Tamara v. The Board of Directors of the Stanford Hospital and Clinics et al

Filing 23

Order Granting 20 Stipulation re: Consent Decree. The Clerk shall close this file. Signed by Hon. Edward J. Davila on 5/20/2016. (ecg, COURT STAFF) (Filed on 5/20/2016) Modified text on 5/20/2016 (ecg, COURT STAFF).

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PAUL L. REIN, State Bar No. 43053
CELIA MCGUINNESS, State Bar No. 159420
CATHERINE M. CABALO, State Bar No. 248198
LAW OFFICES OF PAUL L. REIN
200 Lakeside Drive, Suite A
Oakland, CA 94612
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorneys for Plaintiff
ABIGAYIL TAMARA
MICHAEL T. LUCEY (SBN: 099927)
MICHAEL D. BRUNO (SBN: 166805)
GENEVA A. COLLINS (SBN: 187023)
GORDON & REES LLP
275 Battery Street, Suite 2000
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendants
STANFORD HEALTH CARE (erroneously
sued herein as “THE BOARD OF
DIRECTORS OF THE STANFORD
HOSPITAL AND CLINICS and THE
LELAND STANFORD JR., UNIVERSITY
BOARD OF TRUSTEES”)

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ABIGAYIL TAMARA,

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Plaintiff,

Civil Rights

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v.

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THE BOARD OF DIRECTORS OF THE
STANFORD HOSPITAL AND CLINICS;
THE LELAND STANFORD, JR.,
UNIVERSITY BOARD OF TRUSTEES; and
DOES 1-20, Inclusive,

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Case No. 5:15-cv-02158 EJD

Defendants.

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CONSENT DECREE & ORDER AS
TO INJUNCTIVE RELIEF ONLY

CONSENT DECREE AND [PROPOSED]
ORDER AS TO INJUNCTIVE RELIEF
ONLY

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1. Plaintiff Abigayil Tamara filed a Complaint in this action on May 13, 2015, to enforce

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provisions of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101

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et seq., and California civil rights laws and to obtain recovery of damages for

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discriminatory experiences, denial of access, and denial of civil rights against Defendant

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Stanford Health Care (erroneously sued as “The Board of Directors of the Stanford

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Hospital and Clinic and The Leland Stanford, Jr., University Board of Trustees”)

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(“Defendant”), relating to disability discrimination at Defendant’’ public

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accommodations as of September 12, 2013, and continuing. Plaintiff has alleged that

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Defendant’s violated Title III of the ADA and sections 51, 52, 54, and 54.1 of the

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California Civil Code by failing to provide full and equal access to service dog users at

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the facilities at 3 Pasteur Drive, Stanford, California, known as Stanford Health Care.

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Defendant denied the allegations.

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2. In order to avoid the costs, expense, and uncertainty of protracted litigation, Plaintiff and

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Defendants (together the “Parties”) agree to entry of this Consent Decree and Order to

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resolve all claims regarding injunctive relief raised in the Complaint without the need for

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protracted litigation. Accordingly, the Parties agree to the entry of this Order without

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trial or further adjudication of any issues of fact or law concerning Plaintiff’s claims for

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injunctive relief.

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JURISDICTION:
3. The Parties to this Consent Decree and Order agree that the Court has jurisdiction of this

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matter pursuant to 28 U.S.C. section 1331 for alleged violations of the Americans with

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Disabilities Act of 1990, 42 U.S.C. sections 12101 et seq. and pursuant to supplemental

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jurisdiction for alleged violations of California Civil Code sections 51, 52, 54, and 54.1.

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WHEREFORE, the Parties to this Consent Decree hereby agree and stipulate to the Court's entry

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of this Consent Decree and Order, which provide as follows:

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-2CONSENT DECREE & ORDER AS
TO INJUNCTIVE RELIEF ONLY
Case No. 15-cv-02158 EJD

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SETTLEMENT OF INJUNCTIVE RELIEF:

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4. This Order shall be a full, complete, and final disposition and settlement of Plaintiff’s

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claims against Defendants for injunctive relief that have arisen out of the subject

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Complaint.

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5. Within 14 days of signing this agreement Defendants will implement the written service
animal policy attached and incorporated herewith as Exhibit A.
6. Within 45 days of implementing the policy at Exhibit A Defendant will provide in-person

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training to its Guest Services and Risk Management personnel on the implementation of

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the policy. All other relevant employees will be trained on the implementation of the

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policy on a rolling basis as part of Defendant’s usual workplace training practices.

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7. Within 60 days of implementing the policy at Exhibit A Defendants will make this policy

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available to people with disabilities in alternative formats, including but not limited to

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making the policy available on its website in a format meeting WCAG 2.0, Level AA –

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or a substantially equivalent standard. For people with disabilities who cannot use the

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website, the policy will be made available upon request in Braille and large print format

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within a reasonable time.

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ENTIRE CONSENT DECREE AND ORDER:
8. This Consent Decree and Order and Exhibit A constitute the entire agreement between

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the signing Parties on the matters of injunctive relief, and no other statement, promise, or

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agreement, either written or oral, made by any of the Parties or agents of any of the

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Parties that is not contained in this written Consent Decree and Order, shall be

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enforceable regarding the matters of injunctive relief described herein.

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CONSENT DECREE AND ORDER BINDING ON PARTIES AND SUCCESSORS IN
INTEREST:
9. This Consent Decree and Order shall be binding on Plaintiff, Defendants, and any
successors-in-interest. Defendants have a duty to so notify all such successors-in-interest
-3CONSENT DECREE & ORDER AS
TO INJUNCTIVE RELIEF ONLY
Case No. 15-cv-02158 EJD

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of the existence and terms of this Consent Decree and Order during the period of the

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Court's jurisdiction of this Consent Decree and Order.

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MUTUAL RELEASE AND WAIVER OF CIVIL CODE SECTION 1542 AS TO
INJUNCTIVE RELIEF ONLY:
10. Each of the Parties to this Consent Decree and Order understands and agrees that there is
a risk and possibility that, subsequent to the execution of this Consent Decree and Order,
any or all of them will incur, suffer, or experience some further loss or damage with
respect to the lawsuit that is unknown or unanticipated at the time this Consent Decree
and Order is signed. Except for all obligations required in this Consent Decree and
Order, the Parties intend that this Consent Decree and Order apply to all such further loss
with respect to the lawsuit, except those caused by the Parties subsequent to the execution
of this Consent Decree and Order. Therefore, except for all obligations required in this
Consent Decree and Order, this Consent Decree and Order shall apply to and cover any
and all claims, demands, actions, and causes of action by the Parties to this Consent
Decree with respect to the lawsuit, whether the same are known, unknown, or hereafter
discovered or ascertained, and the provisions of Section 1542 of the California Civil
Code are hereby expressly waived. Section 1542 provides as follows:

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A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM OR HER MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR.

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This waiver applies to the injunctive relief aspects of this action only and does not

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include resolution of Plaintiff’s claims for damages, attorneys’ fees, litigation expenses,

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and costs.

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11. Except for all obligations required in this Consent Decree and Order –and exclusive of

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Plaintiff’s continuing claims for damages, statutory attorneys’ fees, litigation expenses,

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and costs– each of the Parties to this Consent Decree and Order, on behalf of each, their

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respective agents, representatives, predecessors, successors, heirs, partners, and assigns,
-4CONSENT DECREE & ORDER AS
TO INJUNCTIVE RELIEF ONLY
Case No. 15-cv-02158 EJD

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releases and forever discharges each other Party and all officers, directors, trustees,

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shareholders, subsidiaries, joint venturers, partners, employees, agents, attorneys,

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insurance carriers, heirs, predecessors, and representatives of each other Party, from all

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claims, demands, actions, and causes of action of whatever kind or nature, presently

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known or unknown, arising out of or in any way connected with the lawsuit.

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TERM OF THE CONSENT DECREE AND ORDER:
12. This Consent Decree and Order shall be in full force and effect for a period of sixty (60)
months after the date of entry of this Consent Decree and Order by the Court.

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SEVERABILITY:
13. If any term of this Consent Decree and Order is determined by any court to be

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unenforceable, the other terms of this Consent Decree and Order shall nonetheless remain

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in full force and effect.

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SIGNATORIES BIND PARTIES:
14. Signatories on the behalf of the Parties represent that they are authorized to bind the

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Parties to this Consent Decree and Order. This Consent Decree and Order may be signed

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in counterparts and a facsimile signature shall have the same force and effect as an

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original signature.

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END OF PAGE.
SIGNATURES CONTINUE ON THE NEXT PAGE AND ORDER IS AT THE END OF
THE DOCUMENT.

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-5CONSENT DECREE & ORDER AS
TO INJUNCTIVE RELIEF ONLY
Case No. 15-cv-02158 EJD

ORDER

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Pursuant to stipulation, and for good cause shown, IT IS SO ORDERED.

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The Clerk shall close this file.

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5/20
Dated: _________, 2016

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__________________________________
Honorable Edward J. Davila
United States District Court Judge

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1106291/27891432v.1

-7CONSENT DECREE & ORDER AS
TO INJUNCTIVE RELIEF ONLY
Case No. 15-cv-02158 EJD

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PAUL L. REIN, State Bar No. 43053
CELIA MCGUINNESS, State Bar No. 159420
CATHERINE M. CABALO, State Bar No. 248198
LAW OFFICES OF PAUL L. REIN
200 Lakeside Drive, Suite A
Oakland, CA 94612
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorneys for Plaintiff
ABIGAYIL TAMARA
MICHAEL T. LUCEY (SBN: 099927)
MICHAEL D. BRUNO (SBN: 166805)
GENEVA A. COLLINS (SBN: 187023)
GORDON & REES LLP
275 Battery Street, Suite 2000
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendants
STANFORD HEALTH CARE (erroneously
sued herein as “THE BOARD OF
DIRECTORS OF THE STANFORD
HOSPITAL AND CLINICS and THE
LELAND STANFORD JR., UNIVERSITY
BOARD OF TRUSTEES”)

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ABIGAYIL TAMARA,

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Plaintiff,

Case No. 5:15-cv-02158 EJD
Civil Rights

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v.

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THE BOARD OF DIRECTORS OF THE
STANFORD HOSPITAL AND CLINICS;
THE LELAND STANFORD, JR.,
UNIVERSITY BOARD OF TRUSTEES; and
DOES 1-20, Inclusive,

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EXHIBIT A TO CONSENT DECREE
AND [PROPOSED] ORDER AS TO
INJUNCTIVE RELIEF ONLY

Defendants.

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EXHIBIT A CONSENT DECREE & ORDER AS
TO INJUNCTIVE RELIEF ONLY
Case No. 15-cv-02158 EJD

S:\CASES\STANFORD HOSPITAL\Pleadings\Settlement\Exhibit A Cover Sheet.docx

Stanford Hospital and Clinics

Last Approval Date:
September 2014

Name of Policy:
Service Animals and Comfort/Emotional Support Dogs
Departments Affected:
All Departments
I.

PURPOSE:
A.
To comply with requirements of the Americans with Disabilities Act
(ADA), the Disabled Persons Act, the U.S. Department of Justice’s
revised final regulations implementing the ADA, the Unruh Civil
Rights Act, and other laws and regulations related to persons with
disabilities
B.
To ensure that service animals accompany patients and visitors with
disabilities in all areas of Stanford Hospital & Clinics (SHC) where
public access is normally allowed, which includes most patient areas,
except as specified in sections IV (A - C, G).
C.
To provide guidelines for staff to identify service animals when they
encounter a dog or miniature horse in the hospital.

II.

POLICY:
A.
It is the policy of SHC that persons with disabilities will not be
discriminated against and that they will have full and equal access,
services and treatment.
B.
All patients and visitors accompanied by a dog or miniature horse
that is individually trained to do work or perform tasks for a disabled
person must be permitted to enter all areas of SHC open to the
general public, which includes most patient areas.
C.
SHC staff shall use minimal inquiry when the work, service or tasks
performed by the dog or miniature horse are not obvious and
apparent.

III.

DEFINITIONS:
A.
Individual with a Disability — A person who:
1. Has a physical or mental impairment that substantially limits
one or more major life activities;
2. Has a record of such an impairment; or
3. Is perceived by others as having such an impairment
B.

Service Animal — Only dogs (excludes other species of animals)
that are individually trained to do work or perform tasks for
people with disabilities qualify as service animals.
I. Service animals recognize and respond to needs. Examples
include, but are not limited to:
a. Guiding vision impaired
b. Alerting hearing impaired
c. Pulling wheelchair
d. Retrieving items

Page 1 of 10

Stanford Hospital and Clinics

Last Approval Date:
September 2014

Name of Policy:
Service Animals and Comfort/Emotional Support Dogs
Departments Affected:
All Departments

Page 2 of 10

e.
f.
g.
h.

Stability and ambulation
Alerting or protecting person having seizure
Reminding person to take medication
Calming person with Post-Traumatic Stress Disorder
during an anxiety attack
i. Preventing or interrupting impulsive or destructive behavior
j. Removing disoriented individuals from dangerous situations
C.

Comfort / Emotional Support Dogs
1. ADA - Dogs that solely provide companionship, comfort, and
emotional support are not service animals under the ADA.
a. Companionship, comfort and emotional support do not
constitute work or tasks
2. California law — Under the Unruh Civil Rights Act, the
Department of Fair Employment and Housing may investigate
denials of accommodation for access to public entities (ex:
hospitals) regarding comfort/emotional support dogs.
a. Denying accommodation of a comfort/emotional
support dog in a public entity (ex: hospital) may result in
a complaint to the Department of Fair Housing and
Employment for violation of the Unruh Civil Rights Act.

D.
Direct Threat - A significant risk of substantial harm to the
health or safety of others that cannot be eliminated or mitigated by a
reasonable modification of practices or procedures or the provision of
auxiliary aids or services.
1. SHC must complete an individualized assessment when determining
whether the service animal poses a direct threat based upon:
a. Reasonable judgment that relies on current medical
knowledge or on the best available objective evidence;
b. The nature, duration, and severity of the risk;
c. Probability that the potential injury will actually occur; and
d. Whether reasonable modifications of policies,
practices or procedures or provisions of auxiliary
aids or services will mitigate the risk.
E.
Fundamental Alteration — A change that is so significant that it
alters the nature of the facility or service offered. For example, service
animals are generally prohibited from the operating room and burn units,
which are not open to the public and require strict hygiene and protective
barriers that could not be reasonably imposed on the service animal.
Allowing a service animal in areas such as the operating room would require
a fundamental alteration of the nature of the facility.

Stanford Hospital and Clinics

Last Approval Date:
September 2014

Name of Policy:
Service Animals and Comfort/Emotional Support Dogs
Departments Affected:
All Departments
IV.

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PROCEDURE:
A.
Permitting Service Animals - Service animals shall be permitted
in all areas of SHC that are open to the public, including most
patient areas, provided the service animal does not:
1. Pose a direct threat; or
2. Fundamentally alter SHC’s operations, policies,
practices or procedures.
B.

Excluding / Removing Service Animals and/or Comfort /
Emotional Support Dogs - Any decision to exclude service animals
and/or comfort/emotional support dogs from SHC shall be made
only after an individualized assessment that the animal poses a
direct threat to the health or safety of others which cannot be
mitigated by modifications of policies or procedures or the provision
of auxiliary aids or services.
1. The individualized assessment of direct threat shall be conducted
by the department manager in consultation with other services,
including, but not limited to Infection Control, Guest Services and
Risk Management.
2. The individualized assessment of direct threat must be based on reasonable
judgment that relies on current medical knowledge or on the best available
objective evidence to ascertain:
a. The nature, duration, and severity of the risk;
b. The probability that the potential injury will actually occur; and
c. Whether reasonable modifications of policies,
practices or procedures or provisions of auxiliary
aids or services will mitigate the risk

C.

Restricted Areas — While service animals are generally
permitted in the hospital, they are restricted from entering
operating rooms and other sterile areas, and they may be restricted
from patient care units housing immunosuppressed patients and
isolation for infectious precautions, if SHC determines after an
individualized assessment in accordance with Section IV.B that
the service animal poses a direct threat to the health or safety of
others or would fundamentally alters the nature of the goods,
services, facilities, privileges, advantages, or accommodations
SCH provides to the public.

D.

Staff Inquiry - When it is not obvious or apparent what service,
task or work the dog performs, staff may ask two questions only:
1. Is the dog a service animal required because of a disability; and

Stanford Hospital and Clinics

Last Approval Date:
September 2014

Name of Policy:
Service Animals and Comfort/Emotional Support Dogs
Departments Affected:
All Departments

Page 4 of 10

2. What work or task has the dog been trained to perform?
a. Under the ADA, staff must rely upon the patient or
visitor’s word that the dog is a service animal and the
description of the service, task or work it performs.
b Utilize the chain of command if there is concern that
the service animal poses a direct threat or would
fundamentally alter SHC and the services provided.
c. After activating internal chain of command, consult with
other departments as needed, including but not limited to
Infection Control, Guest Services and Risk Management.
E.

Staff must not:
1. Ask about the nature or extent of the person’s disability;
2. Require documentation to support service animal status (e.g.,
ID card, proof of certification and training);
3. Ask dog to demonstrate ability to perform service, task or work;
4. Refuse access based upon allergies and fear of dogs;
5. Treat patients and visitors with service animals less favorably;
6. Pet the service animal (May distract from assigned tasks);
7. Feed, clean, toilet or care for the service animal;
8. Ask patient, visitor or handler to remove service animal
from premises, unless an individualized assessment of
direct threat has been completed (See Sections B, C, G).

F.

Requirements for Service Animals — Service animals must be
under the handler’s control at all times via at least one of the
following:
1. Harness
2. Leash
3. Tether
4. Voice control
5. Motion / signal control
6. Other effective controls
7. Exception — The devices listed above need not be used if they:
a. Interfere with the service animal’s work; or
b. Person’s disability prevents using these devices

G.

Legitimate Reasons for Removing the Service Animal
1. The dog poses a direct threat to the health or safety of patients, staff and/or
other visitors that cannot be eliminated by a reasonable modification of the
hospital’s policies, practices, or procedures or the provision of auxiliary
services;

Stanford Hospital and Clinics

Last Approval Date:
September 2014

Name of Policy:
Service Animals and Comfort/Emotional Support Dogs
Departments Affected:
All Departments
2. Dog fundamentally alters the nature of alter the nature of
the goods, services, facilities, privileges, advantages, or
accommodations SHC provides to the public.
3. Dog is out of control and handler does not take effective
action to control it;
a. Disruption (barking, running, jumping);
b. Aggressive behavior (biting, lunging);
4. Not housebroken;
5. Poor hygiene;
6. Dog is ill.

H.

V.

Miniature Horses (IVIH)
1. They are not service animals under the ADA, however they must
be accommodated where reasonable and if individually trained to
do work or perform tasks for people with disabilities.
2. The department manager, in consult with other departments as
needed, must complete an individualized assessment to
determine whether miniature horses can be accommodated. The
four (4) assessment factors are:
a. Whether the MH is housebroken;
b. Whether the MH is under the owner or handler’s control;
c. Whether the facility can accommodate the miniature
horse’s type, size and weight; and
d. Whether the MH’s presence will not compromise
legitimate safety requirements necessary for safe
operations.

COMPLIANCE
A.

B.

All workforce members including employees, contracted staff,
students, volunteers, credentialed medical staff, and individuals
representing or engaging in the practice at SHC are responsible
for ensuring that individuals comply with this policy;
Violations of this policy will be reported to the Department
Manager and any other appropriate Department as determined by
the Department Manager or in accordance with hospital policy.
Violations will be investigated to determine the nature, extent, and
potential risk to the hospital. Workforce members who violate this
policy will be subject to the appropriate disciplinary action up to
and including termination.

Page 5 of 10

Stanford Hospital and Clinics

Last Approval Date:

Name of Policy:
Service Animals and Comfort/Emotional Support Dogs
Departments Affected:
All Departments
VI.

September 2014

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RELATED DOCUMENTS:
Disabled Accessibility and Services Policy
Disability Discrimination Grievance Policy

VII. APPENDICES:
A.
Individualized Service Animal Assessment Tool
VIII. DOCUMENT INFORMATION:
A.
Legal Authority/References
1. Americans with Disabilities Act of 1990 U.S.C. §12181 et seq.
2. 28 CFR §§ 35.104, 35.130, 35.136, 36.104, 36.208, 36.301, 36.302
3. The Rehabilitation Act of 1973, 2a USC §794
4. Cal. Civ. Code §54 — 55.32
5. Cal. Pen. Code §§365.5, 365.6
6. Unruh Civil Rights Act, Cal. Civ. Code §51
B.

Author/Original Date
1. Dana Orquiza, March 7, 2014

C.

Gatekeeper of Original Document
Administrative Manual Coordinators and Editors

D.

Distribution and Training Requirements
1. This policy resides in the Administrative Manual of Stanford
Hospital and Clinics
2. New documents or any revised documents will be distributed
to Administrative Manual holders. The department/unit/clinic
manager will be responsible for communicating this
information to the applicable workforce members.

E.

Review and Renewal Requirements
1. This policy will be reviewed and/or revised every three years or as
required by change of law or practice.

F.

Review and Revision History

G.

Approvals
August 2014, Quality, Patient Safety & Effectiveness Committee
September 2014, SHC Medical Executive Committee
September 2014, SHC Board Credentials, Policies & Procedures
Committee

Stanford Hospital and Clinics

Last Approval Date:

Name of Policy:
Service Animals and Comfort/Emotional Support Dogs
Departments Affected:
All Departments

September 2014

Page 7 of 10

“This document is intended for use by staff of Stanford Hospital & Clinics.
No representations or warranties are made for outside use. Not for outside reproduction
or publication without permission.”

Last Approval Date:

Stanford Hospital and Clinics

September 2014

Name of Policy:
Service Animals and Comfort/Emotional Support Dogs

Page 8 of 10

Departments Affected:
All Departments

Individualized Service Animal Assessment Tool
(Appendix A)
Any decision to exclude or remove a service animal from Stanford Hospital &
Clinics (SHC’s) shall be made only after an individualized assessment completed
by the department manager in collaboration with staff nurses, social work,
physicians, advanced practice professionals and in consultation with other
departments as needed including, but not limited to Infection Control, Guest
Services and Risk Management.
Assessment Date: _________________
Dept. Manager Name/Designee: ____________________
Patient Name:

MRN: _________________

Animal Being Assessed (Circle): Service Dog

Miniature Horse

A. Check All Boxes That Apply to the Animal:
1. Animal poses a direct threat to the health and safety of others
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Not housebroken; has had more than one accident

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Poor hygiene (malodorous, dirt, fleas)



Illness (fever, vomiting, diarrhea, impaired ability to serve patient)



Out of control / disruptive (barking, jumping, running, lunging, biting)

Additional facts:

Stanford Hospital and Clinics

Last Approval Date:

Name of Policy:
Service Animals and Comfort/Emotional Support Dogs
Departments Affected:
All Departments

September 2014

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2. If you have checked any boxes above, please answer the following:
a. Nature of risk animal poses:
b. Duration of the risk the animal poses:
c. Severity of the risk:
d. Probability that injury will occur:
e. What reasonable modifications can be made?

3. Animal fundamentally alters SHC’s operations, policies, practices and procedures
Provide Facts Demonstrating a Fundamental Alteration:

B. Check All Boxes that Apply to the Patient/Handler/Owner
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Refuses or is unable to control the animal (tether, harness, verbal
commands, visual cues)

Stanford Hospital and Clinics

Last Approval Date:

Name of Policy:
Service Animals and Comfort/Emotional Support Dogs
Departments Affected:
All Departments

September 2014

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Refuses or does not designate / provide handler to control animal

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1106291/27891563v.1

Refuses or is unable to feed and care for the animal (ambulation,
toileting)

Does not have friends or family who can control and care for the animal