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A. Pre-Litigation Facts: The Metzler Agreement
On July 9, 2001, Plaintiffs retained Pinnock & Wakefield to file a
civil action against Kaiser for failing to provide auxiliary aids and services
to Kaiser members. Through news reports, lead counsel Theodore A. Pinnock, had
notice that Kaiser entered into a broad based ADA Title III Settlement with
Disability Rights Advocates (DRA) with regards to architectural barriers.
On January 27, 2002, Mr. Pinnock wrote an email to Larry Paradis, a DRA
attorney, to determine if the settlement covered auxiliary aids specifically,
and if it was a class action settlement.
In July 2002, Mr. Pinnock received a settlement agreement entitled “SETTLEMENT
AGREEMENT Metzler et al. v. Kaiser Foundation Health Plan, Inc. et al”
attached as Exhibit A to the
Decl. Of Theodore A. Pinnock. First,
Mr. Pinnock surmised the Metzler Agreement was not a class agreement.
Second, he determined the agreement focused on removing architectural
barriers at Kaiser facilities. Third, the agreement did not cover auxiliary aids
and services. Fourth, Mr. Pinnock
found a catchall provision, which stated: “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.”
Plaintiffs desired specific auxiliary aids and services definitions and
guidelines. The Metzler Agreement
was not intended to provide such definitions and guidelines. Thus, this civil
action was filed on July 19, 2002 after reviewing evidence showing Kaiser’s
failure to provide auxiliary aids and reviewing auxiliary aids statutory law. B. The Complaint
In the Complaint Plaintiffs LISA IRVING-RAMIREZ, AN INDIVIDUAL and MARIA
DEER, AN INDIVIDUAL allege they have sight impairments which substantially limit
their ability to see or read standard print.
Specifically, LISA IRVING-RAMIREZ is partially visually impaired and
requires written material to be in 14-point large print.
MARIA DEER cannot see at all and requires written material be delivered
on audiocassette.
Between 2001 to present, at all times Plaintiffs were/are a client or
customer of Defendants. Defendants
operate several medical facilities, including, inpatient and outpatient medical
facilities throughout San Diego County. Plaintiffs
received medical services at one or more Kaiser facilities in San Diego.
Plaintiffs, on numerous occasions, received pharmacy written
instructions, written medical instructions, printed media delivered in person to
patients or clients and printed media delivered by other means to patients or
clients from Kaiser. Plaintiff
Irving-Ramirez repeatedly requested this information be delivered to her in
large print timely. Plaintiff Deer
repeatedly requested this information be delivered to her in audiocassette form
timely. Defendants continued to
deliver Plaintiffs pharmacy written instructions, written medical instructions,
printed media delivered in person to patients or clients and printed media
delivered by other means to patients or clients in standard print, or Defendants
delivered to Plaintiffs pharmacy written instructions, written medical
instructions, printed media delivered in person to patients or clients and
printed media delivered by other means to patients or clients which failed to
provide meaningful access to the words contained therein.
C. November 15, 2002 Private Settlement Meeting: Plaintiffs’ November 16, 2002 DemandIn early August 2002, Malcolm Trifon, Kaiser Corporate Counsel, contacted Mr. Pinnock about an extension of time to file a responsive pleading and about pursuing settlement. Mr. Trifon and Mr. Pinnock agreed to meet. In preparation for the meeting, in early August, 2002, Mr. Pinnock decided to update his case research to determine if a court interpreted “auxiliary aids and services” and if a court defined the meaning of “large print,” “Braille,” “audio recordings,” “taped text,” and “qualified readers” as used in the ADA. On November 15, 2002, Mr. Trifon and Mr. Pinnock had an in person private settlement conference where Mr. Pinnock made an oral settlement demand.
On November 16, 2002, Mr. Pinnock made a written settlement demand.
The demand stated, in relevant part:
ensure effective communication with
individuals with disabilities. The Appendix to 28 CFR Sec.36.303 states effective
communication means relaying information ``effectively, accurately, and
impartially”.
a.
Alternative Formats i.
Printed Material 1.
All material must be in 18 point; 2.
All materials offered to members must in large print which include but
are not limited to appointment notices, Questionnaires, health history forms,
brochures, pamphlets, newsletters, membership magazines, healthcare provider
directories, in class hand outs, prescription directions, medication inserts,
medication information sheets, All maps, directories and in house phone numbers,
signs, all Kaiser classes, written correspondence on behalf of membership
services and any other Kaiser entity or representative; 3.
Each department shall have large print devices; 4.
Personnel in each department shall be trained to use said devices; ii. Audiocassette 1. Kaiser
shall prohibit abridging any printed text and there shall be no omission of
any printed text;
2. Each department shall
have recording devices; 3. Personnel
in each department shall be trained to use said devices; iii. Braille 1. Must be in grade two which shall be condensed text
content or an omission of any text which appears in standard print materials furnished by the Kaiser Healthcare Network;
2. Provide inserts, handouts, prescription directions,
etc. in Braille,
grade two. iv. Online Online within one year of the settlement date all
printed health are provider directories, newsletter and pamphlets shall be fully
accessible to member who use screen readers in place of viewing graphics and
text on computer screen. In order
to achieve 100% accesses to online resources it is essential to consult with
specialists who design and evaluate online and Internet services for
user-friendly interfacing of screen reader program and online goods and
services. v. Automation Automated access for prescription
information, handouts about side effects, etc. With one-year print impaired
Kaiser members shall be able to “read” third prescriptions, directions
landside effects through automated phone service.
vi. Shopping Assistance with “shopping” for goods
within the pharmacy. Members who
are unable to read standard print or who are unable to see goods stocked on
shelves or behind the counter need pharmacy assistance.
This assistance shall be available to Members who identify themselves as
being unable to read standard print. vii. Screens Scrolling screens and numbers posted above
pharmacy windows limit or exclude persons highly unreliable. For this reason these members shall drop off pickup
prescription from the same line. If
other members are expected to wait 30 minutes then the member with vision loss
shall be given the same waiting period and will re-enter the designated line to
obtain his or her medication.
viii. Tiling Kaiser must demonstrate it has thoroughly
investigated the installation of tiling signs, which can only be heard by the
member who has a receiver. Such
technology has existed for more than a decade and is available in some airports,
rehabilitation centers and some transit services within the United States.
ix. Directories Facility directories, which often appear in
entrance and rear elevators and exist to inform members where a service or
physician is located, must be in alternate format.
Members shall contact membership services to obtain these hospital and
city directories in 18 point print or grade two Braille. No advanced notice of
the members shall be required however; advanced notice can be stated as
preferred. Phone directories posted
on wall or in-house phones must be available in 18-point print and grade two
Braille. It is strongly recommended
that these lists automatically be posted in 18-point print.
A Braille directory shall be available at Membership Services as well as
in tee cosset check in are to the phone. x. Full Inclusion into all
Kaiser Classes Members who participate in nutrition,
stress management, support groups, etc., shall offer alternative formats.
Upon verbal request from the member with a vision disability the
instructor will read (instead of pointing or referencing to the overhead etc).
Instructors reading out loud what they are writing or presenting in the mom
college campuses. Members who
register for any class shall identify one are self as being a member with a
vision disability. The purpose of
identifying one’s self as having a vision disability is to enable Kaiser staff
to offer handouts and resources prior to class.
At that time the member wall be offered options of 18 point print,
Braille, grade two, audio cassette information at least 72 hours prior to the
first lecture or one can pick up the materials in alternative format at the
start of the class when had outs are typically distributed. If the class us
geared to hands-on illustrations then the members with vision disability should
be offered the opportunity to be directly involved in the demonstration.
This works well in First Aid and PR courses.
It shall not be the responsibility of other sighted class participant to
read materials on imparts visual information the member with the vision
disability. xi. Representation by an
Advisory Committee At every regional level an Advisor
Committee shall be established to ensure members each vision loss are
continuously and fully included into every service and all goods provided by any
Kaiser Healthcare Network. The
advisory committee shall be equally comprised of members and professionals not
employed by or for Kaiser. Both
sighted and visually literate adults shall recommend, vote and oversee the
committee’s recommendations and determinations. The committee shall report to
Kaiser regional representatives, a designated entity such as Department of
Health and Human Services and for the first two years shall annually appraise
law firm. This committee may
be a sub-committee of the committee created by section I1 of the Metzler
Agreement. xii. Kaiser shall appoint an Auxiliary Aid Specialis Mr. Trifon wanted Plaintiffs to agree to the Metzler Agreement with some compensation, thus, he rejected Mr. Pinnock’s demand. Mr. Trifon filed an Answer.
D.
Early Neutral Evaluation: Kaiser’s ADA Policy Consultant
On
February 12, 2003, an Early Neutral Evaluation was held, however, the case did
not settle. On April 14, 2003, a
telephone conference was held with Mr. Pinnock, Mr. Trifon, Shari Samuels who is
Kaiser’s ADA Policy Consultant and Ms. Nicole Duckett who is Kaiser’s
Litigation Counsel to discuss Kaiser’s progress in providing auxiliary aids.
On July 14, 2003, Mr. Pinnock drafted an e-mail to Ms. Duckett stating a
willingness to settle by entering a consent decree[1] adopting Samuels' Kaiser
plan with compliance within 1 year with an offer to settle for $60,000.00.
Ms. Duckett sent an email making a counter proposal to Mr. Pinnock as
follows: relying on Samuels' plan, agree that Kaiser is making efforts to
comply, agree on a monetary amount and dismiss suit.
Plaintiffs did not accept this counter proposal.
E. Kaiser’s $24,000 as a potential global monetary amount
On October 9, 2003, Mr. Pinnock received an email from Ms. Duckett about
$24,000 as a potential global monetary amount.
Mr. Pinnock replied, on October 9, 2003, stating $24,000 did not include
fees and indicated a willingness to submit fees to this Court.
On October 27, 2003, a settlement conference was held in which Mr.
Pinnock stated that auxiliary aids must be defined in a settlement agreement,
fees can be decided by this Court, and this case must be settled as a class
action. The case did not settle.
F. The Kaiser Draft
On November 1, 2003, Mr. Pinnock wrote a proposed settlement and release
agreement called the Kaiser Draft where he made a detailed outline governing the
auxiliary aids and related services. On February 19, 2004, Defendants
responded to the Kaiser Draft with a revised agreement in which Defendants
deleted all of Mr. Pinnock's detailed auxiliary aids and related services, and
it did not provide for any definition for auxiliary aids.
Also, the revised draft agreement did not state when the plaintiffs would
be provided with the auxiliary aids, the agreement contained a confidentiality
clause which would inhibit other Kaiser members from learning of the
availability of auxiliary aids, and the agreement did not specify the amount of
payment. G. Mr. Pierce Stepping In For Ms. Duckett
On March 15, 2004, Mr. Pinnock received an email from Mr. Pierce stepping
in for Ms. Duckett. Mr. Pierce emphasized common settlement ground and stated
auxiliary aids regulations are not precise.
On March 16, 2004, Mr. Pinnock drafted an e-mail to Mr. Pierce stating
the parties needed the court to define auxiliary aids.
Also, Mr. Pinnock analyzed the Auxiliary Aid regulation in reply to an
email sent by Pierce. H. Plaintiffs’ Terms
On March 16, 2004, Mr. Pinnock, in an effort to gain consensus on the
definitions of auxiliary aids, drafted an e-mail to Jeff Thom, President of the
California Council of the Blind, asking for definitions for Braille, large
print, and audiocassette. Mr. Pinnock received an email from Gene Lozano of the
California Council of the Blind about definitions for large print, Braille, and
audiocassette on March 19, 2004. From
March 19, 2004 to March 20, 2004, Mr. Pinnock conducted detailed research on the
NSL website, Library of Congress website, the Braille Institute website, and
other websites to ascertain secondary authority for defining large print,
Braille, audio recording, taped text and qualified readers.
Mr. Pinnock also researched the Federal Rules of Evidence and the Federal
Rules of Civil Procedure for authority defining large print, Braille, audio
recording, taped text and qualified readers.
Beginning on March 20, 2004, Mr. Pinnock wrote the detailed Plaintiffs’
Terms attached as Exhibit D of the Decl. Of Theodore A. Pinnock based upon his
detailed research. Mr. Pinnock, Mr.
Trifon and Mr. Pierce agreed, in principal, on Plaintiffs’ Terms at a
settlement conference on March 26, 2004. On
April 19, 2004 the parties agreed on the final version of Plaintiffs’ Terms
and Defendants started drafting another settlement agreement incorporating
Plaintiffs’ Terms. On May 31, 2004, a draft agreement prepared by defendants
incorporating the final version of Plaintiffs’ Terms was completed.
I. Plaintiffs Are The Prevailing Party: On June 4, 2004, The Parties Appeared At A Settlement ConferenceOn June 4, 2004, the parties appeared at a settlement conference. At the conference the parties agreed on the record: 1. Plaintiffs would receive $28,000 in 30 days, 2. Plaintiffs would receive auxiliary aids in 30 days, 3. Plaintiffs are the prevailing party, 4. Plaintiffs’ counsel will file a motion for fees and costs, 5. Defendants will revise the draft agreement prepared by defendants incorporating the final version of Plaintiffs’ Terms to reflect the provisions placed on the record. On June 14, 2004, Mr. Pinnock wrote an e-mail to Mr. Pierce asking him to revised the last draft release to state $28,000 for damages due 30 days from June 4, 2004, to state 30 days to provide auxiliary aids, and reminding him of Mr. Pinnock's $60,000 fee demand expired on June 14.[2] Due to the fact Mr. Pierce did not revised the agreement, on June 21, 2004, Mr. Pinnock modified the agreement prepared by the defendant by adding the payment of 28,000 dollars for damages, by indicating to whom the payment should be made to, by indicating the payment shall not include the attorney fees and costs, by indicating that the attorney fees and costs shall be determined by a motion and by adding within 30 days of June 4, 2004, defendants will provide the auxiliary aids and related services to the plaintiff, and deleted the confidentiality clause. Subsequently, Defendants modified the Agreement that became the Final Version. J.
The Final Release and Agreement contains an Exhibit A. Exhibit A
contains the
ADA compliance termsThe Final Release and Agreement contains an Exhibit A. Exhibit A contains the ADA compliance terms as follows: The
parties agree that based upon a careful review of the ADA legislative history,
Congress did not intend under title III to impose upon Kaiser the requirement
that it give primary consideration to the request of the individual with a
disability. The parties agree the legislative history demonstrates congressional
intent to strongly encourage consulting with persons with disabilities. For
the purposes of this agreement the term "auxiliary aids and services"
includes qualified readers, taped texts, audio recordings, Braille materials,
large print materials, or other effective methods of making visually delivered
materials available to individuals with visual impairments, acquisition or
modification of equipment or devices, and other similar services and actions.
Individuals with visual impairments can perceive, receive and process external
information by their five senses: 1. Taste; 2. Touch; 3. Sight; 4. Sound; 5.
Smell. The Title III regulations, as to the visually impaired and auxiliary aids
and related services, are intended to give people with visual impairments equal
access to information communicated by Kaiser. In
general, Kaiser members can receive information by one or more Core Senses: 1.
Touch 2. Sight 3. Sound. By
way of example, the regulations lists Five Core Methods of Auxiliary Aids that
provide information to the Core Senses: 1. Qualified readers; 2. Taped texts; 3.
Audio recordings; 4. Braille; 5. Large print. However, the focus must be on
providing information effectively to the Core Senses. Hence, the regulations
allow for other effective methods and similar services and actions other than
the Five Core Methods to provide information effectively to the Core Senses. 1.
Qualified readers
Based
upon the Federal Rules of Evidence, when Qualified Readers are utilized, they
must accurately reflect the original written material without abridgement when
reading. However, within a reasonable time frame, not to exceed two weeks, after
providing the information through a qualified reader, the information must be
provided in a fixed format depending upon the needs of the patient. Qualified
reader, in the Kaiser context, means a Kaiser employee who possesses the skills
to read and pronounce accurately standard American English or the language of
the patient, to read and pronounce medical terms and to read and pronounce
medical-legal terms. 2.
Taped Texts Based
upon the Federal Rules of Evidence Taped Texts must accurately reflect the
original written text without abridgement. Taped texts may be used by Kaiser as
an alternative format. 3.
Audio Recordings Based
upon the Federal Rules of Evidence Audio Recordings must accurately reflect the
original written or oral material without abridgement. Audio recordings may be used by Kaiser as an alternative format. 4.
Braille Materials The
Braille Authority of North America (BANA) and the National Library Service for
the Blind and Physically Handicapped (NLS) defines Braille.
Literary Braille, as officially approved, comprises two grades. Grade 1
Braille is in full spelling and consists of the letters of the alphabet,
punctuation, numbers, and a number of composition signs which are special to
Braille. Grade 2 Braille consists of Grade 1 and 189 contractions and short-form
words, and should be known as "English Braille." However, uncontracted
Braille should be designated as "English Braille Code Grade I." The
parties agree that if Kaiser uses Braille for written materials, it must be
available in grade 1 or 2, or such material shall be available in alternative
format immediately upon request in situations involving critical patient care.
Critical patient care is defined as situations requiring the patient to read,
understand and acknowledge critical written information related to that
patient's immediate medical treatment. Immediate medical treatment means the
administration of drugs, rehabilitation, dietary strategies or other medical
techniques designed to treat an emergency medical condition. 5.
Large Print Materials Type is measured in points from the
bottom of the lowest letter (for example, the tail of the letter "y")
to the tallest capital; type one-inch high measures 72 points. Most adult print
is set in 10- to 12-point type. The Library of Congress states the minimum size
for large-print materials is 14-point type. The Library of Congress states that
most large-print materials are commonly available in 16- to 18-point type. Based
upon this information, the parties agree that Kaiser generated written materials
will be available in at least 14-point upon request. If a Kaiser member requires
written materials in 15 to 18 point, Kaiser shall deliver the requested material
in 14-point and deliver the requested material in the requested higher point
within a reasonable time period. 6.
Other Effective Methods Of Making Visually Delivered Materials Available To
Individuals With Visual Impairments And Other Similar Services And Actions. If
Kaiser, in the future, develops other effective methods and similar services and
actions of providing information effectively to the Core Senses of Kaiser
members with visual impairments that are equal to the Five Core Methods than
Kaiser may use those methods. Other effective methods and similar services and
actions may include signage or mapping, audio description services, secondary
auditory programs (SAP), telebraillers, reading machines and other new assistive
technology. 7.
Acquisition Or Modification Of Equipment Or Devices Kaiser
agrees that equipment or devices are necessary to provide auxiliary aids and
related services. The parties agree that Kaiser may use existing equipment or
devices as long as such equipment or devices results in effective communication
with Kaiser members with visual impairments. The parties agree that Kaiser may
use modified existing equipment or devices as long as such equipment or devices
results in effective communication with Kaiser members with visual impairments.
The parties agree that Kaiser may use newly acquired equipment or devices as
long as such equipment or devices results in effective communication with Kaiser
members with visual impairments. 8.
Minimum Standards This
Agreement sets minimum effective communication standards in light of the
flexibility of the auxiliary and related services requirement. Also, this
Agreement delineates Five Core Methods of providing auxiliary aids as minimum
standards of effective communication with Kaiser members with vision
impairments. It is understood that Kaiser's Communication Access Solutions
Initiative for persons with vision impairments may modify, replace, and/or
supplement the Five Core Methods. 9.
Reporting In light of the Metzler v. Kaiser Foundation Health Plan, Inc., (Metzler) Agreement this Agreement will not duplicate sections IV 20 and V 27 of Metzler as to the training programs as long as the training involves effective communication methods including the five Core Methods. Also, this Agreement will not duplicate sections V 22c and VI 33 of Metzler as to the written reports as long as the reports include an evaluation of effective communication methods, the five Core Methods, other similar services and actions and equipment and devices and forward said reports to Plaintiffs' Counsel within the same time periods specified in sections V 22c and VI 33 of Metzler. Kaiser agrees that Plaintiffs' Counsel's rate per hour shall be three hundred and fifty dollars ($350.00) for reviewing and responding to said reports and Kaiser agrees to pay said rate for the time spent for reviewing and responding to said reports.
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