SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND AURORA HEALTH CARE UNDER THE AMERICANS WITH DISABILITIES ACT

TITLE III COVERAGE AND DETERMINATIONS

4. The Attorney General is responsible for administering and enforcing title III of the ADA, 42 U.S.C. §§ 12181-12189, and the relevant regulation implementing title III, 28 C.F.R. Part 36.

5. Complainants No. 1 and No. 2 have HIV. They therefore have a physical impairment that substantially limits one or more major life activities, including the functions of the immune system, which is a major bodily function. Accordingly, they have a disability within the meaning of 42 U.S.C. § 12102 and 28 C.F.R. § 36.104.

6. Aurora is a not-for-profit health care system headquartered in Milwaukee, Wisconsin and serving more than 90 communities throughout eastern Wisconsin as well as areas in northern Illinois. The system employs over 30,000 caregivers who serve more than 1.2 million patients every year via a comprehensive network of facilities, services and providers, including 15 hospitals, more than 150 medical clinics, an extensive laboratory system, and 70 pharmacies.

7. Aurora is a private entity within the meaning of 42 U.S.C. § 12181(6) and is a public accommodation within the meaning of 42 U.S.C. § 12182(a), because its operations affect commerce and it owns, leases (or leases to), or operates places of public accommodation, including professional offices of health care providers, 42 U.S.C. § 12181(7)(F). See also 28 C.F.R. § 36.104.

8. Under title III of the ADA, no person who owns, leases (or leases to), or operates a place of public accommodation may discriminate against an individual on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation. 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a).

9. Ensuring that medical care providers do not discriminate on the basis of disability is an issue of general public importance. The United States is authorized to investigate alleged violations of title III of the ADA and to bring a civil action in federal court in any case that involves a pattern or practice of discrimination or that raises an issue of general public importance. 42 U.S.C. § 12188(b).

10. A healthcare provider cannot refer a patient with HIV or AIDS to another provider simply because the patient has HIV or AIDS. The referral must be based on the fact that the treatment the patient is seeking is outside the expertise of the provider, not the patient's HIV status alone. 28 C.F.R. § 36.302(b). See Questions and Answers: The Americans with Disabilities Act and Persons with HIV/AIDS, available at www.ada.gov/hiv/ada_q&a_aids.htm.

11. As a result of its investigation, the United States has determined:

Complainant No. 1

1. In August 2015, Aurora employed an orthopedic surgeon at a small medical facility owned and operated by Aurora.

2. For several years, Complainant No. 1 suffered from hip problems. In August 2015, his Aurora primary care physician referred him to an Aurora orthopedic surgeon employed at this facility.

3. On August 6, 2015, Complainant No. 1 visited the orthopedic surgeon for evaluation and care. After examining Complainant No. 1, the orthopedic surgeon advised the complainant that he would need hip replacement surgery.

4. In response to questions about his medical history, Complainant No. 1 advised the orthopedic surgeon that he has HIV. Upon learning this, the orthopedic surgeon stated he would not perform surgery on the complainant because he personally had chosen not to perform surgery on patients with HIV due to the risk of blood borne pathogen transmission. The orthopedic surgeon offered to write a letter to another physician on behalf of the complainant, but did not take any other steps to refer him to another Aurora orthopedic surgeon.

5. After the surgeon refused to accept Complainant No. 1 as a surgical patient, the Aurora orthopedic surgeon did not inform Aurora management that he had declined to perform surgery. Neither Aurora management nor the Aurora orthopedic surgeon followed up with the complainant or arranged for him to be treated by another Aurora orthopedic surgeon. Instead, the complainant searched for and found another surgeon on his own. In October 2015, the complainant was able to secure treatment at a different hospital not affiliated with Aurora.

6. During the two-month period from August 2015, when the surgeon refused to accept Complainant No. 1 as a surgical patient until he located another orthopedic surgeon in October 2015, the complainant continued to suffer significant hip pain, as well as emotional distress because of the discrimination he faced.

Complainant No. 2

7. In January 2016, Aurora employed a urologist at a medical facility located in Waukesha County owned and operated by Aurora.

8. On the afternoon of Friday, January 22, 2016, Complainant No. 2 (who was a resident of a Waukesha area nursing home) and his daughter went to this medical facility for the removal of his catheter. The appointment was listed in Aurora's records as a catheter consult. On the admitting paperwork, complainant's daughter listed her father's infectious disease physician as his primary care doctor.

9. When the Aurora urologist saw Complainant No. 2 in the examination room, he took a full medical history and asked questions about the infectious disease. In response to those questions, the complainant's daughter told the urologist that her father had HIV. After conducting a complete physical examination, the urologist advised against removing the catheter that day and provided a non-discriminatory justification for this recommendation. Specifically, the urologist advised that his usual practice was to remove catheters in the morning so that the patient could be monitored throughout the day in case voiding problems arise. Aurora's written medical record states that the urologist suggested they could plan for a voiding trial on another day.

10. Despite the offer to schedule a voiding trial for another day, the urologist also stated that he was concerned he did not know more about the complainant's HIV status and that he wished to speak with the complainant's infectious disease doctor in order to minimize any transmission risks to the staff during the procedure. In response to the urologist 's concerns, the complainant's daughter advised the urologist that standard precautions—a medically accepted approach to infection control that treats all human blood and certain human body fluids as if they were known to be infectious for HIV and other blood borne pathogens—should eliminate any risk of transmission to the urologist or his staff, but the urologist said that he could not be sure that blood was not in the urine.

11. The catheter was not removed that day. The following week, Complainant No. 2 had his catheter removed at another medical facility.