United States of America v. Washington Hospital Center - Settlement Agreement

I. BACKGROUND

A. On November 25, 2003, Dennis Christopher Butler, Rosemary Ciotti, George Aguehounde, Marsha Johnson (the “Individual Plaintiffs”), and The Disability Rights Council of Greater Washington commenced an action in the United States District Court for the District of Columbia against Washington Hospital Center, captioned Disability Rights Council et al. v. Washington Hospital Center, Case Number 1:03CV02434 (the “DRC/ERC Litigation”). The Plaintiffs in the DRC/ERC Litigation allege that Washington Hospital Center (“WHC”) discriminated against the Individual Plaintiffs by denying each of them the full and equal enjoyment of and access to its health care services and health care facilities, on the basis of their disabilities, in violation of Title III of the Americans with Disabilities Act, 42 U.S.C. §§12181 et seq. (the “ADA”), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.§ 794 (“Section 504”), and the District of Columbia Human Rights Act, D.C. Code §§ 1-2501 et seq., and that WHC’s alleged violations of law caused injuries to the Plaintiffs. WHC has denied all material allegations in the DRC/ERC Litigation.

B. WHC is a subsidiary of MedStar Health, Inc. (“MedStar”), a nonprofit corporation located at 5565 Sterrett Place, Columbia, MD 21044. WHC owns and operates a hospital and adjacent facilities at 110 Irving Street, NW, Washington, DC 20010; and operates services within the Washington Hospital Center Physicians Office Building (the “POB”), at 106 Irving Street, NW, Washington, DC 20010; however, WHC does not currently own the POB. As a private entity that owns and operates medical service establishments, WHC is a public accommodation covered by Title III of the ADA, 42 U.S.C. § 12181(6); 28 C.F.R. § 36.104.

C. Dennis Christopher Butler, Rosemary Ciotti, George Aguehounde, and Marsha Johnson are individuals with mobility disabilities, each of whom uses a wheelchair. Mr. Butler is an individual with quadriplegia and uses a power wheelchair that is operated by a sip and puff system. Ms. Ciotti has lupus and related neurological complications that require her to use a power wheelchair for mobility. Mr. Aguehounde has a spinal cord injury and uses a power wheelchair. Ms. Johnson uses a power wheelchair for mobility due to polio and post-polio symptoms. Each of these individuals is an individual with a disability within the meaning of the ADA.

D. The Disability Rights Council of Greater Washington (the “DRC”) was a nonprofit advocacy group with a direct interest in protecting the rights of individuals with disabilities, including those with mobility impairments. The Equal Rights Center (the “ERC”) is the DRC’s successor in interest, and is a nonprofit advocacy group organized to promote fair housing, fair employment, and equal access to public accommodations for all members of society without regard to race, color, religion, sex, disability, family status, national origin, or any federal, state, or local civil rights protected class, and equal opportunities for persons with disabilities, with respect to the use of public accommodations, transportation, and telecommunications facilities and services. On June 30, 2005, the DRC submitted Articles of Merger to the District of Columbia Department of Consumer and Regulatory Affairs, memorializing a merger of the DRC with ERC, a District of Columbia nonprofit corporation. On July 18, 2005, a Consent Motion for Substitution, pursuant to Federal Rule of Civil Procedure 25, was filed with the United States District Court for the District of Columbia, substituting ERC for the DRC in the DRC/ERC Litigation. An Order Granting Substitution was issued on July 19, 2005. The ERC and the Individual Plaintiffs are hereinafter collectively referred to as the “Plaintiffs.”

E. Title III of the ADA requires that a medical services entity provide individuals with disabilities, among other things, full and equal enjoyment of and access to its health care services and health care facilities; reasonable modifications to its policies, practices, and procedures when necessary to make health care services fully available to individuals with disabilities; and auxiliary aids and services. Title III also requires that the entity remove architectural barriers where such removal is readily achievable and comply with the architectural requirements for new construction and alterations.

F. The Plaintiffs’ allegations in the DRC/ERC Litigation include, among other things, not being placed in an accessible inpatient room; being examined on inaccessible equipment which required them to be lifted onto an examination table; having such lifting performed in an improper manner; having to wait significantly longer than other patients for an outpatient exam because the examination room with an accessible table was occupied; not receiving adequate inpatient services required as a result of a disability, such as assistance with eating, drinking and having bowel movements; and not timely receiving accessible equipment needed as an inpatient, such as an accessible call button and telephone. There is no allegation in the DRC/ERC Litigation of any medical malpractice on the part of WHC, but rather the above allegations relate solely to claims that WHC violated Title III of the ADA, Section 504 of the Rehabilitation Act, and the District of Columbia Human Rights Act.

G. In addition to the DRC/ERC Litigation, the Plaintiffs filed an administrative complaint with the United States Department of Justice (“DOJ”) making the same allegations (the “DOJ Complaint”). DOJ, which is not a party to the DRC/ERC Litigation, conducted an investigation of the complaint it received against WHC under the authority granted under Section 308(b)(1) of the ADA, 42 U.S.C. § 12188(b)(1). The Attorney General of the United States is authorized, pursuant to 42 U.S.C. § 12188(b)(1)(B) of the ADA, to bring a civil action under Title III to enforce the ADA in any situation where a pattern or practice of discrimination is believed to exist or a matter of general public importance is raised.

H. After investigating, DOJ concluded that WHC had violated certain provisions of the ADA by denying equal access to medical services for individuals with disabilities. WHC has denied, and continues to deny, that it has violated the ADA.

I. The parties to the DRC/ERC Litigation, after good-faith negotiation, have determined that the DRC/ERC Litigation should be resolved through a comprehensive Settlement Agreement (“Agreement”), the terms of which are set forth fully herein.

J. DOJ, having participated in the negotiations among the parties to the DRC/ERC Litigation, and having conducted its own investigation of the matters addressed by this Agreement, believes that the public interest will be served by entering into this Agreement, the terms of which are set forth fully herein.

K. In order to avoid unnecessary and costly litigation, and not as an admission of liability, the parties have agreed to resolve the DRC/ERC Litigation and the DOJ Complaint as set forth below.

L. The Plaintiffs and DOJ recognize that WHC has cooperated fully in resolving alleged disputes and has demonstrated a strong commitment to providing equal access to its services and facilities for persons with disabilities, including the goals of ensuring that inpatients with mobility disabilities will be placed in accessible rooms; that patients with mobility disabilities undergoing examinations will be examined in an appropriate manner by trained personnel; that accessible equipment (such as adjustable exam tables, Hoyer lifts, wheelchair scales, and accessible call buttons) will be available to patients who need it; and that additional policies and training will be implemented to ensure that individuals with disabilities are not discriminated against on the basis of disability in the full and equal enjoyment of the services, facilities, and other accommodations provided by WHC and have an opportunity to benefit from the medical services provided by WHC that is equal to the opportunity afforded other individuals. The parties recognize and agree that this statement of the goals of this Agreement is not intended to enlarge or otherwise modify the specific obligations set forth in this Agreement.