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

III. STRUCTURAL MODIFICATIONS TO WHC BUILDINGS AND FACILITIES

A. Accessible Patient Room.

For purposes of this Agreement, an “Accessible Patient Room” must comply in all respects with the ADA Accessibility Standards (the “ADA Standards”) for new construction in effect at the time the room is renovated or constructed. The current ADA Standards are at 28 CFR §36.406 and Part 36, App. A. All Accessible Patient Rooms must: (i) contain an accessible toilet room; (ii) contain or have access to an accessible shower, consistent with the amenities provided in adjacent patient rooms; and (iii) contain and/or have access to all other amenities provided in or available to patients occupying adjacent rooms. All references to Accessible Patient Rooms herein shall be understood to refer to Accessible Patient Rooms as defined in this paragraph. DOJ may approve certain rooms as Accessible Patient Rooms that do not fully comply with the ADA Accessibility Standards.

B. Modifications to Patient Rooms and Restrooms.

1. Group 1. During the first 24 months following the Effective Date of this Agreement, WHC will modify the 23 existing patient rooms listed immediately below to create 23 fully compliant Accessible Patient Rooms. These rooms will be: 2E: 1, 5, 9, 11, 15, IMC1, IMC3; 4D: 27, 31; 5C: 7, 11, 19, 28; 5F 2; 2NE 10; 2NW 10; 3NE 10 (lead lined); 3NW 10; 4NE 10; 4NW 10; 5NW: 5, 8; 5NE 11. Notwithstanding the foregoing, because of space limitations in Rooms 5C 7, 11, and 19, these rooms will not be fully compliant with the ADA Standards because a patient will be able to transfer to the bed in each such room from one side of the bed only. The schedule for modifying these 23 rooms shall be as follows:

(a) During the first 12 months following the Effective Date of this Agreement, modifications to 12 of the Group 1 rooms will be completed, including, but not limited to, 2NE 10; 2NW 10; 3NE 10; 3NW 10; 4NE 10; and 4NW 10.

(b) During months 13 through 24 following the Effective Date of this Agreement, modifications to the remaining 11 rooms in Group 1 will be completed.

(c) Based on site visits to WHC, the parties to this Agreement believe that fully compliant patient rooms can be created within the existing footprints of the patient rooms listed in Paragraph III.B.1 above (except for Rooms 5C 7, 11, and 19). However, notwithstanding the language in Paragraph III.B.1. above, if WHC cannot create a fully compliant Accessible Patient Room, as defined in Paragraph III.A. above, within the existing footprint of the patient room because of space constraints, then WHC shall be obligated only to make the room as accessible as possible within the existing footprint. If WHC believes it cannot make a room specified in Paragraph III.B.1. above a fully compliant Accessible Patient Room because of such space constraints, WHC must provide drawings demonstrating why ADA compliance is not possible and seek approval from DOJ for its alternate design plan.

2. Group 2. During the 3rd, 4th and 5th years following the Effective Date of this Agreement, WHC will modify 12 additional existing patient rooms, at least 6 of which shall be located in WHC’s North Addition, to create 12 additional fully compliant Accessible Patient Rooms, regardless of cost. If WHC decides to locate any of the 6 remaining patient rooms in Group 2 in areas other than the North Addition, WHC agrees to use its best efforts to locate these rooms in medical specialty units that do not, at that time, have Accessible Patient Rooms. None of these 12 additional Accessible Patient Rooms shall be located in any of WHC’s maternity units. WHC shall complete the modifications for at least one Accessible Patient Room required by this paragraph within the 3rd year following the Effective Date of this Agreement.

3. Group 3. During the 4th and 5th years following the Effective Date of this Agreement, WHC shall expend at least $100,000 per year on direct construction and renovation costs for upgrading additional patient rooms (other than those rooms addressed in Paragraphs III.B.1. and 2., above) toward achieving the goal of having 10% of the total number of WHC’s inpatient hospital rooms (excluding ICU facilities) be Accessible Patient Rooms. At the beginning of each of these years, WHC will review with DOJ its plans for the expenditure of these funds during the year toward achieving additional patient room accessibility. If the expenditure of these funds is insufficient to achieve full ADA accessibility of additional patient rooms, WHC shall use its best efforts, in consultation with DOJ, to maximize patient room accessibility to the greatest extent possible by utilizing such funds.

4. New Tower Rooms. WHC has informed the parties that it is considering the construction of a new hospital tower at WHC, which will contain additional medical facilities including, inter alia, inpatient hospital rooms. If, within 5 years of the Effective Date of this Agreement, WHC receives notice from MedStar that funds have been committed and all necessary approvals have been obtained from MedStar to construct a hospital tower that will include any non-ICU patient rooms (the “Tower”), as evidenced by a MedStar Board Resolution or its equivalent, it shall immediately so notify DOJ and ERC in writing. Such notice shall be accompanied by evidence of MedStar’s approval in the form of a Board Resolution or similar corporate document, and the following terms shall apply:

(a) The Term of this Agreement, as more particularly set forth in Paragraph VIII.R. below, shall be extended to the date that the Tower construction is complete, with respect to matters concerning construction of the Tower only;

(b) WHC shall make twenty-five percent (25%) of the non-ICU patient rooms in the new Tower, or 25 non-ICU patient rooms, whichever is greater, Accessible Patient Rooms;

(c) In the event that more than one medical specialty unit is constructed within the Tower, WHC shall disperse the Accessible Patient Rooms constructed in the Tower among the various medical specialty units within the Tower;

(d) Before commencing construction of the Tower, WHC will provide DOJ a copy of the architectural plans for the Accessible Patient Rooms in the Tower prior to such plans becoming final. Within 15 business days of its receipt of such plans, DOJ shall identify any elements of the architectural plans for the patient rooms that do not comply with the ADA Standards. Any violations identified by DOJ must be limited to issues of design compliance with the ADA Standards for patient rooms. DOJ’s review of the plans, as described above, shall not be construed to be an approval of WHC’s design for the Tower with respect to other standards or elements of the building, other than the patient rooms. WHC will consider any proposed revisions and make appropriate changes in good faith. If the parties cannot agree on the recommendations, they shall follow the procedure set out in Paragraph VIII.D. below;

(e) Upon completion and final inspection of the Tower, WHC shall provide DOJ with a copy of the Certificate of Occupancy for the Tower or its equivalent, and copies of all documents required to demonstrate that the Tower has been completed and received all approvals needed to begin admitting and treating patients. WHC shall also provide the written certification of the project architect that the Accessible Patient Rooms in the Tower comply with the ADA Standards and have been constructed in a manner consistent with the plans previously approved by DOJ. The certification shall include “as built” drawings of the non-ICU patient rooms in the Tower. The drawings shall be certified by WHC’s architect as true, complete, and correct.

5. Relief from Group 3 Room Obligation. If WHC provides DOJ with the notice required by Paragraph III.B.4. above within 36 months following the Effective Date of this Agreement, WHC shall be relieved of its obligations with respect to the Group 3 Rooms; provided, however, that if construction on the Tower fails to commence within the earlier of: (i) 36 months of such notice; or (ii) two months prior to the expiration of the Term of the Agreement, WHC’s obligations with respect to the Group 3 Rooms shall be immediately reinstated and WHC shall be obligated to spend $100,000 per year on direct construction costs for renovations to patient rooms for the next two years, commencing on the date that the earlier of events (i) or (ii) above occurs. In such event, the Term of this Agreement, in its entirety, shall be extended until the date WHC fulfils its obligations under Paragraph III.B.3. above.

C. Survey of WHC.

1. Architectural Survey Tool. Within 30 days of the appointment and DOJ approval of the ADA Architectural Expert, as set forth in Paragraph II.E. above, WHC shall submit a survey tool prepared by the ADA Architectural Expert on which to collect the information to be gathered during the architectural survey, as described in further detail in Paragraph III.C.2. below, to DOJ for approval, which approval shall not be unreasonably withheld. The survey tool shall be designed to identify, in reasonable detail, elements that do not conform with the ADA Standards. DOJ shall approve or make recommendations for revisions to the survey tool within 15 days of receiving the survey tool. If DOJ recommends any revisions, WHC shall consider the proposed revisions and make appropriate changes in good faith. If the parties cannot agree on the survey tool, they shall follow the procedure set out in Paragraph VIII.D. below.

2. Completion of Architectural Survey. The ADA Architectural Expert shall complete a survey of all areas in which WHC provides services to the public (whether in the main hospital, POB, or other buildings), including: (i) all areas where WHC patients, whether inpatients or outpatients, are treated or receive medical services of any nature including diagnostic services (excluding inpatient bedrooms); (ii) all areas where WHC patients and their guests or other visitors transact business with WHC, including patient registration and financial transactions; and (iii) all other areas open to patients and the public, including, but not limited to, common areas, cafeterias, gift shops, chapels, counseling rooms, classrooms, parking garages, and public toilet rooms. The requirements of this paragraph apply to the POB and other buildings to the extent that WHC owns or has ownership interest in such structures, or is a tenant therein. WHC shall ensure that all original survey instruments completed while conducting the survey are retained during the Term of this Settlement Agreement, to be made available to DOJ, upon request.

3. Architectural Survey Report. Within 120 days of DOJ’s approval of the survey tool, the ADA Officer, in consultation with the ADA Architectural Expert, shall write and submit to DOJ a report of the survey providing, for each element: (a) a description of each element that deviates from the ADA Standards for Accessible Design, 28 CFR Part 36, App. A; (b) a description of what, if any, readily achievable barrier removal is necessary to make the element accessible to individuals with disabilities, including mobility disabilities (e.g., the modification of counter heights, signage, door width, accessible routes); and (c) a plan for removing each barrier identified or a proposed readily achievable alternative to barrier removal, as described immediately below (the “Barrier Removal Plan”). The Barrier Removal Plan shall provide a description of the remedial action to be taken to remove each barrier and set forth a proposed schedule. For any barrier whose removal WHC determines is not readily achievable and/or will not make WHC’s services more usable for individuals with disabilities, WHC shall determine which readily achievable alternative to barrier removal would be appropriate to ensure access to the services and explain the reason for its determination. Any such alternatives to barrier removal shall be included in the written policies and procedures required to be provided to DOJ pursuant to Section V. DOJ shall approve or offer revisions to the Barrier Removal Plan within 30 days of receiving the report. If the parties cannot agree on the list of barriers to be removed or the schedule for barrier removal, they shall follow the procedure set out in Paragraph VIII.D. below. Upon agreement, WHC shall immediately implement the Barrier Removal Plan in accordance with the schedule set forth therein.

4. Readily Achievable Barrier Removal Standard. For purposes of this Agreement, the readily achievable barrier removal standard, 28 CFR § 36.304, will define what architectural changes are required by WHC as a result of the survey set forth in Paragraph III.C. The readily achievable barrier removal standard applies for purposes of this Agreement only, and does not reflect a determination by DOJ or the Plaintiffs that it is the correct standard, in contrast to the new construction or alterations standard, to apply in any other legal context for any particular area of WHC.

D. Reporting Requirements.

1. Updates. DOJ may, from time to time, request WHC to provide updates on the progress of its modifications, and/or copies of architectural plans, until such time as WHC notifies DOJ that such modifications have been completed. Any such requests for updates shall be made in writing by DOJ to the ADA Officer and DOJ shall provide WHC with a reasonable time period, not to exceed 30 days, in which to respond to such requests.

2. Final Barrier Removal Report. Within 30 days of the last date on which barrier removal is required to be completed in accordance with the Barrier Removal Plan, WHC shall deliver to DOJ a Final Barrier Removal Report in which it shall certify to DOJ, in writing, that it has fulfilled all of its obligations under the Barrier Removal Plan (the "Final Report"). The Final Report shall set forth each of the barriers required to be removed pursuant to the Barrier Removal Plan and shall describe the steps WHC has taken to remove each barrier. The Final Report shall include “as built” drawings depicting the architectural changes required by the Barrier Removal Plan, to the extent they exist or are required for the particlar modification contemplated. The drawings shall be certified by WHC’s architect as true, complete, and correct. Upon its receipt of the certified Final Report, DOJ may request a site visit to verify that the required modifications have been made, as agreed. If the parties have agreed upon certain readily achievable alternatives to barrier removal, the Final Report shall include copies of all written policies and procedures setting forth such alternatives to barrier removal, which shall be certified as true, complete, and correct by WHC.