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

VIII. IMPLEMENTATION AND ENFORCEMENT

A. ERC Release.

As a condition of WHC’s willingness to enter into this Agreement, and in consideration for the agreements of the parties contained in this Agreement, including the Settlement Payment, the Plaintiffs, with the intention of binding themselves, their respective heirs, beneficiaries, trustees, administrators, executors, assigns and legal representatives (collectively, the “Plaintiff Releasors”), hereby release, waive and forever discharge and hereby acknowledge full accord and satisfaction of, any and all claims, demands, causes of action, and liabilities of any kind whatsoever (upon any legal or equitable theory, whether contractual, common law or statutory, under federal, state or local law or otherwise), arising from facts or events that have taken place prior to or on the date of full and complete execution of this Agreement, whether known or unknown (with the exception of currently unknown claims unrelated to claims of disability discrimination), asserted or unasserted, by reason of any act, omission, transaction, agreement or occurrence that the Plaintiff Releasors ever had or now have against WHC or its successors, assigns, parents, subsidiaries, directors, officers, employees, or agents up to and including the date of the execution of this Agreement. Subject to and without limiting the generality of the foregoing, the Plaintiff Releasors hereby release and forever discharge WHC from:

1. Any and all claims relating to or arising from the Individual Plaintiffs’ treatment or any acts or omissions in connection herewith by WHC which form the subject of the Complaint filed by the Plaintiffs in the DRC/ERC Litigation, or which treatment, acts or omission could have been raised in the DRC/ERC Litigation;

2. Violation of rights on the basis of disability under any federal, state or local statute or ordinance, public policy or the common law, including, without limitation, any and all claims under Title III of the Americans with Disabilities Act, 42 U.S.C. §§12181, et seq.; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794, and the District of Columbia Human Rights Act, D.C. Code §§1-2501 et seq., and as such laws have been or may be amended, which claims could have been raised in the DRC/ERC Litigation; and

3. Any and all claims for monetary recovery for disability discrimination, as described in Paragraph VIII.A.2. above, including, without limitation, attorneys’ fees, experts’ fees, medical fees or expenses, costs and disbursements and the like, which could have been raised in the DRC/ERC Litigation.

B. ERC and Future Actions.

The Plaintiffs represent that they have not commenced or caused to be commenced, or participated, aided or cooperated in, any action, charge, complaint or proceeding of any kind (on their respective behalf and/or on behalf of any other person and/or on behalf of or as a member of any alleged class of persons) that is presently pending in any court or before any administrative, regulatory or investigative body or agency (whether public, quasi-public or private), against or involving WHC, other than this litigation and the related DOJ investigation. The Plaintiffs further represent that they will not participate, aid or cooperate in any such pending or future action, charge, complaint or proceeding relating to the facts which form the subject of this litigation, except pursuant to compulsory legal process or a court order, or except as necessary to enforce this Agreement. The Plaintiffs further agree that during the Term of DOJ’s Settlement Agreement, they will not commence, cause to be commenced, or participate in any action, charge, complaint or proceeding (on their respective behalf and/or on behalf of any other person and/or on behalf of or as a member of any alleged class of persons) alleging violations of Title III of the ADA by WHC, its parent, or any of its affiliates, subsidiaries or other related MedStar Health entities (listed on Exhibit B, which is attached hereto and hereby made a part of this Agreement) without first notifying such company, affiliate, subsidiary or entity of such allegations and providing it with no less than 90 days in which to respond to such notification. Additionally, Plaintiff ERC agrees that it will use its best efforts to encourage members who approach it for counseling and/or referral to legal counsel regarding any disability-related problems, concerns or complaints with WHC or any of its affiliates, subsidiaries, or other related MedStar Health entity, to provide no less than 90 days notice, as described above.

C. Closing of DOJ Investigation.

In consideration of, and consistent with, all the terms of this Agreement, the Attorney General agrees to refrain from filing a civil suit in this matter regarding all matters contained within this Agreement, except as provided in Paragraph VIII.G. and closes Complaint #202-16-120.

D. Dispute Resolution Process with DOJ.

If DOJ and WHC disagree about specific modifications to be made to facilities, barrier removal, equipment purchases, policies, or concerning any other topic about which the parties are required to come to an agreement, after following the procedures set out in Sections III, IV, V, and VI of this Agreement, as applicable, the parties shall meet and confer in a good-faith effort to resolve the disagreement. If the parties are unable to reach agreement after 90 days of good-faith negotiations they may, upon mutual agreement, utilize mediation. In conjunction with such mediation, only the provisions of this Agreement shall apply. If such negotiation and mediation fail to produce a timely resolution of the matter, then DOJ may use the procedure set out in Paragraph VIII.G. below.

E. Dispute Resolution Process with ERC.

If ERC and WHC disagree about specific modifications to be made to its facilities, policies, or any other topic about which the parties are required to come to an agreement, after following the procedures set out in Sections III, IV, and V of this Agreement, the parties shall meet and confer in a good-faith effort to resolve the disagreement. If the parties are unable to reach agreement after 60 days of good-faith negotiations they may utilize mediation. If such negotiation and mediation fail to produce a timely resolution of the matter, then ERC may use the procedure set out in Paragraph VIII.H. below.

F. Time Extensions.

With regard to any of the deadlines specified in this Agreement, any party, if it cannot meet the deadline specified, shall notify all other parties, at least 10 business days before the deadline, of the party’s inability to meet the deadline and the reason(s) why, and shall request an extension of time to a specific date. The other parties shall be reasonable in agreeing to extend deadlines and agree to a reasonable amount of time for the extension. If any deadline established by this Agreement falls on a weekend or a holiday, the deadline shall be extended to the next business day.

G. DOJ Compliance Review and Enforcement Procedure.

DOJ may review compliance with this Agreement at any time. If DOJ believes that this Agreement or any portion of it has been violated, it will so notify WHC in writing and it will attempt to resolve the issue or issues raised in good faith. If DOJ is unable to reach a satisfactory resolution of the issue or issues raised within 30 days of the date it provides notice to WHC, except with respect to matters previously negotiated and/or mediated pursuant to Paragraph VIII.D. above, for which no additional negotiation period is required, it may institute a civil action in federal district court to enforce the terms of this Agreement, or it may initiate appropriate steps to enforce Title III and Section 504 of the Rehabilitation Act.

H. ERC Enforcement Procedure.

If ERC believes that this Agreement or any portion of it has been violated, it will so notify WHC in writing and it will attempt to resolve the issue or issues raised in good faith. If ERC is unable to reach a satisfactory resolution of the issue or issues raised within 30 days of the date it provides notice to WHC, it may institute a civil action in federal district court seeking to enforce the terms of this Settlement Agreement.

I. DOJ Notice to WHC of Possible Violation.

If, during the Term of this Agreement, DOJ becomes aware of an alleged violation of Title III or Section 504 of the Rehabilitation Act by WHC with respect to matters not specifically covered by this Agreement, DOJ agrees to notify WHC of the alleged violation and permit WHC 60 days to resolve the matter through its internal processes or to provide an explanation as to why it believes the allegation is untrue. If WHC resolves the matter to the satisfaction of DOJ, DOJ agrees to refrain from undertaking further investigation against WHC on that matter.

J. Attorney Fees and Costs in Future Disputes between WHC and the ERC.

In disputes involving WHC and the ERC that are in the nature of an action that ERC could otherwise have brought as a claim under Title III of the ADA, e.g., for violation of new construction or alterations provisions or the failure to remove barriers, then notwithstanding which party brings the action, attorneys’ fees and costs will be awarded to the prevailing party in any such action as if 42 U.S.C. § 12205 applied and as if ERC were the plaintiff and WHC were the defendant. In any other action to enforce contractual commitments involving WHC, such as those involving reporting and record keeping, each side shall bear its own attorneys’ fees.

K. WHC Annual Reporting Requirements.

Twelve months after the Effective Date of this Agreement, and every year on the anniversary of the Effective Date thereafter until the expiration of this Agreement, WHC shall file a Compliance Report with DOJ and ERC, reporting on its compliance with the actions described in Sections II.B, III, IV, V, and VI above. The Compliance Report shall include: a listing of the types of additional equipment purchased and their locations; copies of new and revised policies; an outline of and the dates of the training provided pursuant to Section VI above; a description of the barrier removal completed; a current listing of Accessible Patient Rooms (including the medical specialty or specialties associated with each room and the number of Accessible Beds in each room); and copies of the PGSD Occurrence Reports, as described in Paragraph II.B above (to be included in the DOJ version only). WHC need not resubmit documents or reports previously provided to the parties. The Report shall be sent by overnight mail to DOJ and to ERC, as set forth in Paragraph VIII.T. below. The Compliance Report is in addition to specific reports required in other Sections of this Agreement, such as the architectural survey report, the equipment survey report, the certification concerning the completion of the Tower, and the final barrier removal report. All reports submitted pursuant to this Agreement must by certified by the ADA Officer as true, complete, and correct. The parties expressly agree that providing these reports and certifications is essential to the enforcement of this Agreement, and that a failure to provide the reports and certifications required by this Agreement constitutes a breach of this Agreement.

L. Enforcement in Part.

Failure by DOJ or ERC to enforce this entire Agreement or any of its provisions or deadlines shall not be construed as a waiver of DOJ’s or ERC’s right to enforce other deadlines and provisions of this Agreement.

M. Agreement Binding on WHC Successor.

This Agreement shall be binding on WHC, its agents, employees, transfers, and assigns. In the event WHC seeks to sell, transfer, or assign all or part of its interest in any facility covered by this Agreement, and the successor or assign intends on carrying on the same or similar use of the facility, as a condition of sale WHC shall obtain the written accession of the successor or assign to any obligations remaining under this Agreement for the remaining Term of this Agreement.

N. Effective Date.

The Effective Date of this Agreement is the date of the last signature below.

O. Entire Agreement.

This Agreement constitutes the entire agreement between DOJ and WHC 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 as between DOJ and WHC. This Agreement and the Supplemental Settlement Agreement constitute the entire agreement between ERC and WHC 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 these written Agreements, shall be enforceable as between ERC and WHC. A default under the Supplemental Settlement Agreement shall not constitute a default under this Agreement. This Agreement does not purport to remedy any other potential violations of the ADA or any other federal law. This Agreement does not affect WHC’s continuing responsibility to comply with all aspects of the ADA.

P. Confidentiality of WHC Information.

The parties acknowledge and agree that certain documents and information provided by WHC to the parties prior to the execution of this Agreement may contain confidential business information of WHC and that such documents and information, in whatever form, shall be maintained as confidential and used solely for purposes of administering and enforcing the provisions of this Agreement, with the exception that, with respect to documents provided to parties that comprise Individual Plaintiffs’ records of their treatment at WHC (“WHC Medical Records”), each Individual Plaintiff reserves the right to disclose his or her WHC Medical Records to third parties as he or she sees fit. WHC, however, agrees to maintain such WHC Medical Records as confidential. The parties further acknowledge that WHC, its agents, or its consultants shall provide documents and information subsequent to the execution of this Agreement that may contain confidential business information of WHC and that WHC shall endeavor to mark such documents as confidential or otherwise indicate to the parties receiving such information that the information is confidential. Neither DOJ nor ERC shall disclose such information (including that provided before the execution of this Agreement and after the execution of this Agreement, whether or not marked confidential) to any third party except as is reasonably necessary to administer or enforce the provisions of this Agreement or with the express consent of WHC. The parties acknowledge that among other things, “reasonably necessary,” as provided above, does not include disclosures of WHC information to the press or to the general public in the form or a press release. In the event DOJ or ERC receives a court-issued subpoena seeking the production of any documents or information deemed confidential under this provision, the recipient of such subpoena shall provide WHC notice and a copy of such subpoena and shall make its best efforts to do so within 5 business days of such receipt, and provide WHC an opportunity to protect its interests in court with regard to such subpoena. Beginning 60 days prior to the expiration of this Agreement, as set forth in Paragraph VIII.R.below, WHC may request that DOJ and ERC destroy or return to WHC (at WHC’s option) all documents and information remaining in their possession marked confidential pursuant to this provision, and all copies of same, and DOJ and ERC shall comply.

Q. Confidentiality of Plaintiffs’ Information.

The parties acknowledge and agree that all documents and information provided by Plaintiffs to the parties prior to the execution of this Agreement, including documents provided in discovery during the Litigation, contain confidential business information of ERC, confidential medical records of Individual Plaintiffs and/or other personal medical information of Individual Plaintiffs and that such information, in whatever form, shall be maintained as confidential. In the event WHC receives a court-issued subpoena seeking the production of any documents or information deemed confidential under this provision, the recipient of such subpoena shall provide counsel for Plaintiffs notice and a copy of such subpoena within 5 business days of such receipt, and provide Plaintiffs an opportunity to protect their interests in court with regard to such subpoena. Within 60 days following the expiration of this Agreement, WHC shall destroy or return to Plaintiffs (at Plaintiffs’ option) all documents and information marked confidential pursuant to this provision, and all copies of same, with the exception of WHC medical records for which WHC is otherwise entitled to retain copies.

R. Term of Agreement.

The Agreement shall remain in full force and effect for 5 years from the Effective Date of this Agreement; provided, however, that in the event WHC receives the approval to construct a new Tower, as set forth in Paragraph III.B.4 above, the Term of this Agreement shall be extended to the date the Tower is completed and DOJ receives the documentation and certification required by Paragraph III.B.4.(e) above (the “Completion Date”). If the Term of this Agreement is so extended, this Settlement Agreement shall remain in full force and effect until the Completion Date, except for the following paragraphs, which shall terminate on the date which is 5 years from the Effective Date: II.B., II.C., II.D., II.E., II.F., II.G., III.B.1, III.B.2, III.C., IV.B.1., IV.C., V., VI., and VII.

S. Section Titles and Headings.

Section titles and other headings contained in this Agreement are included only for ease of reference and shall have no substantive effect.

T. Notices.

All notices, demands, or other communications to be provided pursuant to this Agreement shall be in writing and delivered by fax or overnight mail to the following persons and addresses (or such other persons and addresses as any party may designate in writing from time to time):

1. For the Private Plaintiffs and ERC:

Jennifer R. Bagosy
Robert H. Cox
Howrey Simon Arnold & White
1299 Pennsylvania Ave., N.W.
Washington, DC 20004
Tel: 202.383.7182
Fax: 202.383.6610

Elaine Gardner
Washington Lawyers’ Committee for Civil Rights and Urban Affairs
11 Dupont Circle, N.W., Suite 400
Washington, DC, 20036
Tel: 202.319.1000 x131
Fax: 202.319.1010

Bruce K. Kahn
Executive Director
Equal Rights Center
11 Dupont Circle, N.W.
Washington, D.C. 20036
Tel: 202.234.3062
Fax: 202.234.3016

2. For WHC

James F. Caldas, President
Renee P. Landry, Vice President Support Services
110 Irving Street, N.W.
Washington, D.C. 20010
Tel: 202.877.3524
Fax: 202.877.9184

3. For the Department of Justice

Anne M. Pecht, Esq.
Amanda Maisels, Esq.
Trial Attorneys
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530-0001
Tel: 202.307.0663
Fax: 202.305.9775