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SETTLEMENT AGREEMENT
Metzler
et al. v. Kaiser Foundation Health Plan, Inc. et al.
This Settlement
Agreement is entered into and made effective on this __ day of March,
2001, by and between (a) Kaiser Foundation Health Plan, Inc. and Kaiser
Foundation Hospitals, California nonprofit corporations with offices at
1950 Franklin Street, Oakland, CA 94612, and (b) Plaintiffs, who are
individuals with disabilities.
Parties
The parties to this Settlement Agreement (hereinafter, “Agreement”) are the following:
Kaiser Foundation Health Plan, Inc. and Kaiser Foundation Hospitals (hereinafter, “Kaiser”); and
John Metzler, Johnnie Lacy, and John Lonberg (hereinafter, “Plaintiffs”).
Kaiser and Plaintiffs
are referred to herein as “the parties.”
Recitals
Whereas, Kaiser Permanente—California Division is a nonprofit health maintenance organization in California;
Whereas, Kaiser Permanente—California Division is comprised of Kaiser Foundation Health Plan, Inc., Kaiser Foundation Health Plan, The Permanente Medical Group, Inc., and the Southern California Permanente Medical Group;
Whereas, Kaiser Permanente—California Division is both a health plan and a direct provider of health care services;
Whereas Kaiser owns, leases, and/or operates 26 hospitals and 120 medical office buildings in California;
Whereas, Plaintiffs, who are persons with disabilities, brought an action, on behalf of themselves and the general public, against Kaiser, in the Superior Court for the State of California, Alameda County, Case No. 829265-2, alleging that Kaiser fails to provide people with mobility disabilities full and equal access to Kaiser Permanente—California Division’s health services and facilities, in violation of California Civil Code §§ 51, et seq., 54, et seq., and 3345, California Government Code §§ 11135, et seq., and the regulations promulgated thereunder, and Section 17200 of the California Business and Professions Code;
Whereas Kaiser denies any and all liability to Plaintiffs and denies that it has violated any laws pertaining to access for people with disabilities;
Whereas, the parties are committed to ensuring that people with disabilities have full and equal access to Kaiser facilities and services;
Whereas, the parties wish to avoid the expenses and risks of costly and time-consuming litigation; and
Whereas, the parties agree that disabled persons who use Kaiser facilities and seek Kaiser health services will be better served by implementation of the provisions set forth in this Agreement than by further pursuit of litigation;
Therefore, in consideration of the mutual covenants and agreements contained herein, the parties have entered into this Agreement.
Definitions
The
parties agree to work together in good faith to arrive at mutually
agreed upon definitions for the following terms. This section
is not a material term of this Agreement.
Access Features
Access Laws
Accessible Medical Equipment (including high-priority accessible medical equipment)
[Clarify that includes imaging equipment as well.]
Access Plan
ADAAG
Advisory Committee
Barriers (including high-priority barriers)
Executive Sponsor Oversight Team
Barrier Removal
Facilities
Members
Plaintiffs
Plaintiffs’ Counsel
Program Manager
Providers
Service Area
Technical Resource Work Groups
Title 24
Agreement
I.
Coordination and Oversight of Implementation of Access Plan
1. Kaiser will appoint an Access Coordinator
(or Coordinating Committee) with appropriate expertise in ensuring
health care access for people with disabilities. The appointment of the
Access Coordinator (or Coordinating Committee) shall be subject to the
approval of Plaintiff’s Counsel, provided that such approval shall not
be unreasonably withheld. The Access Coordinator (or Coordinating
Committee) will oversee the implementation and maintenance of the
Access Plan outlined herein. The Access Coordinator (or Coordinating
Committee) shall be appointed within one year of the effective date of
this Agreement. The parties contemplate that the Access Coordinator (or
those comprising the Coordinating Committee) will be an existing or
future Kaiser employee. If an Access Coordinating Committee serves the
functions of the Access Coordinator, it shall be comprised of no more
than three members and shall have a chairperson who will be responsible
for ensuring that the Access Coordinating Committee carries out its
responsibilities.
2. Until the Access Coordinator
(or Coordinating Committee) is in place, Kaiser’s Program Manager will
oversee Kaiser’s initial efforts to identify and remove barriers and
increase access in accordance with this Agreement. Subject to the
supervision of the Executive Sponsor Oversight Team and the Advisory
Committee established by Kaiser, the Program Manager will consult and
coordinate with outside access specialists (as provided for herein) and
Kaiser’s technical resource work groups and will oversee the
administration of the Access Plan outlined herein. For the first year
following the effective date of this Agreement, the Program Manager
shall provide Plaintiffs’ Counsel with comprehensive reports every two
months regarding the implementation of the Access Plan.
3. With input from Plaintiffs’
Counsel, Kaiser will establish a system for receiving and promptly
addressing complaints regarding access problems. The Access Coordinator
(or Coordinating Committee) shall oversee this system. Until a
permanent system is in place, the Program Manager will oversee a
coordinated response to complaints about access problems. The procedure
for reporting access problems will be clearly communicated in writing
to Kaiser members and staff.
4. The parties will develop a
mechanism for receiving and responding to ongoing input regarding
access from Kaiser members with disabilities.
Access Plan
II. Model
Facilities
5. Kaiser will designate
the Kaiser Permanente Medical Center in San Francisco, California and
the Kaiser Permanente Medical Center in Riverside, California as “Model
Facilities.” In addition to being the starting point for
architectural-barrier and inaccessible-medical-equipment surveys,
barrier removal, and accessible-medical-equipment installation, the
model facilities will serve as laboratories for the development of
effective policies, procedures, and programs to increase access and
improve the delivery of health services for people with disabilities
throughout Kaiser’s health care system in California. At the model
facilities, during a pilot period, running from the effective date of
this Agreement until July 1, 2002, Kaiser, with the assistance of
Plaintiffs’ Counsel and the Access Policy Consultant(s) and/or work
group(s) provided for herein, will explore how Kaiser can better
provide and manage care for people with disabilities. Thereafter,
effective aspects of the model programs will be replicated throughout
Kaiser’s California system. The development of these pilot programs at
the model facilities will not preclude systemwide implementation of
improved policies, procedures, and programs that should be put in place
more quickly and that do not require initial study at the model
facilities.
III.
Architectural Access
6. Kaiser will retain a
jointly-selected “Architectural Access Specialist,” with expertise in
identifying and remedying architectural barriers, to oversee a
systemwide evaluation of Kaiser facilities in California
(“California-wide”). The Architectural Access Specialist will create an
evaluation plan; supervise the survey of Kaiser facilities, using
Kaiser Facilities Department staff to the maximum extent feasible; and
prepare, or assist in the preparation of, a final report and interim
reports identifying barriers and making recommendations for improving
access. The reports should include cost estimates and a suggested order
of priorities and reasonable time-lines for the removal of barriers.
Priority will be placed on timely and orderly removal of the most
significant (“high-priority”) barriers.
a. The Architectural Access
Specialist will begin with a comprehensive survey of the two model
facilities and a report of findings and recommendations regarding the
model facilities. This survey will begin by March 1, 2001, and will be
completed within ninety (90) days. The Architectural Access
Specialist’s report regarding the model facilities, including
recommendations for barrier removals and suggested prioritization of
barrier removals, shall be completed within ninety (90) days of the
survey’s completion. Upon its completion, this report shall be provided
to Plaintiffs’ counsel and the third-party Facilitator (provided for in
¶¶ 24-25), but shall otherwise remain confidential. Based on
the Architectural Access Specialist’s report and recommendations,
within sixty (60) days of its receipt, the parties will develop a
reasonable action plan and time-line to remedy the barriers identified
at the model facilities. High-priority barriers will be removed at the
model facilities within two years of the effective date of this
Agreement.
b. Based on the survey of the
model facilities, a review of the survey and barrier-identification
work already done by Kaiser, and an objective assessment of Kaiser’s
internal capacity to survey its facilities, the parties, in
consultation with the Architectural Access Specialist, will develop a
plan to survey the remaining Kaiser health care facilities in
California. This plan will allow for appropriate participation of the
Kaiser Facilities Department and may include reliance on survey work
performed by Kaiser personnel who have been trained by the
Architectural Access Specialist. Kaiser will cooperate in good faith in
conducting such surveys. The Architectural Access Specialist shall
oversee the survey process to ensure its accuracy. The parties
contemplate that such oversight shall consist of developing survey
instruments, training surveyors, spot-checking, and such other measures
as are deemed appropriate by the Architectural Access Specialist.
Development of the plan for the California-wide survey will be
completed within one hundred-eighty (180) days of the completion of the
report regarding architectural access at the model facilities. Upon its
completion, the plan shall be provided to the third-party Facilitator.
c. Implementation of the plan
for a systemwide survey of Kaiser facilities in California may proceed
on a service area basis, provided that top priority will be placed on
surveying and removing barriers at Kaiser facilities in Oakland,
Hayward, Fontana, and Vallejo.
d. During the course of the
California-wide survey, Kaiser (in consultation and coordination with
the Architectural Access Specialist) will produce interim reports every
ninety (90) days. These reports will include high-priority
recommendations for barrier removal. These interim reports shall be
provided to Plaintiffs’ Counsel and the third-party Facilitator, but
shall otherwise remain confidential.
e. Kaiser will make a good faith
effort to remedy high-priority barriers before the completion of the
California-wide survey and final report. Quarterly interim reports will
document barrier removals completed within the 90-day period covered by
each report and barrier-removal efforts slated for the coming quarter.
These interim reports shall be provided to Plaintiffs’ Counsel and the
third-party Facilitator, but shall otherwise remain
confidential.
f. The California-wide survey
will be completed within thirty (30) months of the effective date of
this Agreement. A final report identifying barriers and making
recommendations for barrier removal shall be completed with ninety (90)
days of the completion of the California-wide survey.
g. Within sixty (60) days of
receiving the final report regarding architectural barriers, the
parties will develop a reasonable action plan and time-line for the
removal of access barriers. The plan and time-line for barrier removal
shall be provided to the third-party Facilitator.
h. If disputes arise in
developing the action plans and time-lines for barrier removal, the
parties shall resolve such disputes through the third-party
Facilitator, in accordance with ¶ 34.
i. Removal of high-priority
barriers shall be completed within five years of the effective date of
this Agreement, provided that Kaiser shall make a good faith effort to
remove barriers on a consistent basis throughout the period allowed
herein for barrier removal.
j. Within seven years of the
effective date of this Agreement, Kaiser will complete the removal of
all barriers slated for removal in a California-wide barrier removal
plan developed by the parties in accordance with ¶ 6(g).
7. Kaiser will ensure that all new
construction and alterations affecting usability of Kaiser facilities
comply with federal and state disability access codes, including ADAAG
and Title 24.
8. Kaiser will create a system to
ensure that access features are properly maintained on an ongoing
basis. This system will include a mechanism for responding promptly to
complaints about access problems.
IV.
Accessible Medical Equipment
9. The parties will work together
to make a good faith effort to identify a mutually agreeable
“Accessible Medical Equipment Specialist(s),” who will be retained by
Kaiser to oversee a systemwide evaluation of Kaiser facilities in
California (“California-wide”) to determine what accessible medical
equipment is needed and can and should be obtained for each Kaiser
hospital and medical office building to ensure that people with
disabilities have full and equal access to all health services,
including, but not limited to, screening and diagnostic procedures. The
Accessible Medical Equipment Specialist(s) will work with Kaiser’s
Patient Handling Equipment Work Group to document Kaiser’s inventory of
accessible and inaccessible medical equipment and identify Kaiser’s
accessible-medical-equipment needs. The Accessible Medical Equipment
Specialist(s) will complete interim reports and a final report of
findings and recommendations, including cost estimates and a
prioritized time-line for installing adequate accessible medical
equipment in each Kaiser hospital and medical office building. Based on
these reports, the parties will develop a reasonable action plan and
time-line to ensure that each Kaiser hospital and medical office
building has the accessible medical equipment needed to provide full
and equal health-care access for people with disabilities. Priority
will be placed on timely and orderly procurement and installation of
the “high-priority” accessible medical equipment that is most important
for delivering health services to people with disabilities. Any and all
Accessible Medical Equipment Specialist(s) shall meet with the approval
of both Kaiser and Plaintiffs, provided such approval is not
unreasonably withheld. In the event that the parties are unable to
identify a specialist(s) with the appropriate expertise in medical
equipment (or a category of medical equipment) that is accessible to
people with disabilities, or in the event of the parties’ mutual
agreement, the parties will instead jointly select individuals who will
comprise an “Accessible Medical Equipment Work Group” that will serve
the same functions as would an Accessible Medical Equipment Specialist.
If the parties so agree, reliance on the outside consultant(s) (i.e.,
the Accessible Medical Equipment Specialist(s)) and the Work Group need
not be mutually exclusive and the parties may adopt an approach that
employs both the Work Group and third-party consultant(s) if and when
it is appropriate to do so.
a. Members of the Accessible
Medical Equipment Work Group may include Kaiser employees and members
and other individuals with appropriate background, experience, and
knowledge regarding the medical equipment needs of and solutions for
people with disabilities. People with mobility disabilities shall be
included among the members of the Accessible Medical Equipment Work
Group.
b. The members of the Accessible
Medical Equipment Work Group shall designate a chairperson who will be
responsible for overseeing and coordinating the work of the Accessible
Medical Equipment Work Group and for reporting to the third-party
Facilitator and Plaintiffs’ Counsel.
d. The Accessible Medical
Equipment Work Group shall work in cooperation with the Program Manager
and/or Access Coordinator (or Coordinating Committee), Kaiser’s Patient
Handling Equipment Work Group and any relevant third-party consultants
retained by Kaiser.
e. The Accessible Medical
Equipment Work Group shall report directly to Kaiser’s Executive
Sponsors Oversight Team.
f. Kaiser shall ensure that the
Accessible Medical Equipment Work Group has sufficient resources to
fulfill its mandate. Kaiser shall bear the costs and expenses of the
Work Group.
10. The Accessible Medical
Equipment Specialist(s) (or Work Group) will begin with a survey of a
representative sampling at the two model facilities of Kaiser members
with disabilities and health care providers to identify the
difficulties disabled patients encounter with inaccessible medical
equipment and related procedures and how those access problems affect
the delivery and receipt of comprehensive health care
services. This survey shall be commenced within sixty (60)
days of the execution of this Agreement. The findings of the
member/provider survey may inform the design and implementation of a
comprehensive physical survey/inventory of the two model facilities and
a report of findings and recommendations regarding the model
facilities, in accordance with ¶ 9. This survey/inventory shall begin
within 150 days of the execution of this Agreement, and will be
completed within sixty (60) days. The report of the Accessible Medical
Equipment Specialist(s) (or Work Group) regarding the model facilities,
including recommendations and suggested time-lines for purchasing and
installing accessible medical equipment, shall be completed within
ninety (90) days of the completion of the survey/inventory. Upon its
completion, this report shall be provided to Plaintiffs’ counsel and
the third-party Facilitator but shall otherwise remain confidential.
Based on the report and recommendations of the Accessible Medical
Equipment Specialist(s) (or Work Group), within sixty (60) days of its
receipt, the parties will develop a reasonable action plan and
time-line to remedy the barriers identified at the model facilities.
High-priority accessible medical equipment will be installed at the
model facilities within eighteen (18) months of the effective date of
this Agreement.
11. Based on the survey of members
with disabilities and providers, the survey/inventory of the model
facilities, a review of the work already done by Kaiser to identify and
respond to accessible-medical-equipment needs, and an objective
assessment of Kaiser’s internal capacity to survey/inventory its
facilities, the parties, in consultation with the Accessible Medical
Equipment Specialist(s) (or Work Group), will develop a plan to
survey/inventory the remaining Kaiser health care facilities in
California. This plan will allow for appropriate participation of the
Kaiser Patient Handling Equipment Work Group and may include reliance
on survey/inventory work performed by Kaiser personnel who have been
trained by the Accessible Medical Equipment Specialist(s) (or Work
Group). Kaiser will cooperate in good faith in conducting such
surveys/inventories. The Accessible Medical Equipment Specialist(s) (or
Work Group) shall oversee the survey/inventory process to ensure its
accuracy. Development of the plan for the California-wide
survey/inventory will be completed within sixty (60) days of the
completion of the report regarding accessible medical equipment at the
model facilities. Upon its completion, the plan shall be
provided to the third-party Facilitator.
12. Implementation of the plan for
a systemwide survey/inventory of Kaiser facilities in California may
proceed on a service area basis, provided that top priority will be
placed on surveying Kaiser facilities in Oakland, Hayward, Fontana, and
Vallejo to identify accessible-medical-equipment needs and procure and
install accessible medical equipment in those facilities.
13. During the course of the
California-wide survey/inventory, Kaiser (in consultation and
coordination with the Accessible Medical Equipment Specialist(s) or
(Work Group)) will produce interim reports every ninety (90) days.
These reports will include recommendations for procuring and installing
high-priority accessible medical equipment. These interim reports shall
be provided to Plaintiffs’ Counsel and the third-party Facilitator, but
shall otherwise remain confidential.
14. Kaiser will make a good faith
effort to procure and install high-priority accessible medical
equipment before the completion of the California-wide survey/inventory
and final report. Quarterly interim reports will document the
identification and response to accessible-medical-equipment needs
completed within the 90-day period covered by each report and efforts
slated for the coming quarter. These interim reports shall be provided
to Plaintiffs’ Counsel and the third-party Facilitator, but shall
otherwise remain confidential.
15. The California-wide medical
equipment survey/inventory will be completed within two years of the
effective date of this Agreement. A final report identifying barriers
and making recommendations for barrier removal shall be completed with
ninety (90) days of the completion of the California-wide
survey/inventory.
16. Within sixty (60) days of
receiving the final report regarding accessible medical equipment
needs, the parties will develop a reasonable action plan and time-line
for the procurement and installation of accessible medical equipment.
This plan and time-line shall be provided to the third-party
Facilitator.
17. If disputes arise in
developing the action plans and time-lines for procurement and
installation of accessible medical equipment, the parties shall resolve
such disputes through the third-party Facilitator, in accordance with ¶
34.
18. Procurement and installation
of high-priority accessible medical equipment in Kaiser facilities
throughout California shall be completed within three years of the
effective date of this Agreement, provided that Kaiser shall make a
good faith effort to improve the availability of accessible medical
equipment on a consistent basis throughout the period allowed herein
for improving access to medical equipment.
19. Procurement and installation
of all accessible medical equipment required by the plan developed by
the parties in accordance with ¶ 16 shall be completed by Kaiser within
five years of the effective date of this Agreement.
20. With the assistance of the
Accessible Medical Equipment Specialist(s) (or Work Group), Kaiser will
develop and implement a training program to educate Kaiser staff about
the availability and proper use of accessible medical equipment,
including guidance on proper lifting and transferring techniques.
Kaiser will ensure that it provides its members with accurate
information about accessible medical equipment so they will be aware of
its availability and will know they do not need to bring attendants to
their Kaiser medical appointments.
21. Kaiser will continue to
maintain current information about accessible medical equipment so it
will be able to upgrade its equipment as advancements in access are
made.
V. Improved
Policies, Procedures, and Programs Affecting Access
22. The parties will work together
to make a good faith effort to identify a mutually agreeable expert or
experts, referred to herein as “Access Policy Consultant(s),” who will
be retained by Kaiser to provide consultation regarding policies,
procedures, and programs that can improve access to quality health care
for people with disabilities. Any and all expert(s) shall meet with the
approval of both Kaiser and Plaintiffs, provided such approval is not
unreasonably withheld. In the event that the parties are unable to
identify a consultant with the appropriate expertise in a particular
access-related area or areas, or in the event of the parties’ mutual
agreement, the parties will instead jointly select individuals who will
comprise an “Access Policy Work Group” that will serve the same
functions as would an Access Policy Consultant. The Access Policy
Consultant(s) and/or Access Policy Work Group shall be put in place
within ninety (90) days of the effective date of this Agreement. If the
parties so agree, reliance on the outside consultant(s) (i.e., the
Access Policy Consultant(s)) and the Work Group need not be mutually
exclusive and the parties may adopt an approach that employs both the
Work Group and third-party consultant(s) if and when it is appropriate
to do so.
a. Members of the Access Policy
Work Group may include Kaiser employees and members and other
individuals with appropriate background, experience, and knowledge
regarding health access issues for people with disabilities. The Access
Policy Work Group members shall include, to the maximum extent
possible, people with disabilities. Before making any decision
regarding a policy, procedure, or program with a direct effect on a
subclass of people with disabilities (such as persons with hearing
disabilities, persons with vision disabilities, persons with
developmental disabilities, or those with mobility disabilities) the
Access Policy Work Group will first consult with individuals who are
members or representatives of that subclass.
b. The members of the Access
Policy Work Group shall designate a chair who will be responsible for
overseeing and coordinating the work of the Access Policy Work Group
and for reporting to the third-party Facilitator and Plaintiffs’
Counsel.
c. During the first two years
following the effective date of this Agreement, the Access Policy Work
Group shall submit, to the third-party Facilitator and Plaintiffs’
Counsel, written reports every ninety (90) days, documenting the
Group’s examination of policies, procedures, and programs affecting the
access of people with disabilities to Kaiser health services and
recommending improvements for those policies, procedures, and programs.
Thereafter, these reports shall be submitted to the third-party
Facilitator and Plaintiffs’ Counsel every six months.
d. The Access Policy Work Group
shall work in cooperation with the Program Manager and/or Access
Coordinator (or Coordinating Committee), Kaiser’s Clinical Protocol
Work Group and Kaiser’s Education & Training Work Group and any
relevant third-party consultants retained by Kaiser.
e. The Access Policy Work Group
shall report directly to Kaiser’s ADA Advisory Committee.
f. Kaiser shall ensure that the
Access Policy Work Group has sufficient resources to fulfill its
mandate. Kaiser shall bear the costs and expenses of the Work Group.
23. With the assistance of the
parties, the Access Policy Consultant(s) and/or the Access Policy Work
Group will review any and all Kaiser policies and procedures (or the
absence thereof) that may tend to discriminate against people with
disabilities, lead to their segregation, and/or impede their full and
equal access to comprehensive health services and, where appropriate,
will recommend reasonable modifications that Kaiser will adopt and
implement to improve access for people with disabilities. With respect
to the model facilities, this review, recommendation, and
implementation process shall be completed within one year from the
effective date of this Agreement. The review, recommendation, and
implementation process for all Kaiser facilities in California shall be
completed within three years from the effective date of this Agreement.
24. Plaintiffs have raised issues
concerning Kaiser's policies and procedures for the procurement and
maintenance and repair of durable medical equipment for members with
disabilities. The parties have determined that they need additional
time to address these issues. Accordingly, the parties agree to use
their best efforts and to proceed in good faith to address these issues
and arrive at a future agreement resolving them. In the event that such
an agreement is not reached, the release provided in Paragraphs 41 -42
shall not apply to plaintiff's claims relating to durable medical
equipment.
25. With the assistance of the
parties, the Access Policy Consultant(s) and/or the Access Policy Work
Group will review Kaiser’s policies and procedures (or the absence
thereof) for addressing the communication needs of people with vision,
speech, hearing, and cognitive disabilities and, where appropriate,
will recommend reasonable modifications that Kaiser will adopt and
implement. With respect to the model facilities, this review,
recommendation, and implementation process shall be completed within
one year from the effective date of this Agreement. The review,
recommendation, and implementation process for all Kaiser facilities in
California shall be completed within three years from the effective
date of this Agreement.
26. Kaiser will in good faith
assess its existing system to inform patients when they are due for
certain health services, particularly those aimed at prevention and
early detection of illnesses and other health problems. With the
assistance of the Access Policy Consultant(s) and/or the Access Policy
Work Group and in consultation with Plaintiffs’ Counsel, Kaiser will in
good faith then assess whether such as system should be modified to
ensure more effective communication of this information to members with
disabilities. This assessment and the implementation of any appropriate
modifications will be completed as soon as reasonably possible and in
no event later than three years from the effective date of this
Agreement.
27. With the assistance of the
Permanente Medical Groups in Northern and Southern California and, to
the extent determined appropriate by the parties, jointly-selected
consultants with appropriate expertise, and with input from Plaintiffs’
Counsel, Kaiser will develop a training program to educate its health
care professionals about treating people with disabilities. The goals
of this training will include helping providers become more sensitive
to the needs of people with disabilities and informing providers about
disability-specific issues that arise in delivering health services to
this community. This training will comprehensively address the range of
issues that relate to the delivery of health services for people with
disabilities; training curriculum topics may include:
(i) dealing with disability in the health care profession,
(ii) the culture of people with disabilities, (iii) treating
disabilities in connection with broader health concerns, (iv) the
relationship between disabilities and standards of care and treatment
protocols, (v) problems with the medical model of disability,
(vi) access needs and legal responsibilities, (vii) health care
concerns of women with disabilities, including reproductive health
care, pregnancy, rape, and abuse, and (viii) advancements in adaptive
technology for people with disabilities. This training program will be
developed and implemented within two years of the effective date of
this Agreement.
a. If it is not possible to make
the training mandatory, Kaiser will strongly advise its health care
providers to participate in the training. To encourage this
participation, Kaiser will make its best effort to enable its doctors
to earn Continuing Medical Education credits for participating in the
training.
28. In conjunction with the development of the training curriculum for health care providers, Kaiser will develop a handbook dealing with the delivery of accessible health services for people with disabilities. Kaiser will provide this handbook to all its health care providers. This handbook will be developed and distributed within three years of the effective date of this Agreement. In addition, plaintiffs will develop a handbook dealing with the delivery of accessible health services for people with disabilities and their families (Disability consumer Guidebook). Kaiser agrees to make reasonable and good faith
efforts to assist in distributing the Disability
Consumer Guidebook to its members with disabilities. Kaiser
is not obligated to pay any costs for this purpose.
29. At the appropriate times,
Kaiser’s California Division President and Medical Directors will
circulate memoranda to all Kaiser employees, reiterating Kaiser’s
commitment to providing equal access for people with disabilities and
explaining any new policies and procedures and access features that
will effectuate that goal.
30. The Permanente Medical Groups
will in good faith consider whether it is appropriate to implement
specialized clinical programs in disability care. The exploration of
the propriety of developing such a specialization will include
consideration of the standards of care for people with disabilities and
how care can be better delivered and managed to achieve improved health
for people with disabilities. In the event that Kaiser, with input from
the disability community, decides it is appropriate to develop
disability clinics (akin to clinics for women’s health care or
geriatric care) at certain Kaiser medical centers, such clinics shall
supplement, not substitute for, the provision of comprehensive,
accessible health services in a fully integrated setting. The decision
whether to develop some form(s) of specialization in care for people
with disabilities shall be vested with the Permanente Medical Groups,
as this determination involves questions regarding the practice of
medicine.
31. If and when the parties make a
good-faith determination that it is appropriate (for example, as
improved access features and policies are integrated into Kaiser’s
facilities and health care programs), Kaiser will conduct outreach to
members with disabilities to inform them of improved access features,
policies, and programs and other pertinent information that may help
improve access to regular and comprehensive health care. In addition,
Kaiser may of its own accord determine that such outreach is
appropriate. This outreach may include the distribution of written
materials (with alternative formats) regarding the health-care-access
needs and rights of people with disabilities. Plaintiffs’ Counsel shall
cooperate with Kaiser to ensure the efficacy of outreach efforts and
shall participate in the development of outreach and education
materials.
32. The parties, with the
assistance of the specialists and consultants provided for herein, will
identify steps that Kaiser shall take to improve access pending full
implementation of the access plan. These interim steps may include, for
example, providing care at nearby Kaiser medical facilities that have
accessible medical equipment when a member’s local Kaiser facility does
not have such equipment. In the event no Kaiser
facility has accessible medical equipment medically necessary for the
member’s care, Kaiser will pay for care provided at a non-Kaiser
facility when a patient is referred by a Permanente Medical Group
physician.
VI.
Reporting and Monitoring
33. Kaiser shall provide written
reports on a quarterly basis to Plaintiffs’ Counsel and the third-party
Facilitator regarding work performed to implement this Agreement. The
first such report shall be due ninety (90) days after the effective
date of this Agreement. The reports shall detail (a) what steps Kaiser
has taken to comply with the Agreement since the last report, (b)
whether Kaiser has met the deadlines for implementation set forth in
this Agreement, and if not, the extent to which such work has been
completed and an explanation for any gaps, (c) what problems, if any,
Kaiser has encountered in complying with the Agreement, (d) what if
anything Kaiser plans to do to remedy these problems, and (e) any
complaints and any responses to such complaints Kaiser has received
regarding access for people with disabilities. The reports shall
include information regarding the evaluation and modification of Kaiser
policies, procedures, and programs, as provided for in Section V of
this Agreement.
a. The reports submitted in
accordance with ¶ 23 are in addition to the subject-specific reports
required by this Agreement, such as those pertaining to the
identification and removal of architectural barriers (see ¶¶ 6-8,
inclusive), those pertaining to the identification of and response to
accessible-medical-equipment needs (see ¶¶ 9-21, inclusive),
and those pertaining to policies, procedures and programs affecting
people with disabilities (see ¶¶ 22-32, inclusive). Instead of
submitting multiple quarterly reports, however, Kaiser, if it wishes to
do so, may submit single quarterly reports that include all the
information required by this Agreement, provided, however, that any
reports by the Architectural Access Specialist, Accessible Medical
Equipment Specialist(s) (or Work Group), Access Policy Consultant(s) or
Access Policy Work Group shall be presented separately.
34. A neutral third-party
Facilitator shall be appointed jointly by the parties to monitor
compliance with this Agreement. Subject to an annual cap of
$15,000, Kaiser shall pay for the time and costs of the third-party
Facilitator. The third-party Facilitator shall have the powers to
obtain from either party any non-privileged documents or information
relevant to implementation of this Agreement, and to serve as a
mediator if disputes arise between the parties in formulating plans and
time-lines for the removal of architectural barriers and/or the
procurement and installation of accessible medical equipment in Kaiser
facilities in California. In the event that this mediation does not
enable the parties to resolve such a dispute, the Facilitator may issue
a binding decision resolving the dispute, provided that disputes other
than those pertaining specifically to the formulation of plans and
time-lines for the removal of architectural barriers or the procurement
and installation of accessible medical equipment shall be resolved in
accordance with the dispute resolutions set forth in ¶ 37.
35. If the person initially
selected becomes unavailable to serve as the third-party Facilitator,
the parties will agree to appoint a substitute person to act as the
third-party Facilitator. If the parties cannot agree on a substitute
person, the parties will submit the matter of whom to appoint as a
substitute third-party Facilitator for arbitration in accordance with ¶
37(c).
36. Kaiser shall designate a point
person responsible for collecting information concerning compliance
with this Agreement, producing the quarterly reports referenced in ¶ 33
above, and producing any information requested by the Facilitator. This
point person shall report directly to, and have direct access to, the
Access Coordinator. Kaiser shall ensure that the point person has
sufficient resources to collect all necessary information. Kaiser shall
bear all costs and expenses of this point person. The Access
Coordinator (or the chairperson of the Access Coordinating Committee),
provided for in ¶ 1, may serve as this point person.
VII.
Dispute Resolution
37. The parties hereto agree that any
dispute or controversy arising out of, relating to, or in connection
with this Agreement, or the interpretation, validity, construction,
performance, breach, or termination thereof shall be settled in the
following manner:
a. First, either party claiming
that a violation has occurred under this Agreement will give notice of
the claim in writing to opposing counsel and will propose a resolution
of the issue to the other party.
b. Second, within ten (10) days
of the written claim of violation, the parties shall meet and confer to
attempt in good faith, through informal negotiations, to resolve the
dispute or controversy.
c. Third, if the meet-and-confer
step fails to produce a resolution, the parties shall submit the
dispute for arbitration by JAMS Endispute (the “Arbitrator”). The
Arbitrator may grant injunctions or other relief in such dispute or
controversy. The decision of the Arbitrator shall be final, conclusive
and binding on the parties to the arbitration. Judgment may be entered
on the arbitrator’s decision in any court having jurisdiction.
i. The Arbitrator shall apply
California law to the merits of any dispute or claim, without reference
to conflict-of-law rules. The arbitration proceedings shall be governed
by federal arbitration law, without reference to state arbitration law.
The parties hereto hereby expressly consent to the personal
jurisdiction of the state and federal courts located in California for
any action or proceeding arising from or relating to this Agreement
and/or relating to any arbitration in which the parties are
participants.
ii. The parties initially
shall each advance one half of the costs and expenses of the
Arbitrator, and each party will bear responsibility for its own
attorneys’ fees and its other costs and expenses. Thereafter, the
Arbitrator may, in accordance with applicable law, award reasonable
attorneys’ fees, costs, and expenses to the prevailing party.
VIII.
Financial Issues and Fees and Costs
[REDACTED]
IX.
Releases
41. In consideration for the
promises made above, Plaintiffs, for themselves and for each of their
respective representatives, heirs, successors and assigns, do hereby
release, acquit and forever discharge Kaiser Foundation Health Plan,
Inc. and Kaiser Foundation Hospitals, and their parent companies,
affiliates, subsidiaries, divisions and related companies, and the
past, present and future employees, agents, attorneys, officers,
directors, shareholders, partners, heirs, executors, administrators,
insurers, successors and assigns of all of the foregoing (all
hereinafter “Releasees”), from and against any and all claims, rights,
demands, actions, obligations, liabilities and causes of action of any
and every kind, nature and character whatsoever raised in Metzler et
al. v. Kaiser Foundation Health Plan, Inc. et al., Case No. 829265-2,
against Releasees, or any of them, including those arising from or in
any way connected with or related to any claims of discrimination or
denial of access, including any claims arising under California Civil
Code §§ 51, et seq., 54, et seq., and 3345, California
Government Code §§ 11135, et seq., and the regulations
promulgated thereunder, and Section 17200 of the California Business
and Professions Code.
42. Except as otherwise provided
by law, Plaintiffs agrees that they will not, on behalf of themselves,
or in cooperation or participation with any other person, firm, entity,
corporation, institute, or government agency, file, refile, or in any
manner participate in or prosecute any claim, charge, grievance,
complaint or action of any sort, before any local, state or federal
court, arbitrator, or administrative agency, board or tribunal
concerning any matter which was raised in connection with any matter
released in ¶ 31 above. Plaintiffs further agree to dismiss promptly or
withdraw with prejudice Metzler et al. v. Kaiser Foundation Health
Plan, Inc. et al., Case No. 829265-2, except that the Court shall
retain jurisdiction to enforce the Agreement and the Dispute Resolution
provisions
X. Term of
the Agreement
43. The effective date of this
Agreement is the date on which all parties have signed the
Agreement.
44. Although Kaiser will continue
to comply in good faith with federal and California access laws, this
Agreement will terminate on the later of [seven (7) years and one day]
after its effective date or the date upon which Kaiser completes its
obligations under the Agreement.
XI. General
& Miscellaneous Provisions
45. The parties will hold a joint
news conference to announce the settlement to the public. The parties
will jointly prepare and disseminate a media release recognizing the
efforts of Kaiser to take a leadership role in providing accessible
health care to people with disabilities.
46. Kaiser and Plaintiffs’ Counsel
will work cooperatively and collaboratively to submit grant proposals
seeking funds to support the development and implementation of the
Access Plan so that Kaiser can establish a model program for meeting
the health needs of people with disabilities. Regardless of whether
these fundraising efforts are successful, Kaiser shall bear the
financial responsibility for fulfilling its obligations under this
Agreement.
47. This Agreement shall be
governed by the laws of the State of California.
48. This Agreement may be signed
in duplicate originals.
49. Heading and sub-headings in
this Agreement are used solely for convenience. Examples provided in
this Agreement are intended to be illustrative, not exhaustive.
50. If a dispute arises because a
party claims that unforeseen circumstances make this Settlement
Agreement, or any part of it, unjust, any party may seek modification
of the Agreement. Any such modification should take into account (i)
the purposes of this Agreement, as described in its Recitals, (ii) the
circumstances that allegedly make the provision(s) unjust, including
whether the modification-seeking party has acted in good faith, and
(iii) whether the proposed modification is suitably tailored to the
changed circumstances. Disputes regarding the propriety of a
modification shall be resolved in accordance with the dispute
resolution provisions set forth in ¶ 37.
a. If it becomes impracticable
for either party to meet a deadline established by this Agreement, the
parties may modify the Agreement’s time-lines in accordance with ¶ 50,
provided that the party seeking an extension has made a good faith
effort to meet the relevant deadline.
51. This Agreement is the
compromise of disputed claims and shall not be deemed to be an
admission of liability or wrongdoing by any party for any
purpose.
52. This Agreement is binding on
and for the benefit of Plaintiffs and Plaintiffs’ Counsel, and
Releasees and their respective heirs, executors, administrators,
successors and assigns, wherever the context requires or
admits.
53. If any provision or portion of
this Agreement shall be adjudged by a court to be void or
unenforceable, the same shall in no way affect any other provision of
this Agreement, the application of such provision in any other
circumstances, or the validity or enforceability of this
Agreement.
54. Breach of any term(s) of this
Agreement by one or more defendant(s) does not invalidate the Agreement
as to any or all of the remaining, non-breaching defendants. Breach of
this Agreement by one defendant does not constitute a breach by all
defendants.
55. This instrument contains the entire
agreement of the parties with regard to matters covered in it, and
supersedes any prior agreements as to those matters. This Agreement may
not be changed or modified, in whole or in part, except by an
instrument in writing signed by Plaintiffs, Plaintiffs’ Counsel, and an
Officer of Kaiser.
56. The parties declare that prior
to the execution of this Agreement, they apprised themselves of
sufficient relevant information, through sources of their own
selection, in order that they might intelligently exercise their own
judgment in deciding whether to execute it, and in deciding on the
contents hereof. The parties further declare that their respective
decisions are not predicated on or influenced by any declarations or
representations of the plaintiff or persons or entities released or any
predecessors in interest, successors, assigns, officers, directors,
employees, attorneys, or agents of said entities other than as may be
contained in this instrument.
57. The parties expressly state that they have read this Agreement and understand all of its terms, that the preceding paragraphs recite the sole consideration for this Agreement and
that all agreements and understandings between the parties are embodied and expressed
herein. This Agreement is executed voluntarily and
with full knowledge of its significance.
Kaiser Foundation Health Plan, Inc. Date: ______________________________
Kaiser Foundation
Hospitals
By: ___________________________________
Title: ___________________________________
All Plaintiffs
Date: ______________________________