Voluntary Resolution Agreement Between United States Department of Health and Human Services, Office for Civil Rights and New Jersey Imaging Network

I. Parties to Agreement

  1. The parties to this Voluntary Resolution Agreement ("Agreement") are:
    1. the U.S. Department of Health and Human Services ("HHS"), Office for Civil Rights ("OCR"), pursuant to its jurisdictional authority under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and its implementing regulation, 45 C.F.R. Part 84 ("Section 504"), and under Section 1557 of the Patient Protection and Affordable Care Act, 42 U.S.C. § 18116 and its implementing regulation, 45 C.F.R. Part 92 ("Section 1557"); and
    2. New Jersey Imaging Network ("NJIN"), a New Jersey diagnostic imaging network that participates in Medicare under Title XVIII of the Social Security Act, 42 U.S.C. § 1396 et seq., and in Medicaid under Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq.

II. Background

  1. This matter was initiated by a complaint filed with HHS alleging that NJIN discriminated against the Complainant, who has a mobility-related disability and requires the use of a wheelchair, in violation of Section 504 and Section 1557.
  2. The Complainant alleges that NJIN refused to perform a Mammogram during her scheduled appointment, thereby denying her an equal opportunity to participate in or benefit from NJIN's programs and services on account of her disability.

III. Jurisdiction

  1. HHS is responsible for investigating complaints and conducting compliance reviews to determine if recipients of HHS funding operate their programs and activities in compliance with Section 504 and Section 1557. Where appropriate, OCR is also responsible for negotiating and securing voluntary compliance agreements. If compliance cannot be achieved by voluntary means, HHS may take any action authorized by law. See 45 C.F.R. §§ 84.61, 92.5 (incorporating 45 C.F.R. §§ 80.6-80.10).
  2. NJIN is a comprehensive diagnostic imaging network that was formed through a joint venture between Barnabas Health and RadNet, Inc. NJIN has employees in 18 locations throughout New Jersey and provides various imaging services to patients and referring physicians.
  3. NJIN is a recipient of financial assistance from HHS, through its participation in Medicare, Title XVIII of the Social Security Act, 42 U.S.C. § 1396 et seq., and Medicaid, Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. and is therefore subject to the requirements of Section 504. See 45 C.F.R. § 84.2.
  4. NJIN is also a health program or activity receiving financial assistance from HHS and is therefore subject to the requirements of Section 1557. See 45 C.F.R. § 92.3(a)(l).
  5. Sections 504 and 1557 provide that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of or be subjected to discrimination by reason of disability in any health program or activity receiving financial assistance from HHS. See 29 u.s.c. § 794; 42 u.s.c. § 18116; 45 C.F.R. §§ 84.4(a), 84.52(a)(1); 92.2.
  6. Federal regulations further state that a covered entity may not, in providing an aid, benefit, or service, directly or through contractual or other arrangements, deny an individual with a disability the opportunity to participate in or benefit from that aid, benefit, or service. See 28 C.F.R. 35.130(b)(l)(i); 45 C.F.R. § 84.4(b)(l)(i). Likewise, a covered entity may not, directly or through contractual or other arrangements, provide a qualified individual with a disability with an aid, benefit, or service that is not equal to the aid, benefit, or service provided to others. See 28 C.F.R. 35.130(b)( l)(ii); 45 C.F.R. § 84.4(b)( l)(ii). Nor may the covered entity provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result or to gain the same benefit from the entity's aid, benefit, or service. See 28 C.F.R. 35.130(b)(l)(iii)); 45 C.F.R. § 84.4(b)(l)(iii).

IV. Purpose of Agreement

  1. The Parties agree that it is in the Parties' best interest, and HHS believes that it is in the public interest, to resolve this complaint on mutually agreeable terms without enforcement action or litigation, and therefore have agreed to the terms of this Agreement.
  2. This Agreement is neither an admission of liability by NJIN nor a concession by HHS that their claims are not well-founded. By entering into this Agreement, NJIN is not admitting that any action taken with respect to the Complainant was wrongful, unlawful, or in violation of any local, state or federal act or statute. In consideration of the terms of this Agreement, HHS agrees to refrain from undertaking further investigation of OCR #22-476953 or filing a civil suit in this matter, except as provided in Paragraph 27 of this Agreement. HHS, however, may review NJIN's compliance with this Agreement and/or Section 504 and Section 1557 at any time. Except as related to the facts alleged in the above-mentioned complaint, nothing in this Agreement shall be construed as a waiver by HHS of any right to institute enforcement proceedings against NJIN for violations of any statutes, regulations, or rules administered by HHS or to prevent or limit the right of HHS to obtain relief under Section 504 or Section 1557.

V. Definitions

  1. For the purposes of this Agreement:
    1. the term "Patient" shall be broadly construed to include any individual who is seeking or receiving health care services from NJIN's facilities; and
    2. the term "Companion" shall refer to a family member, friend, or associate of an individual seeking access to a service, program, or activity of NJIN, who along with such individual, is an appropriate person with whom NJIN should communicate.

VI. Obligations

A. General Non-Discrimination Obligations

  1. Nondiscrimination. NJIN, (with respect to any individual who has a disability, any individual who has a record of a disability, or any individual regarded as having a disability), agrees to comply with the requirements of Section 504 and Section 1557, and their implementing regulations, including the following requirements:
    1. NJIN shall not exclude or discriminate against any individual with a disability in the full and equal enjoyment of any aid, benefit, or services it provides. See 29 U.S.C. § 794(a) and 42 u.s.c. § 18116.
    2. NJIN shall not deny any individual on the basis of disability the opportunity to participate in or benefit from its aid, benefit, or services. See 45 C.F.R. §§ 84.4(a), (b)(i) and, as of July 8, 2024, 45 C.F.R. § 84.68(a)-(b); see also and 45 C.F.R. § 92.2(b)(4) and, as of July 5, 2024, 45 C.F.R. § 92.101.
    3. NJIN shall not utilize standards or criteria or methods of administration that have the effect of discriminating on the basis of disability. See 45 C.F.R. § 84.4(b)(4) and, as of July 8, 2024, 45 C.F.R. § 84.68(b)(3); see also45 C.F.R. § 92.2(b)(4) and, as of July 5, 2024, 45 C.F.R. § 92.101.
    4. NJIN shall not limit an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any right, privilege, advantage, or opportunity enjoyed by others receiving an aid, benefit, or service, including access to medical diagnostic equipment. See 45 C.F.R. § 84.4(b)(l)(vii) and, as of July 8, 2024, 45 C.F.R. §§ 84.68(b) and 84.91; see also 45 C.F.R. § 92.2(b)(4) and, as of July 5, 2024, 45
      C.F.R. § 92.101.
  2. Retaliation and Coercion. NJIN shall not retaliate against or coerce any person who made, or is making, a complaint, or who exercised, or is exercising, their rights under Section 504 or Section 1557, or who has assisted or participated in the investigation of any matter covered by this Agreement. See 45 C.F.R. § 84.6; 45 C.F.R. § 92.5 (incorporating 45 C.F.R. §§ 80.6-80.10) and, after July 5, 2024, 45 C.F.R. § 92.301.

B. Policies and Procedures

  1. Non-Discrimination Policies and Procedures. Within forty-five (45) calendar days of the Effective Date of this Agreement, NJIN shall modify its policies and procedures regarding the treatment of all disabled individuals, including Patients and Companions. The modified policies shall clearly state that NJIN shall not discriminate against any individual with a disability in the full and equal enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving an aid, benefit, or service it provides. The modified policies and procedures shall also include, but shall not be limited to, the following:
    1. NJIN will make appointments available during normal business hours, to all patients including, but not limited to, patients with mobility disabilities;
    2. Documentation of patient requests for mobility assistance or other reasonable accommodations including NJIN's response to such requests;
    3. A process for an individualized assessment of patients who may require reasonable accommodations including, but not limited to, patients with mobility impairments;
    4. A description of the accommodations available for patients with mobility impairments;
    5. The name, telephone number, function, and office location of the responsible employee designated pursuant to 45 C.F.R. § 84. 7(a); and
    6. A statement that individuals will not be retaliated against or coerced for exercising the individual's rights under Section 504 or Section 1557, or for making a complaint, participating in, or assisting in the investigation of a complaint regarding any right thereunder.
  2. Approval by HHS. Within forty-five (45) calendar days of the Effective Date of this Agreement, NJIN will submit copies of all policies and procedures that are created and/or modified under this Agreement for review and approval to HHS prior to their implementation. HHS shall review policies and procedures for consistency with Section 504 and Section 1557. HHS will make its best efforts to review the proposed policies and procedures within thirty (30) calendar days of receipt. NJIN will adjust its proposed policies and procedures to reflect any reasonable comments or concerns identified by HHS. HHS will not unreasonably withhold their approval of proposed policies and procedures.

C. Notice of Nondiscrimination

  1. Notice of Nondiscrimination. NJIN shall take appropriate and continuing steps to notify Patients, NJIN personnel, and the public of the rights and protections afforded by and Section 1557 and Section 504, and the following:
    1. That it does not discriminate on the basis of race, color, national origin, sex, age, or disability in its health programs or activities (Nondiscrimination Statement);
    2. How to file a discrimination disability-based complaint with HHS; and
    3. The terms of NJIN's approved non-discrimination policy referenced in Section VI.B.15 of this Agreement.
  2. Within thirty (30) calendar days of HHS's approval of the policies referenced in Section VI.B of this Agreement, NJIN shall provide photographic evidence that it has prominently displayed the Notice of Nondiscrimination in visible locations within all patient waiting areas, and to all interested persons by posting the Notice prominently on the NJIN website.

D. Training

  1. Within sixty (60) calendar days of the approval of policies referenced in Paragraph 15, or within sixty (60) calendar days of hiring, and annually thereafter, NJIN will provide mandatory Section 504 and Section 1557 training for all doctors, employees, staff members, and other individuals who might interact with Patients and/or Companions. The trainer and training materials must be approved by HHS prior to NJIN administering the training. Such training, which can be provided by a third party, will be sufficient in duration and content to train the individual in:
    1. Best practices for interactions with individuals with disabilities;
    2. Techniques for safely assisting individuals with limited mobility to ensure their safe access to and use of medical equipment and examination tables;
    3. NJIN's obligation to make reasonable modifications;
    4. NJIN's non-discrimination policy;
    5. Recommended and required charting procedures governing requests for reasonable modifications;
    6. Types of aids and services available for patients with disabilities including, but not limited to, mobility impairments;
    7. The nonretaliation provisions of Section 504 and Section 1557; and
    8. Any other applicable requirements of this Agreement.

VII. Reporting and Monitoring

  1. Notices to HHS. Unless otherwise provided, all notices, reports, or other such documents required by this Agreement shall be submitted to HHS by email to the Office for Civil Rights, Eastern & Caribbean Region, Regional Manager, Linda.Colon@hhs.gov.
  2. Records. NJIN shall maintain appropriate records to document the information required by this Agreement, and shall make them available, upon request, to HHS, throughout the duration of this Agreement.
  3. Complaints. During the term of this Agreement, NJIN will immediately notify HHS if any individual submits a complaint, charge, or grievance, or files a lawsuit, alleging that NJIN failed to provide any auxiliary aids or services to any individual with a disability. Such notification must be provided in writing within fifteen (15) calendar days of receipt and will include, at a minimum, the nature of the allegation, the name of the individual making the allegation, and any documentation possessed by NJIN or any of its agents or representatives relevant to the allegation.
  4. Compliance Report. NJIN shall provide an initial written report ("Compliance Report") to HHS regarding the status of its compliance with this Agreement within six months of the Effective Date of this Agreement and a new Compliance Report at each subsequent six- month interval for the Duration of this Agreement, i.e., a second Compliance Report within 12 months of the Effective Date of this Agreement (covering the preceding six-month period); a third Compliance Report 18 months after the Effective Date of this Agreement (covering the preceding six-month period), etc.
  5. Required Content for Compliance Reports. Each Compliance Report shall include appropriate documentation of the steps NJIN has taken to comply with each term of this Agreement, including:
    1. Any revised policies and procedures;
    2. The distribution of policies and procedures;
    3. The training required by this Agreement, including the training materials and attendance records; and
    4. The list of any grievance and/or complaints filed by Patients, Companions, or those acting on their behalf regarding allegations of discrimination on the basis of disability, including a description of the allegations, the date filed, the status and/or outcome of each grievance or complaint, and a copy of the grievance itself.

VIII. Enforcement & Miscellaneous

  1. Duration of this Agreement. This Agreement shall terminate two (2) years from its Effective Date, provided HHS determines that NJIN demonstrated compliance with this Agreement, at which point HHS's review and monitoring of this Agreement shall terminate.
  2. Compliance within Two Years. Notwithstanding Paragraph 25, this Agreement will terminate earlier than two years from the Effective Date if HHS determines that NJIN has demonstrated compliance with the terms of this Agreement, Section 504, Section 1557, and their implementing regulations with respect to individuals with disabilities and their participation in and benefit from NJIN's services, programs, and activities, and has maintained that compliance for one year.
  3. Compliance Review and Enforcement. HHS may review compliance with this Agreement or Section 504 and/or Section 1557 at any time. If HHS believes that NJIN has failed to comply in a timely manner with any requirement of this Agreement without obtaining sufficient advance written agreement with HHS for a modification of the relevant terms, HHS will so notify NJIN in writing and will attempt to resolve the issue or issues in good faith. If HHS is unable to reach a satisfactory resolution of the issue or issues raised within thirty (30) calendar days of the date it provides notice to NJIN, DOJ may institute a civil action in federal district court to enforce the terms of this Agreement or Section 504 and Section 1557, and their implementing regulations, or administrative proceedings to suspend, terminate, or refuse to grant or continue HHS financial assistance. HHS may, in such actions, seek any relief available under law.
  4. Non-Waiver. Failure by HHS to initiate any provision of this Agreement is not a waiver of its right to enforce other provisions of this Agreement.
  5. Binding. This Agreement is binding on NJIN and its agents, employees, shareholders, partners, and associates as long as those agents, employees, shareholders, partners, and associates are serving in that capacity. In the event NJIN seeks to transfer or assign all or part of this interest in any entity covered by this Agreement, and the successor or assignee intends to carry on the same or similar use of the entity, as a condition of sale, NJIN shall obtain the written accession of the successor or assign to any obligations remaining under this Agreement for the remaining term of this Agreement.
  6. Entire Agreement. This Agreement constitutes the entire agreement between HHS and NJIN on the matter 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. This Agreement does not purport to remedy any other potential violations of Section 504, Section 1557, or any other federal law. This Agreement does not affect the continuing responsibility of NJIN to comply with all aspects of Section 504 and Section 1557.
  7. Effective Date. The Effective Date of this Agreement is the date of the last signature.
  8. Execution of Agreement. The undersigned agents of the parties represent that they have been fully authorized by their clients to enter into and execute this Agreement under the terms and conditions contained herein.
  9. Publication or Disclosure of Agreement. HHS may publish this Agreement and places no restriction on NJIN's publication of this Agreement. In addition, HHS may be required to disclose material related to this Agreement to any person upon request, consistent with the requirements of the Freedom of Information Act, 5 U.S.C. § 522, and its implementing regulation, 45 C.F.R. Part 5.

Agreed and consented to:

For the United States Department of Health and Human Services, Office for Civil Rights

/s/

Linda C. Colon
Regional Manager, Eastern & Caribbean Region 
Office for Civil Rights
26 Federal Plaza, Room 19-501
New York, NY 10278

Dated: 6/28/2024

For New Jersey Imaging Network

/s/

Peter Sulovski
Vice President of Operations
439 Chestnut Street
Union, New Jersey 07083

Dated: 6/19/2024

Content created by Office for Civil Rights (OCR)
Content last reviewed