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Link for Translation of this Kaiser Papers page from Google Translation Service 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: ______________________________
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