SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES DEPARTMENT OF JUSTICE AND FISHER FUNERAL HOME COMPLAINT DJ X Background In July 1993, the United States received an administrative complaint alleging a violation of title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. SS 12181-12189, and the implementing regulation, 28 C.F.R. pt. 36., by the Fisher Funeral Home, a private entity in Portsmouth, Virginia, that provides funeral services to the general public. Specifically, the complaint alleged that the Fisher Funeral Home had charged a family $300 more to embalm the remains of their son because he died from complications related to AIDS than it charged to embalm other remains. During the course of its investigation of the complaint, the Department of Justice determined that between July 26, 1992, and November 1993, it was the policy and practice of the Fisher Funeral Home to charge its clients $140.00 for the embalming of "normal remains," $190.00 for "autopsy remains," and $440.00 for "infectious disease remains." The Department of Justice also determined that the Fisher Funeral Home entered into contracts with nine clients during that period which required those clients to pay $440.00 for embalming services because a relative or loved one died from AIDS-related complications or another infectious disease. In November 1993, following the initiation of the Department of Justice investigation, the Fisher Funeral Home changed its pricing policy for embalming services. Since then, the United States and the Fisher Funeral Home have consented to enter into this Settlement Agreement (the "Agreement") without a trial or an adjudication of any issues of fact or law. The United States and the Fisher Funeral Home agree that the Agreement and the resolution of the United States' investigation are in the public interest and that these matters can be resolved as set forth below. AGREEMENT ACCORDINGLY, IT IS HEREBY AGREED THAT: 1. The parties to this settlement are the United States Department of Justice ("United States") and the Fisher Funeral Home. 2. The Fisher Funeral Home is a private entity that provides funeral services to the general public and as such is a public accommodation within the meaning of title III of the ADA, 42 U.S.C. S 12181, and 28 C.F.R. S 36.104. 01-07604 3. During the period between July 26, 1992, and November, 1993, it was the policy and practice of the Fisher Funeral Home to charge its clients $300 more to embalm persons who died from AIDS-related complications or another infectious disease than it charged other clients to embalm persons who did not knowingly die from an infectious disease. In those instances where a person knowingly died from AIDS-related complications or another infectious disease, the Fisher Funeral Home arranged for a trade embalmer to perform the embalming services and the cost of those services was passed on to its clients. In most, if not all, other instances, personnel at the Fisher Funeral Home performed the embalming services on the premises. 4. During the period between July 26, 1992 and November, 1993, the Fisher Funeral Home entered into contracts with nine clients who were required to pay $440.00 for embalming services because a relative or loved one died from AIDS-related complications or another infectious disease. 5. Each of the persons who was embalmed under the terms of the contracts at issue was a person with a disability within the meaning of the ADA, 42 U.S.C. S 12102(2) and 28 C.F.R. S 36.104. 6. Since 1987, the Centers for Disease Control ("CDC"), of the U.S. Department of Health and Human Services, have recommended that health care workers and other personnel exposed to blood and certain other bodily fluids, including morticians, follow "universal precautions" in order to minimize the risk of transmission of the human immunodeficiency virus ("HIV"), the hepatitis B virus ("HBV"), and other bloodborne pathogens. Recommendations for prevention of HIV transmission in health-care settings, 36 Morbidity and Mortality Weekly Report ("MMWR") 1987; 36 (suppl. no. 2S): 1-18S. 7. Funeral home personnel also are subject to the requirements of the Bloodborne Pathogen Rule promulgated by the Occupational Safety and Health Administration ("OSHA") of the U.S. Department of Labor. 29 C.F.R. S 1910.1030 (1991). The Bloodborne Pathogen Rule requires employers to ensure that employees observe universal precautions when they are occupationally exposed to blood and other potentially infectious materials. 29 C.F.R. SS 1910.1030(a) and (d)(1)-(d)(4). 8. "Universal precautions" set forth in the CDC guidelines and the Bloodborne Pathogen Rule, are principles of infection control. The concept of "universal precautions" stresses that all human blood and certain bodily fluids must be assumed to be infectious for HIV, HBV, and other bloodborne pathogens, because persons who are exposed to blood and other potentially infectious bodily fluids are not always in a position to know whether such bodily fluids presently harbor or once harbored an infectious disease. Therefore, health care workers and others, including -2- 01-07605 morticians, should treat all persons as potentially infected with HIV and/or other blood-borne pathogens and adhere rigorously to the use of universal precautions. 9. There is no reasonable basis to believe that the embalming of persons who have died from AIDS-related complications, HBV or any other infectious disease poses a direct or significant threat to the health or safety of others, provided that persons who are occupationally exposed to blood and other potentially infectious materials follow universal precautions as defined by the CDC and by OSHA. 10. Therefore, there is no reasonable basis for charging more to embalm bodies harboring an infectious disease than those that do not knowingly harbor an infectious disease because universal precautions must be followed in all instances. 11. The actions described in paragraphs 3 and 4 above constitute violations of the following provisions of the ADA: the duty to afford the goods and services of a place of public accommodation on an equal basis pursuant to 42 U.S.C. S 12182(b)(1)(A)(ii) and 28 C.F.R. S 36.202(b) of the implementing regulation; the duty to eliminate discriminatory eligibility criteria pursuant to 42 U.S.C. S 12182(b)(2)(A)(ii) and 28 C.F.R. S 36.301 of the implementing regulation; the duty to make reasonable modifications of policies, practices, and procedures pursuant to 42 U.S.C. S 12182(b)(2)(A)(ii) and 28 C.F.R. S 36.302(a); and the duty not to deny equal goods or services to an individual because of the known disability of an individual with whom the individual is known to have a relationship or association pursuant to 42 U.S.C. S 12182(b)(1)(E) and 28 C.F.R. S 36.205 of the implementing regulation. 12. Within 30 days of the effective date of this Agreement, the Fisher Funeral Home shall make a diligent effort to locate the complainant and the other eight clients and pay them the following specified amounts. The complainant shall be paid a sum of $1,500 and the remaining clients shall be paid a sum of $600. Payment shall be made in the form of a check drawn payable to each of the persons who signed the contract and mailed to each of the clients by first-class certified mail. 13. Within 30 days of the effective date of this Agreement, the Fisher Funeral Home shall designate an employee who is charged with the responsibility of ensuring compliance with the ADA. 14. Within 60 days of the effective date of this Agreement, the Fisher Funeral Home shall adopt a written policy, subject to the approval of the Department of Justice, that indicates that the Fisher Funeral Home is committed to providing its services to all persons on an equal basis, without regard to disability, -3- 01-07606 20. This Agreement is a public document. A copy of this document or any information contained in it may be made available to any person by the Fisher Funeral Home or the United States on request. 21. This Agreement constitutes the entire Agreement between the parties on the matters raised herein, and no other statement, promise, or Agreement, either written or oral, made by either party or agents of either party, that is not contained in this written Agreement, shall be enforceable. 22. This Agreement is limited to the facts set forth herein and it does not purport to remedy any other potential violations of the ADA or any other Federal law. This Agreement does not affect the continuing responsibility of the Fisher Funeral Home to comply with all aspects of the ADA. In particular, this Agreement does not affect the duties of the Fisher Funeral Home with regard to the alterations and new construction requirements of the ADA, nor with regard to barrier removal in any facility owned and/or operated by the Fisher Funeral Home. 23. The effective date of this Agreement is the date of the last signature below. This Agreement shall be binding on the Fisher Funeral Home as well as its principals, agents and successors in interest. Agreed and Consented to: For the United States: For the Fisher Funeral Home: DEVAL PATRICK Assistant Attorney General Civil Rights Division JOHN L. WODATCH T. SCOTT GILLIGAN IRENE BOWEN Kepley, MacConnell & Eyrich SHEILA K. DELANEY 525 Vine Street Disability Rights Section Suite 2200 Civil Rights Division Cincinatti, Ohio 45202 U.S. Department of Justice (513) 241-5540 P.O. Box 66738 Washington, D.C. 20035-6738 (202) 307-6309 Signed: January 18, 1996 Signed: December 4, 1995 -5- 01-07607