United States of America v. The Beth Israel Deaconess Medical Center - Settlement Agreement

D. ENFORCEMENT AND REPORTING

31. At any time during the effective dates of this Agreement, the United States reserves the right to inspect, with reasonable notice to counsel, the BIDMC facilities; to request access to records; and to request documentation of compliance with this Agreement.

32. Commencing in 2010, and throughout the term of this Agreement, BIDMC shall provide the United States with an annual report, due on or before October 1 of each year that contains the following:

• a. a detailed written report, including digital photographs, architectural drawings, copies of purchase agreements or orders, and copies of policies and procedures, that demonstrates compliance with the provisions of this Agreement; and

• b. a list of every project for new construction (as defined by the ADA and its regulations) that has commenced, or for which plans have been developed, during the preceding fiscal year, which runs from October 1 to September 30.

The United States will use its best efforts to, in a reasonably prompt manner, advise BIDMC of any ADA violations that are apparent from the materials provided by BIDMC pursuant to this paragraph.

33. If during the implementation of this Agreement, BIDMC determines that, due to reasons beyond its control (e.g. substantial and unexpected change in its financial situation, etc.), it cannot complete work by the dates set forth in this Agreement, BIDMC may seek a reasonable extension of time to complete the work, and the United States will not unreasonably withhold its consent.

34. By no later than three months after the date all work is due to be completed under this Agreement, BIDMC shall provide the United States with a detailed final written report, including digital photographs, architectural drawings, and copies of policies and procedures, that demonstrates compliance with the provisions of this Agreement. The report need not address items for which BIDMC has previously produced reports. In addition, BIDMC shall maintain the written evaluations and reports required by this Agreement for the duration of this Agreement, and shall provide copies of any report(s) to the United States within 30 days of a request.

35. If, based on the reports provided by BIDMC pursuant to this Agreement or other information, the United States finds that BIDMC has failed to comply with the Agreement, the United States agrees to notify BIDMC in writing of the alleged noncompliance and attempt to seek a resolution of the matter with BIDMC. If the parties are unable to reach a resolution within 60 days of the date of the United States' written notification, the United States may seek enforcement of the terms of this Agreement in the United States District Court for the District of Massachusetts. Alternatively, should the parties be unable to reach a resolution within 60 days of the date of the United State's written notification, the United States may bring an action to enforce compliance with the ADA and its implementing regulation.

36. Nothing in this Agreement waives the right of the United States to bring a civil action to enforce this Agreement or any provision thereof.

37. This Agreement constitutes the entire Agreement between the parties relating to the United States' title III compliance review referenced in paragraph 1 above, and Department of Justice matter number 202-36-195, and no other statement, promise or agreement, either written or oral, made by any party or agents or any party that is not contained in this written Agreement, including its attachments, shall be enforceable. This Agreement does not purport to remedy any other potential violations of the ADA or any other federal law. This Agreement does not affect BIDMC's continuing responsibility to comply with all aspects of the ADA.

38. Failure by the United States to enforce this entire Agreement, or any provision thereof with regard to any deadline or any other provision herein, shall not be construed as a waiver of the United States' right to enforce other deadlines and provisions of this Agreement.

38. If any term of this Settlement Agreement is determined by any court to be unenforceable, the other terms of this Agreement shall nonetheless remain in full force and effect, provided, however, that if the severance of any such provision materially alters the rights or obligations of the parties, the Department of Justice and BIDMC shall engage in good faith negotiations in order to adopt mutually agreeable amendments to this Agreement as may be necessary to restore the parties as closely as possible to the initially agreed upon relative rights and obligations.

39. This Agreement shall be binding on BIDMC, its agents, its employees, and any successors or assigns. In the event that BIDMC seeks to transfer or assign any facility owned by it as of the date of this Agreement, and the successor or assign intends to continue the same or similar use of the facility, as a condition of sale, BIDMC shall obtain the written accession of the successor or assign to any obligations remaining under this Agreement for the remaining term of this Agreement.

40. This Agreement is effective October 1, 2009, and expires October 1, 2015.