct threat to the health and safety of others.
    4. The Committee’s conclusion that the students posed a direct threat to others, however, was based upon the misimpression that students were required to perform “exposure-prone invasive procedures” (as defined by the then-current Centers for Disease Control and Prevention (CDC) Guidelines and the Society for Healthcare Epidemiology of America (SHEA) Guidelines) in order to graduate from the New Jersey Medical School and the School of Osteopathic Medicine.
    5. Based upon this understanding, coupled with its good faith, though erroneous, determination that Mr. M and Mr. C posed a direct threat to the health and safety of others, the Committee determined that Mr. M and Mr. C could not perform the essential functions of the curricula of the New Jersey Medical School and School of Osteopathic Medicine, and that no reasonable modification would mitigate the risk while their viral loads were so high. Accordingly, the UMDNJ rescinded the complainants’ acceptances.
    6. After one of the complainants objected to the rescission, the Committee agreed to offer both Mr. M and Mr. C a one-year deferral, with the possibility of being admitted the following year. The Committee’s hope was that with appropriate medical treatment, Mr. M and Mr. C’s viral loads would decrease to the point where they would no longer pose a direct threat to the health and safety of others.
11. During all relevant periods of time, neither the New Jersey Medical School nor the School of Osteopathic Medicine actually required that its students perform exposure-prone invasive procedures. Moreover, neither the New Jersey Medical School nor the School of Osteopathic Medicine currently requires that its students perform Category I procedures, as defined by the Centers for Disease Control and Prevention in Exhibit A, “Updated CDC Recommendations for the Management of Hepatitis B Virus-Infected Health-Care Providers and Students” (July 6, 2012) (“Updated CDC Recommendations”), in order to graduate.
12. The United States has determined that the UMDNJ discriminated against the complainants by excluding them from participation in and denying them the benefits of services, programs, and activities of the UMDNJ on the basis of disability. 42 U.S.C. §12132. The United States has further determined that because the complainants would not be required to perform exposure-prone invasive procedures as a condition of graduating, the UMDNJ could not show that complainants posed a direct threat to the health or safety of others.
13. While the UMDNJ denies liability for any alleged violation of a statute, regulation, or otherwise, the parties agree to undertake the actions set forth below.

ACTIONS BY THE UMDNJ

14. The UMDNJ shall not exclude persons with disabilities, including persons with Hepatitis B, from participation in, or deny them the benefits of, services, programs, or activities of the UMDNJ in violation of the ADA, 42 U.S.C. § 12132, and its implementing regulation, 28 C.F.R. Pt. 35. The UMDNJ shall not discriminate against the complainants, or retaliate against them in any way, for opposing any act or practice that is unlawful under the ADA or because they participated in any way in the United States’ investigation or resolution of this matter. 42 U.S.C. § 12203.
15. An accepted applicant or student who has Hepatitis B shall not, by reason of such disability, be excluded from participation in or be denied the benefits of the UMDNJ’s services, programs, or activities. Applicants with Hepatitis B who are accepted to the UMDNJ shall be permitted to matriculate regardless of their viral load, subject to the restrictions described herein.
16. As recommended by the Updated CDC Recommendations, UMDNJ students who have Hepatitis B with viral loads below the 5,000 genome equivalents per milliliter of blood threshold, as ascertained by required testing, shall be permitted to engage in Category I procedures (as defined by the Centers for Disease Control and Prevention) at the UMDNJ without restriction as part of their coursework or clinical work. Students who have Hepatitis B with viral loads of 5,000 or more may be prohibited from engaging in Category I procedures unless or until their viral loads are shown to be less than 5,000 genome equivalents per milliliter of blood threshold. Students whose viral loads are 5,000 or more shall not face any adverse action for refraining from engaging in Category I procedures.
17. To the extent a student’s participation in Category I procedures is restricted under Paragraph 16, the UMDNJ shall provide notice of such restrictions (without disclosing the nature of the student’s medical condition) to all supervising and attending physicians and staff who are on a need-to-know basis and shall ensure that such restrictions do not adversely affect the student’s grade or evaluation of academic or clinical performance. Any information provided to supervising and attending physicians and staff pursuant to this Paragraph shall be treated as confidential.
18. The UMDNJ shall follow the CDC’s recommendations, contained in Attachment A, regarding the notification of a student’s Hepatitis B status to a patient.
19. The UMDNJ shall inform all accepted applicants and students who have Hepatitis B of the possibility that the restrictions identified in Paragraph 16 may be imposed and shall encourage such students to seek treatment.
20. The UMDNJ shall include a notice on its website and application form that states: “The UMDNJ is committed to complying with the requirements of the Americans with Disabilities Act.”
21. The UMDNJ has offered the complainants the opportunity to enroll at the UMDNJ under the same terms and conditions under which they were originally accepted, without requiring such applicants to re-apply for admission or to pay any fees or costs associated with their admission that they already paid in connection with their 2011 application. Mr. M accepted that offer and enrolled in the New Jersey Medical School in August 2012. Mr. C shall be permitted to enroll in the School of Osteopathic Medicine in August 2013 pursuant to his request for a one-year deferral. The UMDNJ shall not modify the terms of or rescind the offer of admission made to Mr. M or Mr. C in any way that violates the terms of this Agreement.
22. The UMDNJ shall pay Mr. C the amount of $20,000 and provide him with $17,500 in tuition credits. The UMDNJ shall pay Mr. M. the amount of $17,500 and provide him with $20,000 in tuition credits. The UMDNJ shall make such payments and apply such tuition credits to the semester commencing in the Fall of 2013, within thirty (30) days of receiving from each complainant a signed Release of Claims, which is attached as Exhibit B
23. The UMDNJ shall post the Notice attached as Exhibit C on its website in an accessible format and post a copy of such Notice in appropriate, conspicuous locations throughout the Medical School and School of Osteopathic Medicine. The UMDNJ will update the Notice, including the contact information contained therein, as necessary, and will provide copies to any person upon request.
24. The UMDNJ shall post the procedures contained in Paragraphs 15 through 19 in the same manner as set forth in Paragraph 23.
25. Within ninety (90) days of the effective date of this Agreement, and at the beginning of each academic year for the duration of this Agreement, the UMDNJ shall provide training on the obligations under this Agreement to all of the employees, agents and contractors at the New Jersey Medical School and the School of Osteopathic Medicine who have responsibilities related in any way to the determination of whether: (1) an admitted applicant will be refused matriculation, or will be restricted from performing coursework or clinical work, on the basis of disability; and/or (2) a student with a disability will be granted a reasonable modification.
26. Within six (6) months of the effective date of this Agreement, and on August 1 of each subsequent year for the duration of this Agreement, the UMDNJ shall provide the Department with a report that indicates which of the actions required under this Agreement have been taken. The report shall include copies of any letters or checks sent to the complainants, photographs of notices posted, website addresses of notices posted on the UMDNJ’s website, the attendance sheet(s) for any trainings (including the names of attendees, their titles, and the date(s) of such training(s)), and any other documents that demonstrate the UMDNJ’s compliance with the terms herein. For the duration of this Agreement, in the event that an applicant or student who is known by the UMDNJ to have Hepatitis B is not permitted to enroll or matriculate, is restricted in performing coursework or clinical work, is refused a reasonable accommodation, or is disciplined in any way due to their Hepatitis B, the UMDNJ shall notify the United States within ten (10) days of such action.

MISCELLANEOUS PROVISIONS

27. In consideration for this Agreement, the United States will not institute any civil action alleging discrimination under the ADA based on the allegations raised in DJ#s 204-48-279, 204-48-280, except as provided in paragraph 28 below.
28. The United States may review the UMDNJ’s (or its successor in interest’s) compliance with this Agreement or title II 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 the UMDNJ (or its successor in interest), and the parties will attempt to resolve the concerns in good faith. The United States will give the UMDNJ (or its successor in interest) 30 days from the date it provides notice of any breach of this Agreement to cure that breach. If the United States is unable to reach a satisfactory resolution of the issue(s) raised within 30 days of the date that it provides notice to the UMDNJ (or its successor in interest), it may institute a civil action in the appropriate United States District Court to enforce this Agreement or title II of the ADA against the party or parties failing to comply with this Agreement after the notice and cure periods have expired.
29. Failure by the United States to enforce any of the provisions of this Agreement shall not be construed as a waiver of its right to do so with regard to other provisions of this Agreement.
30. 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 the UMDNJ (or its successor in interest) 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.
31. This Agreement shall be binding on the UMDNJ, including all principals, agents, executors, administrators, representatives, employees, successors in interest, beneficiaries, and assignees.
32. A signatory to this document in a representative capacity for the UMDNJ represents that he or she is authorized to bind the UMDNJ to this Agreement.
33. This Agreement constitutes the entire agreement between the United States and the UMDNJ on the matters raised herein, and no other 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, shall be enforceable. This Agreement can only be modified or amended by mutual written agreement of the parties.
34. 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 Hepatitis B. Nothing in this Agreement changes the UMDNJ’s obligation to otherwise comply with the requirements of the ADA.
35. A copy of this Agreement or any information contained in it may be made available to any person by the United States.
36. This Agreement does not constitute an admission by the UMDNJ of any violation of a statute, regulation, or otherwise.

EFFECTIVE DATE/TERMINATION DATE

37. The effective date of this Agreement is the date of the last signature below.
38. The rights and obligations of the parties shall be for four years from the effective date of this Agreement.