Humana Talking Prescription Label and Accessible Information Settlement Agreement.

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The settlement agreement posted here was reached through Structured Negotiations, an alternative dispute resolution process that focuses on collaboration and solution without lawsuits. Working with the American Council of the Blind and blind Humana customers in Structured Negotiations, Humana agreed to provide talking and braille prescription labels to allow blind people and others with print disabilities to access important health and safety information on prescription labels. The agreement also covers other plan information. Humana has also had a long-standing commitment to website accessibility. The Law Office of Lainey Feingold and Linda Dardarian of the Oakland civil rights firm Goldstein, Borgen, Dardarian & Ho represented the blind community in the negotiations. ACB, Lainey and Linda have also negotiated talking prescription agreements with Walmart, Caremark, CVS and Walgreens.

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FINAL SETTLEMENT AGREEMENT REGARDING HUMANA PRESCRIPTION INFORMATION AND OTHER PRINT DOCUMENTS

This Final Settlement Agreement and the related and incorporated document entitled Confidential Addendum to Settlement Agreement (collectively referred to herein as the “Full Agreement”) are entered into as of the Effective Date by and between the following parties: American Council of the Blind (“ACB”), Doug Hall, Diana Martz and Alice Ritchhart (collectively, the “Claimants”), and Humana Inc., Humana Pharmacy Solutions, Inc., and Humana Pharmacy, Inc. and as PrescribeIt Rx (collectively “Humana”). Claimants and Humana are collectively referred to as the “Parties.”

RECITALS

A.
ACB is a non-profit organization that provides advocacy services in the United States on behalf of individuals who are blind or have visual impairments. ACB is incorporated in Washington D.C. and has its place of business in Arlington, Virginia.
B.
Claimants Doug Hall, Diana Martz and Alice Ritchhart are blind and cannot read standard print. Each is a person with a disability within the meaning of federal and state law. Hall, Martz and Ritchhart are Humana members whose benefit plans allow them to obtain prescription medication from Humana Pharmacy, Inc. In negotiations leading to execution of this agreement, Claimants have been represented by Linda M. Dardarian of Goldstein, Borgen, Dardarian & Ho and Lainey Feingold of The Law Office of Lainey Feingold (collectively, “Claimants’ Counsel”).
C.
Humana is a health and wellness company.
D.
Humana offers prescription medications through its mail order business and through approximately twenty PrescribeIT Rx locations in Florida.
E.
In July 2014, Claimants wrote a letter to Humana regarding the alleged inaccessibility for persons with visual impairments of information on labels and warning labels affixed to prescription medication containers, and patient information sheets provided with prescription medications dispensed by Humana, as described in paragraph D above (the allegations of the failure to provide prescription information to persons with visual impairments being the “Claims”). In September 2014, the Parties entered into Structured Negotiations to improve and maintain accessibility for individuals with visual impairments to prescription information that Humana provides with prescription medications and to explore ways to resolve the dispute. During the negotiations the Parties agreed to also discuss the accessibility for blind members of print information provided to Humana plan members.
F.
The Parties have determined that it is in their mutual best interests to resolve all potential claims and disputes between them, including any claims Claimants may have that arise out of or are in any way related to alleged inaccessibility of prescription information provided at Humana Pharmacies.

AGREEMENT

NOW, THEREFORE, the Parties hereby agree as follows:

1. Duration of Agreement.

This Agreement shall become effective on July 1, 2015 (the “Effective Date”) and shall remain in effect until December 31, 2016 (the “Expiration Date”, with the time from the Effective Date through the Expiration Date being the “Term” of the Agreement).

2. Definitions.

As used in this Agreement, the following terms shall be as defined below:

2.1.
Access Laws means the Americans with Disabilities Act (as defined below), Section 504 of the Rehabilitation Act (29 U.S.C. § 794(a), (b)(3)(A)(ii)), and any applicable laws of any state, county or municipality relating to accessibility for persons with disabilities to places of public accommodation, any regulations or guidelines promulgated pursuant to those statutes, or any other applicable disability laws, regulations, or legal requirements.
2.2.
Americans with Disabilities Act or ADA means the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., and the Title III implementing regulations, 28 C.F.R., Part 36.
2.3.
Braille Prescription Labels mean Prescription Labels in braille provided by En-VisionAmerica.
2.4.
Humana’s Accessible Prescription Initiative means the program offering Braille Prescription Labels and Talking Prescription Labels to Persons with Visual Impairments as set forth in this Agreement.
2.5.
Humana Pharmacy means both the mail order pharmacy and the PrescribeIT Rx locations in Florida. Retail pharmacies in any network created and maintained by Humana are specifically excluded from the terms and conditions of this Agreement.
2.6.
Humana Pharmacy Customers with Visual Impairments means Persons with Visual Impairments who obtain at least one Prescription Medication from any Humana Pharmacy.
2.7.
Humana Plan Information means information, including but not limited to, Explanation of Benefits, policies, certificates, evidence of coverage, summary plan descriptions, and plan booklets.
2.8.
Patient Information Sheet means a sheet or sheets of paper that are attached to, or included with a Prescription Container when the Prescription Container is provided to a Humana customer, and which contain detailed instructions and warnings with respect to Prescription Medications.
2.9.
Person with a Visual Impairment means a person who has a physical or mental impairment that substantially limits him or her in the major life activity of seeing.
2.10.
Prescription Container means the bottle, vial, box, tube, or other vessel in which Humana provides the prescription medication(s) to Humana customers. For example, a pill bottle containing prescribed pills, and a box containing a prescribed inhaler, are Prescription Containers.
2.11.
Prescription Label means the label containing the name of the patient, the name of the prescribed medication, and other information that is printed out by Humana pharmacy personnel and affixed to the Prescription Container.
2.12.
Prescription Medication means a medication that is sold by Humana and may be obtained or purchased by Humana customers only when prescribed by a medical professional.
2.13.
Prescription Warning Label means additional information beyond what is contained on the Prescription Label regarding the safe use of Prescription Medications, and is affixed by Humana pharmacy personnel to the Prescription Container.
2.14.
ScripTalk Talking Label System means the method of providing talking prescription information through an RFID chip and the ScripTalk Station. The ScripTalk Talking Label System is manufactured by En-Vision America.
2.15.
ScripTalk Station means the device that enables a Humana Pharmacy Customer with a Visual Impairment to listen to the information coded in the RFID chip that is part of the ScripTalk Talking Label System.
2.16.
Talking Prescription Label means a Prescription Label embedded with an RFID chip that is part of the ScripTalk Talking Label System.

3. Humana’s Responsibilities with respect to the ScripTalk Talking Label System.

3.1.
No later than October 15, 2015 and continuing throughout the term of the Agreement, all Humana Pharmacies will provide Talking Prescription Labels free of charge to Humana Pharmacy Customers with Visual Impairments who have requested them pursuant to Section 6.
3.2.
The Talking Prescription Labels provided pursuant to Section 3.1 will be provided free of charge with each new Prescription Medication and each Prescription Medication refill dispensed by a Humana Pharmacy.
3.3.
Humana will provide Humana Pharmacy Customers with Visual Impairments the information they need to obtain a ScripTalk Station from En-VisionAmerica at no cost. A material consideration of this Agreement is En-Vision America’s policy of providing the ScripTalk Station free of charge to Persons with Visual Impairments. If at any time during the Term of this Agreement En-Vision America ceases to provide the ScripTalk Station free of charge to Humana Customers with Visual Impairments, the Parties will meet and confer to discuss a method of providing an alternative talking prescription labels at no cost to Humana Customers with Visual Impairments. Humana will not assess or consult with a Humana Pharmacy Customer with respect to eligibility for a free ScripTalk Station, and under no circumstances, will Humana provide such a device free of charge to a Humana Pharmacy Customer. Nothing in this section prevents Humana from providing En-VisionAmerica the information it needs to provide a ScripTalk Station free of charge to Persons with Visual Impairments.
3.4.
Nothing in this Full Agreement shall be construed as a limitation on Humana’s right to impose copayments, coinsurance, deductibles or other cost sharing on Humana Pharmacy Customers with Visual Impairments, provided that Humana Pharmacy Customers will not be subject to any such charges or costs related to the provision or use of Braille and Talking Prescription Labels.

4. Humana’s Responsibilities with Respect to Braille Prescription Labels.

4.1. Braille Prescription Labels.
Throughout the Term of the Agreement Humana will provide Braille Prescription Labels free of charge to Humana Pharmacy Customers with Visual Impairments who have requested them pursuant to Section 6. The foregoing is not available at PrescribeIt RX locations; those Members can receive Braille Prescription Labels through Humana Pharmacy and Humana Specialty Pharmacy Mail Order. If during the Term of the Agreement En-Vision America stops providing Braille Prescription Labels to Humana for distribution to Humana Pharmacy Customers, Humana will have no obligation to supply Braille Prescription Labels from En-Vision America to Humana Pharmacy Customers and the Parties will meet and confer to discuss an alternative method for providing braille labels.

5. Fulfilling Requests for Talking Prescription Labels and Braille Prescription Labels.

5.1. Processing Requests from Humana Pharmacy Customers with Visual Impairments.
Humana will accept, process, and fulfill requests for Talking Prescription Labels and/or Braille Prescription Labels when those requests are made by or on behalf of (with proper documented consent) Humana Pharmacy Customers with Visual Impairments through: (i) the toll-free telephone numbers for the specific Humana Pharmacies which is serving the Humana Pharmacy Customer; (ii) staff at a PrescribeIT Rx location; or (iii) pages available on the Humana and websites.
5.2. Timeliness of Delivery.
Humana will deliver Talking Prescription Labels and Braille Prescription Labels as set forth in this Agreement at the same time that the Prescription Medication is provided to the Humana Pharmacy Customer, and within the same time period that the Prescription Medication would have been provided to the customer if he or she had not requested Talking or Braille information.
5.3. Single Request.
Once a Humana Pharmacy Customer with a Visual Impairment makes a request for a Talking Prescription Label or Braille Prescription Label, Humana will provide all subsequent Prescription Medications and refills for that Customer in the format or formats initially requested unless otherwise specified by the Customer.
5.4. Multiple Formats.
Humana Customers with Visual Impairments may request that their Prescription Medications be delivered with both (i) a Talking Prescription Label and (ii) a Braille Prescription Label.

6. Training of Humana Staff Regarding the Accessible Prescription Initiative.

To ensure effective implementation of this Agreement, Humana will ensure that personnel who answer customer inquiries for any Humana Pharmacy, and in-store staff at all PrescribeIT Rx locations, are trained regarding: (1) Humana’s Accessible Prescription Initiative; (2) procedures for receiving, processing, and fulfilling requests for Talking Prescription Label or Braille Prescription Labels; and (3) informing Humana’s customers about the Humana’s Accessible Prescription Initiative.

7. Alternative Formats for Humana Plan Information.

7.1.
No later than October 15, 2015 Humana will provide Claimants with a draft Alternative Format Policy designed to ensure the delivery of alternative formats for Humana Plan Information to Persons with Visual Impairments who are Humana Members.
7.2.
The policy will include, at a minimum, details about how members can request alternative formats, the timeframe for delivery of alternative formats, a statement that alternative formats will be delivered free of charge, and a statement that a member need only make a single request to receive Humana Plan Information in an alternative format.
7.3
The following alternative formats will be included in the Humana Alternative Format Policy: (i) accessible web content that satisfies Web Content Accessibility Guidelines (WCAG) 2.0 Level AA success criteria; (ii) emails and email attachments that that satisfy Web Content Accessibility Guidelines (WCAG) 2.0 Level AA success criteria; (iii) braille documents that satisfy the Braille Authority of North America’s standards for printing and binding braille materials; (iv) large print documents that satisfy the Best Practices and Guidelines for Large Print Documents; (v) audio CDs; (vi) mp3 files; (vii) trained customer service staff.
7.4
Claimants will provide written feedback on the proposed policy that is consistent with this Agreement no later than October 30, 2015 and the Parties will discuss the feedback no later than November 13, 2015. Humana will make best efforts to implement the Alternative Format Policy no later than December 1, 2015. Any disputes about the final policy will be resolved through the Dispute Resolution section of this Agreement.
7.5
As soon as practicable after December 1, 2015, a public-facing version of the final Alternative Format Policy will be included in the Accessibility Resources section of the Humana website. Humana will provide claimants with a draft of the information to be posted and accept feedback on the draft consistent with this Agreement.
7.6
The availability of alternative formats will be included in all print and digital content that references the ability of Humana customers to request Humana Plan Information in languages other than English.
7.7
Humana will train appropriate staff on the Alternative Format Policy to ensure effective implementation of this Agreement. Humana will share a draft of its Alternative Format Policy training materials with Claimants in advance of the training and will consider in good faith all feedback consistent with this Agreement.

8 Meetings with Claimant Representatives.

8.4
Humana and Claimant representatives and Counsel will meet by telephone at least semi-annually during the term of the Agreement to discuss any issues regarding Humana’s Accessible Prescription Initiative and Humana’s Alternative Format Policy. During the first two semi-annual meetings following the Effective Date the parties will discuss any member requests and any future plans for large print prescription labels and large print or braille patient information sheets. No member specific Patient Protected Health Information as defined under the Health Insurance Portability and Accountability Act of 1996, as amended, and the regulations promulgated thereunder (“HIPAA”)will be shared.
8.5
At least ten (10) business days prior to the meeting(s) pursuant to this Section, Claimants and Humana shall submit to the other in writing a list of issues they would like to discuss at the meeting.

9 Joint Press Release.

The Parties will issue a joint press release to announce Humana’s Accessible Prescription Initiative on a mutually agreed upon date as soon as possible after the Talking Prescription Lables are available to Humana Pharmacy Customers with Visual Impairments.

10 Procedures in the Event of Disputes.

10.4 Notice of Non-Compliance.
If any of the Parties believes that another Party has not materially complied with any provision of the Agreement, that Party shall provide the other Party with a written notice of non-compliance containing the following information: (i) the alleged act of non-compliance; (ii) a reference to the specific provision(s) of the Agreement that are involved; (iii) a statement of the remedial action sought by the initiating Party; and (iv) a brief statement of the specific facts, circumstances and legal argument supporting the position of the initiating Party.
10.5 Response.
Within 30 days of receipt of a Notice provided pursuant to Section 10.1, the other Party shall respond to the Party in writing.
10.6 Meet and Confer.
Within two weeks after the response described above, the Parties shall informally meet and confer and attempt to resolve the issues raised in the Notice.
10.7 Submission to Mediation/Binding Arbitration.
10.7.1 If the matters raised in a Notice of Non-Compliance are not resolved within 30 days of the initial meet and confer session required by Section 10.3 above, either Party may submit the unresolved matters to nonbinding mediation before a mediator affiliated with JAMS, or such other mediator as the Parties may jointly designate.
10.7.2 If the dispute is not settled in mediation, it shall be submitted to binding arbitration before an arbitrator affiliated with JAMS. The arbitration hearing shall be conducted in accordance with the JAMS Streamlined Arbitration Rules & Procedures. However, those Rules may be modified as necessary to ensure that the hearing is held as soon as practicable after the submission to arbitration, and that a written decision on the matter is rendered within 60 days of the last hearing date.
10.7.3 The Mediation / Binding Arbitration provisions of this Agreement provide the sole and exclusive means for resolving any dispute that may arise between the Parties pursuant to this Agreement during the Term of this Agreement.

11 Notice or Communication to Parties.

Any notice or communication required or permitted to be given to the Parties hereunder shall be given in writing by email and United States mail, addressed as follows:

To Claimants:

Linda M. Dardarian
Goldstein, Borgen, Dardarian & Ho
300 Lakeside Drive, Suite 1000
Oakland, CA 94612
[email address omitted]

Lainey Feingold
Law Office of Lainey Feingold
1524 Scenic Avenue
Berkeley, CA 94708
[email address omitted]

To Humana:

Matthew Kupferberg
Assistant General Counsel
Humana Inc.
500 West Main Street | Louisville, KY 40202
[email address omitted]

12 Modification in Writing.

No modification of the Agreement shall be effective unless in writing and signed by authorized representatives of all Parties.

13 No Other Representations.

The Parties acknowledge and agree that they execute the Agreement voluntarily and for their own purposes, and that they have not relied upon representations, statements or promises made by any of the other Parties, or by their respective agents or attorneys.

14 Agreement Has Been Read.

The Agreement has been carefully read by each of the Parties, or their responsible officers, and its contents are known and understood by each of the Parties. The Agreement is signed freely by each Party executing it.

15 No Assignment.

No Party to the Agreement has heretofore assigned, transferred or granted, or purported to assign, transfer or grant, any of the claims, demands, or cause or causes of action disposed of by the Agreement.

16 Agreement Binding on Assigns and Successors.

The Agreement shall bind any assigns and successors of the Parties.

17 Force Majeure.

The performance of Humana under this Agreement shall be excused during the period and to the extent that such performance is rendered impossible, impracticable or unduly burdensome due to acts of God, strikes or lockouts, or unavailability of operable parts, equipment or materials through normal supply sources. If Humana seeks to invoke this Section, it shall notify Counsel in writing as soon as reasonably possible, specifying the particular action that could not be performed and the specific reason for the non-performance. Counsel and Humana will thereafter meet and confer regarding an alternative schedule for completion of the action that could not be performed, or an alternative action. Any dispute regarding the applicability of this Section, or any future action to be taken, that remains after the meet and confer session will be handled as a dispute pursuant to Section 11 of this Agreement.

18 No Admission of Liability.

The Parties acknowledge and agree that this Agreement is entered into as a compromise and settlement of the Claims and to avoid the expense of litigation. In negotiating and entering into this Agreement, Humana does not admit, and specifically denies, that it has violated or failed to comply with any Access Laws. The Full Agreement and its terms and provisions shall not be offered or received as evidence for any purpose whatsoever against Humana in any action or proceeding, other than a proceeding to enforce the terms of the Full Agreement.

19 Authority.

The persons executing the Agreement each represent and warrant that he or she has the authority to enter into the Agreement, and to resolve the matters set forth in the Agreement, on behalf of the Party for whom he or she is executing the Agreement, and that no further approval is necessary in order for the Agreement to be binding on the Party for whom he or she is executing.

20 Integrated Agreement.

The Agreement constitutes a single, integrated written contract expressing the entire agreement of the Parties. There is no other agreement, written or oral, express or implied, between the Parties with respect to accessibility of Prescription Information, except this Agreement and the Confidential Addendum.

21 Rules of Construction.

The Parties and their counsel have reviewed and participated in the drafting of the Agreement; and any rule of construction to the effect that ambiguities are construed against the drafting Party shall not apply in the interpretation or construction of the Agreement. Section titles used herein are intended for reference purposes only and are not to be construed as part of the Agreement. The Recitals are integral to the construction and interpretation of the Agreement and are therefore incorporated into the Agreement in their entirety.

22 Original/Execution in Counterparts.

All Parties and their respective counsel shall sign one original copy of this document. An electronic copy is sufficient as an original, and this document may be executed in counterparts.

  • HUMANA Inc.
  • AMERICAN COUNCIL OF THE BLIND
    By: Melanie Brunson, Executive Director
  • DOUG HALL
  • DIANA MARTZ
  • ALICE RITCHHART

Approved as to form:

  • GOLDSTEIN, BORGEN, DARDARIAN & HO
    By: Linda M. Dardarian
    Attorneys for Claimants
  • LAW OFFICE OF LAINEY FEINGOLD
    By: Lainey Feingold, Esq.
    Attorneys for Claimants

Simplified Summary

This is a legal settlement agreement between Humana, the American Council of the Blind, and three blind Humana members.  It is about Humana offering talking prescription labels. Customers who are blind or have dyslexia can ask for the labels through Humana mail order and also at all of Humana’s PrescribeIT pharmacies in Florida.  Humana also offers braille labels and provides plan information in formats that blind people can read.  Humana’s website is also designed to be accessible.  Humana members can phone Humana Pharmacy Call Center at 800-379-0092 to order the new labels and to ask questions.  This agreement was reached without any lawsuit.  Humana and ACB and the members used Structured Negotiations instead.  It is an alternative dispute resolution method that lets people work together to solve problems.  Back to the Humana Settlement Agreement.