Do you have questions about divorce? Most people do. The Common Questions listed below gives you the answers to the questions most often asked about divorce.
Under New Mexico law, is a final judgment of dissolution of marriage appealable?
Yes. If you believe the judge made a mistake in the final divorce decree (also called dissolution of marriage), you can appeal the order. If you choose to do so, you have thirty days after the dissolution to file an appeal. Rule 12-201 NMRA.
Under New Mexico law, how can judicial errors in a family law case be remedied?
If you feel a judge has made an error in your case, you have several potential remedies.
You may bring a motion for a new trial or reconsideration. This means that you are asking the judge to throw out the original decision and have a new trial. You may also ask the judge to reconsider his or her decision, usually because the judge made an error in the decision. The judge may order a new trial, change his decision, or deny the motion. Rule 1-059 NMRA. You must file a new trial motion within thirty days of the judgment. Id.
In certain circumstances, you may be able to ask the trial judge to modify or vacate a dissolution of marriage. Rule 1-060 NMRA. These grounds are limited to (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which would not have been found in time to request a new trial; (3) fraud; (4) the judgment is void (for example, if you were not served properly); (5) it is no longer “equitable” (fair) that the judgment should continue; or (6) any other reason that would justify the judge changing the order. Id. You must request this within a reasonable time, and a request based on reasons (1), (2), or (3) must be brought within one year of the dissolution. Id.
If circumstances have changed since the decree was issued, you may also ask the court to modify the provisions of the divorce decree. NMSA § 40-4-7(B)(2). For instance, you may be able to adjust the amount of spousal support called for under the decree.
Finally, you can appeal your case to the New Mexico Court of Appeals within thirty days of the decree. The Court of Appeals is an error-correcting court. (See: Under New Mexico law, what are the respective functions of trial courts and appellate courts in a family law case?). The Court of Appeals does not consider new evidence, and it will either affirm the judge’s decision, modify the decision, or reverse the decision. It may also “remand” the case to the trial judge, which means it will return the case to the trial judge for additional consideration.
Under New Mexico law, what are the respective functions of trial courts and appellate courts in a family law case?
Trial courts are where your case begins. The trial judge hears testimony from witnesses and receives exhibits. You may hear this (i.e., the testimony and exhibits presented to the trial judge) referred to as “the record.” The judge then evaluates the evidence and makes a decision regarding the dissolution of marriage and any spousal support, child custody and support, and property distribution.
The court of appeals does not receive any new evidence. It reviews “the record” from the trial court, and it decides whether the trial judge made any errors.
Under New Mexico law, what is the difference between divorce and legal separation?
“Divorce” completely ends the marriage or “bonds of matrimony.” Gilmore v. Gilmore, 1988-NMCA-004, ¶ 13, 106 N.M. 788, 791, 750 P.2d 1114, 1117. Once a divorce is complete, the spouses may remarry. In a divorce, the judge will order the marriage dissolved, divide any property, establish any spousal support, determine child custody, and order child support. NMSA §§ 40-4-3, 4-40-7.
“Legal separation” is when the husband and wife have permanently separated and no longer live together (or no longer live together as husband and wife), but the parties remain legally married. NMSA §§ 4-40-3; Gilmore, 1988-NMCA-004, ¶ 13. Sometimes, you may see a “legal separation” called a “divorce from bed and board.” Gilmore, 1988-NMCA-004, ¶ 13.
As with a “divorce,” spouses who have “legally separated” may seek a division of property, custody of the children, and alimony. NMSA § 4-40-3; Gilmore, 1988-NMCA-004, ¶ 13. Unlike “divorce,” “legal separation” does not require a court decree, but New Mexico law does recognize court-sanctioned separations. NMSA § 4-40-3; Gilmore, 1988-NMCA-004, ¶ 12. Spouses may mutually consent to a “legal separation” without going to court, but their agreement must be in writing. NMSA §§ 40-2-4 to -9, 40-4-3; Gilmore, 1988-NMCA-004, ¶ 13.
With legal separation, neither spouse can remarry. NMSA § 30-10-1.
Under New Mexico law, what must be proven to obtain a divorce?
First, before you can seek a divorce in a New Mexico court, one of the spouses must have resided and had “domicile” in the state for at least six months immediately prior to the filing of the divorce petition. NMSA § 40-4-5. “Domicile” means one spouse is physically present and lives in the state with a good-faith intent to stay permanently or indefinitely in New Mexico. Id. Other requirements may apply where one spouse is a military member. Id.
In New Mexico, you can obtain a divorce based on any one of the following grounds: (1) incompatibility; (2) cruel and inhuman treatment; (3) adultery; or (4) abandonment. NMSA § 40-4-1.
New Mexico recognizes a “No-Fault Divorce,” which means that if you are seeking a divorce, you do not need to show any fault by your spouse. Where the ground for divorce is “incompatibility,” the judge does not assess misconduct, fault, or blame. Medina v. Medina, 2006-NMCA-042, 139 N.M. 309, 313, 131 P.3d 696, 700. Rather, “incompatibility” exists when, “because of discord or conflict of personalities, the legitimate ends of the marriage relationship are destroyed preventing any reasonable expectation of reconciliation.” NMSA § 40-4-2. What this means is that you and your spouse cannot reconcile, or resolve, your differences, and the marriage cannot be saved. You may hear terms like “irretrievably broken” or “irreconcilable,” but it generally means the marriage simply cannot be fixed. The judge will ask whether the spouses can reconcile, and if they can’t, the judge will grant the divorce. Pavletich v. Pavletich, 1946-NMSC-034, ¶ 13, 50 N.M. 224, 229, 174 P.2d 826, 829.
While you do not necessarily need to be living separately, courts may wonder if the marriage is truly “irretrievably broken” if you and your spouse continue to reside together. Joy v. Joy, 1987-NMCA-031, ¶ 11, 105 N.M. 571, 574, 734 P.2d 811, 814. Courts generally do not want to separate spouses who have not separated themselves. Id.
Under New Mexico law, what must be proven to obtain a legal separation?
The fundamental requirement for legal separation in New Mexico is permanent separation. NMSA § 40-4-3. Spouses must have (1) permanently separated and (2) no longer live together or no longer live together as husband and wife. Id. You may still live with your spouse, but you must not live together as husband and wife. Id. If these two requirements are met, then a spouse may go to court to ask for a division of property, custody of the children, or alimony without seeking a full divorce. Id.
You do not necessarily need to go to court to legally separate. NMSA §§ 40-2-4 to -9, 40-4-3; Gilmore, 1988-NMCA-004, ¶ 13. If you and your spouse can agree to terms regarding the legal separation, you can put them in writing. NMSA §§ 40-2-4 to -9, 40-4-3; Gilmore, 1988-NMCA-004, ¶ 13.
Under New Mexico law, what is spousal support or alimony?
“Spousal support,” sometimes called “alimony,” is payment of money by one spouse to the other spouse for “maintenance and support” during legal separation or following a divorce. Alimony, BLACK’S LAW DICTIONARY (10th ed. 2014). Spousal support is intended to support the receiving spouse as he or she had been supported during the marriage. You can think of spousal support as a substitute, or continuation, of the right to support. Clark v. Clark, 2014-NMCA-030, ¶ 13, 320 P.3d 991, 995. Spousal support is not a penalty, and it is not intended to punish the paying spouse. Foutz v. Foutz, 1990-NMCA-093, ¶ 8, 110 N.M. 642, 644, 798 P.2d 592, 594. Courts do not take infidelity into account when deciding whether or how much spousal support is appropriate. Id.
A court may award spousal support in several ways. NMSA § 40-4-7(B)(1). The judge may order rehabilitative spousal support (for education, training, etc.); transitional support (to supplement income for a limited time); indefinite spousal support (support for an unlimited time); a single sum to be paid in installments (subject only to the death of the receiving spouse); or a single sum with no contingencies. Id.
Under New Mexico law, what circumstances can excuse the payment of alimony?
agreements of the spouses in contemplation of the divorce or legal separation.
Most likely, if you earn more money or have more assets than your spouse, you will probably have to pay alimony. You can, of course, agree on alimony terms, and you may be able to pay a single sum alimony instead of monthly payments. NMSA § 40-4-7(B)(1).
Your alimony obligation may also change over time. If circumstances change, you may ask the judge to lower the amount of alimony you pay. NMSA § 40-4-7(B)(2). (Your ex-spouse may also seek to modify an order. Id.) The biggest question is, what are the needs of your ex-spouse? Cherpelis v. Cherpelis, 1996-NMCA-037, ¶ 6, 121 N.M. 500, 501-02, 914 P.2d 637, 638-39. Remarriage may terminate any spousal support obligations. Galassi v. Galassi, 2009-NMCA-026, ¶ 23, 145 N.M. 630, 635, 203 P.3d 161, 166. Similarly, a new “live-in” relationship by your ex-spouse may affect your obligation. Cherpelis, 1996-NMCA-037, ¶ 6.
Under New Mexico law, how is the amount of child support calculated?
New Mexico has child support guidelines for the judge to follow. NMSA §§ 40-4-11; 40-4-11.1. The judge does not take into consideration any financial assistance or welfare payments made to, or on behalf of, the children. NMSA § 40-4-11. Generally, child support falls into two categories: “basic visitation” or “shared responsibility.” NMSA § 40-4-11.1(D).
“Basic visitation” means one parent has physical custody and the other parent has visitation less than thirty-five percent of the time. Id. “Shared responsibility” means each parent provides a suitable home for the children and the children spend at least thirty-five percent of the year in each home and the parents significantly share the duties, responsibilities, and expenses of parenting. Id.
In cases of “basic visitation,” you and the other parent will need to provide information regarding your income; the other parent’s income; the number of children you have together; the “basic support schedule” [LINK]; the children’s medical and dental premiums; the costs of work-related child care; additional expenses for the children (e.g., uninsured special medical, dental, and counseling over $100 per child per year; special educational expenses; and transportation or communication costs for long distance visitation). NMSA § 40-4-11.1 Work Sheet A.
In cases of “shared responsibility,” the judge will also consider the amount of time spent living with each parent, but he or she will apply different formulas. NMSA § 40-4-11.1 Work Sheet B.
Depending on certain circumstances, the judge may “impute” income to you or the other parent. Styka v. Styka, 1999-NMCA-002, 126 N.M. 515, 522, 972 P.2d 16, 23. This means that the judge may add income into its calculations. For example, income can be “imputed” to a parent who is unemployed or underemployed and does not act in good faith to seek full time employment. State ex rel. Human Servs. Dep’t v. Kelley, 2003-NMCA-050, ¶ 13, 133 N.M. 510, 513, 64 P.3d 537, 540. In such cases, even if the parent is not trying to avoid paying child support, the judge will ask whether the parent’s career choice is reasonable under the circumstances. Id. ¶ 14.
Under New Mexico law, can a lawyer represent both parties to a divorce?
Normally, attorneys are prohibited from representing two people who are opposing each other in the same case. Rule 16-107 NMRA of the Rules of Professional Conduct.
Under New Mexico law, does a petitioner in a divorce case enjoy any legal rights or benefits not enjoyed by the respondent?
It generally does not matter who files first. However, if you are properly served with divorce papers, then you must file an answer within thirty days or the judge may enter a default judgment against you.
Under New Mexico law, what can a respondent do to contest a divorce?
Since New Mexico recognizes “No-Fault” divorces, there is no “defense” to a divorce. If “incompatibility” exists between the parties and the New Mexico residency requirement is met, the judge must grant the divorce. Spruyt v. Spruyt, 1993-NMSC-020, ¶ 5, 115 N.M. 405, 406, 851 P.2d 1072, 1073. (See: What is Required to Get a Divorce?) However, divorce (or legal separation) will determine your legal rights including alimony, child support, and property division, all of which you can challenge.
Can I take money out of the bank prior to filing for divorce or during the proceedings? Under New Mexico law, how are joint assets treated immediately before and during a divorce proceeding?
However, once divorce or legal separation proceedings (or agreements) begin, the court can divide property, including bank accounts. NMSA § 40-4-3.
Under New Mexico law, can a person deny his or her spouse access to joint property during a divorce proceeding?
New Mexico is a “Community Property” state, which means that most property, including the home, belongs to each spouse. As such, unless a judge issues an order (i.e., says you are allowed to do so), you likely cannot change the locks to keep your spouse out of your marital home.
However, if you are “legally separated” or have begun “divorce” proceedings, you can ask the judge to decide how to divide property. (See: What is the difference between a divorce and a legal separation?) NMSA § 40-4-3; Gilmore v. Gilmore, 1988-NMCA-004, ¶ 13, 106 N.M. 788, 791, 750 P.2d 1114, 1117.
Under New Mexico law, is evidence of counseling services admissible in a divorce case?
Normally, your conversations with a therapist and therapy records are “privileged” and cannot be used in court without your permission. Rule 11-504 NMRA. New Mexico also has a law called the Victim Counselor Confidentiality Act that makes communications between certain counselors and victims of sexual assault or family violence privileged. NMSA § 31-25-1, et seq. (See: What is Domestic Violence?) Medical records, including mental health records, are also covered by the federal Health Insurance Portability and Accountability Act (HIPAA), which prevents disclosure without consent or a court order. 45 C.F.R. § 164.508.
There may be exceptions, but if your spouse wishes to obtain the records or use them, he or she will have to convince the judge of a compelling reason to do so.
How long do divorce cases last?
Under New Mexico law, how is domestic violence legally defined?
“Domestic violence” is sometimes called “family violence.” This means that some form of violence is committed against a family member, or against the person with whom he or she has an intimate relationship or is dating. NMSA § 40-13-2. Family members include present and former spouses, parents in-law, or stepparents; grandparents and grandparents-in-law; children, stepchildren; grandchildren; or co-parents. Id.
Domestic violence includes stalking and sexual assault; incidents resulting in physical harm, severe emotional distress, bodily injury or assault; threats causing imminent fear of bodily injury to any family member; criminal trespass; criminal damage to property; repeatedly driving by a residence or work place; telephone harassment; harassment; or harm or threats to harm to children. Id.
Under New Mexico law, what is collaborative divorce?
Collaborative divorces have been growing in popularity in recent years. Collaborative divorce requires the participation of both parties and focuses on reaching mutual agreement for divorce, the disposition of property, alimony, and child custody. The primary focus is to assist the spouses in respectfully reaching a resolution in a safe environment.
This safe place is established by a “participation agreement,” under which the spouses and their attorneys agree not to go to court. If they cannot resolve the dispute, the attorneys will not represent the spouses in court. This way, the spouses do not need to worry that what they say in the collaborative divorce may be used against them in court. The focus is on taking the adversarial nature of court cases out of the decision making. Mediators, mental health professionals, child evaluators, financial planners, and other professionals may also participate in the collaborative divorce.
Collaborative divorce has been shown to help reduce the impact of conflict on children (and the spouses) and often saves time and money.
My wife / husband filed for divorce. What should I do?
First and foremost, remain calm. Divorce is often a stressful experience for people involved. You should consider if you want to hire an attorney. If you decide you are going to hire an attorney, you should contact her as soon as possible so that she has time to talk to you and respond to the petition.
You must file an answer to the divorce petition within thirty days after it was served on you. Rule 1-012 NMRA. If you do not answer the divorce petition, the judge can enter a default judgment against you, which may include unfavorable terms regarding spousal or child support, property division, or other matters. Rule 1-055 NMRA.
Under New Mexico law, how are child support and alimony different?
Both child support and alimony (also called spousal support) involve one spouse making certain payments to the other spouse, and in both cases, the judge will consider certain factors in deciding how much to award. Both can also be ordered by a judge during legal separation, pending divorce, and after the divorce. NMSA § 40-4-3.
In cases of child support, the spouse is ordered to make payments to the other spouse for support of the child. (See: How much child support will I receive?) With alimony, the spouse is ordered to make payments to the other spouse for the support of the spouse. (See: What is spousal support or alimony?). Child support focuses on the best interests of the child and does not have anything to do with the marriage or relationship of the parents.
My spouse and I have negative equity in our house. How do we deal with that in a divorce?
In divorce proceedings, you and your spouse can divide both assets and debts by agreement, and the judge can order a division of the property. Irwin v. Irwin, 1996-NMCA-007, ¶ 10, 121 N.M. 266, 269, 910 P.2d 342, 345. The court will “equitably,” that is, fairly, divide the property by first looking at the value of the married couple’s “community” property and then deduct the amount of any debts. Id.
If you choose, one spouse may agree to take on the home and the mortgage with the negative equity. You may also wish to do a short-sale of the home (selling the home and taking the loss in equity) and then divide the proceeds from the sale. The circumstances, time, economy, and your financial needs will determine the best course of action for you.


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A taking possession by the mortgagee of the personal property under the power contained in the mortgage is a delivery that satisfies the requirements of the Massachusetts statute in regard to the delivery of goods sold or mortgaged unless recorded.
Goods under attachment may be sold or mortgaged upon notice to the officer as effectively as though a true delivery took place.
the mortgage represented cash advanced at the time it was given.
No order having been made in the bankruptcy court as to whether the lien of the attachment should be preserved for the benefit of the estate, the case is sent back to that court without prejudice to further action on that point.
The facts, which involve the validity of a chattel mortgage and the lien thereof on goods of the bankrupt, are stated in the opinion.
against others than the parties unless the property was delivered to and retained by the mortgagee (Rev.Laws, c. 198, § 1). The district court and the circuit court of appeals held the mortgage void on the ground that the deputy sheriff's possession was exclusive, and that therefore what was done by the mortgagee on May 24 and 25 had no effect. 193 F. 533, 200 F. 747. The main question before us is whether this ruling is right.
We may assume that the trustee in bankruptcy is not a party within the meaning of the Massachusetts act. For, although there have been decisions by the courts of the United States that the assignee under former acts is the bankrupt -- that is to say, that he is a universal successor who, like the executor, represents the person of him to whom he succeeds -- the supreme court of the state has established the construction of the Massachusetts statute. Humphrey v. Tatman, 198 U. S. 91, 198 U. S. 93; Haskell v. Merrill, 179 Mass. 120, 124; Clark v. Williams, 190 Mass. 219, 223. We assume, on the other hand, that if possession was delivered and retained within the meaning of the act at any time before the bankruptcy, the title of the mortgagee will be good. Blanchard v. Cooke, 144 Mass. 207, 227; Keepers v. Fleitmann, 213 Mass. 210, 211; Humphrey v. Tatman, supra. Moreover, a taking possession under the power in the mortgage is a delivery that satisfies the statute. Keepers v. Fleitmann, supra. So the issue is narrowed to the precise point of the ruling below.
is called a change of possession may be accomplished when the goods are in the hands of a third person claiming a lien. Hallgarten v. Oldham, 135 Mass. 1, 9, 10; Union Trust Co. v. Wilson, 198 U. S. 530, 198 U. S. 536. Accordingly, goods under attachment may be sold or mortgaged upon notice to the officer, as effectively as if a true delivery took place. Grant v. Lyman, 4 Met. 470, 477; Mann v. Huston, 1 Gray 250, 253; Clark v. Williams, supra. The acts of the appellant had the same effect as if the mortgagor had been present and assenting, Keepers v. Fleitmann, 213 Mass. 210, and we see in the attachment no sufficient ground for denying him his security. The mortgage embraced after-acquired property, with power of sale and substitution in the mortgagor, but we assume that it was good under Massachusetts law. Blanchard v. Cooke, 144 Mass. 207; Thompson v. Fairbanks, 196 U. S. 516.
Whether or not the lien of the attachment should be preserved for the benefit of the estate, and whether it still is open to the bankruptcy court to make an order to that effect if, on due notice, it should seem just, is not before us. No such order has been made. The decree will be reversed without prejudice to further action upon that point.

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Abstract: Complex aspects of management by life cycle of electrotechnical complexes of the oil-extracting enterprises by a method of the integrated logistic support are considered.
A. B. Petrochenkov, “Regarding Life-Cycle Management of Electrotechnical Complexes in Oil Production”, Russian Electrical Engineering, vol. 83, no.11., pp. 621-627, 2012.
S. V. Bochkarev, A. B. Petrochenkov, A. V. Romodin, The integrated logistic support of operation of electrotechnical products. Perm, Russia: Publishing house of Perm State Technical University, 2009, pp. 283-294.
A. B. Petrochenkov, A. V. Romodin, N. I. Khoroshev, “About one formalized method of an assessment of administrative decisions (on an example of management of electrotechnical objects)”, Scientific and technical sheets Saint Petersburg State Polytechnical University, no. 5(87), pp. 166-171, 2009.
Volume and norms of tests of electric equipment, RD 34.45-51.300-97, 2001.
System of maintenance, control of a technical condition and repair on a technical condition of the oil-field equipment of affiliated oil and gas extraction societies of JSC Lukoil, STP-01-026-2003. JSC Lukoil standard, 2003.
A. B. Petrochenkov, A. V. Romodin, B. V. Kavalerov, L. A. Mylnikov, V. P. Kuprin, Database and control system of the Energy Data Ware database. Perm, Russia: Publishing house of Perm State Technical University, 2008, pp. 260-326.

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On July 30, 2007, Petitioner Steven Fausnaught was convicted of conspiracy to distribute more than 500 grams of methamphetamine and more than 100 kilograms of marijuana in violation of 21 U.S.C. § 846; several counts of distribution and possession with intent to distribute controlled substances in violation of 21 U.S.C. § 841(a)(1); and illegal possession of a firearm while being a user of controlled substances in violation of 18 U.S.C. § 922(g)(3). Doc. 401. On December 29, 2008, Petitioner was sentenced to 292 months in prison. Doc. 527. Since then, Petitioner has filed several motions to challenge his conviction and/or sentence, including the instant motion before the Court, seeking relief pursuant to Fed.R.Civ.P. 60(b) due to extraordinary circumstances. Doc. 749. For the reasons stated below, Petitioner's motion will be denied.
Petitioner's case has been addressed numerous times by the district court and the Third Circuit Court of Appeals over the past decade. He was convicted on July 30, 2007 of several counts related to conspiracy to distribute drugs, including, among other things, conspiracy to distribute and possess with intent to distribute in excess of 500 grams of methamphetamine and in excess of 100 kilograms of marijuana. Doc. 401. On December 29, 2008, Petitioner was sentenced to 292 months in prison, which was the bottom of his advisory sentencing guidelines range. Doc. 527.
On May 20, 2010, the Third Circuit affirmed Petitioner's conviction as well as his sentence. United States v. Fausnaught, 380 Fed.Appx. 198, 204 (3d Cir. 2010). On May 19, 2017, Petitioner filed the instant motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, contending that there was "overwhelming evidence that the sitting judge was suffering from dementia during [his] Trial and Sentencing." Doc. 749 at 2. Petitioner's sole evidentiary support for his argument is a news article from April 1, 2017, which was published more than eight years after his sentencing. The motion is now ripe for disposition.
"Rule 60(b) allows a party to seek relief from a final judgment, and request reopening of his case, under a limited set of circumstances including fraud, mistake, and newly discovered evidence." Gonzalez v. Crosby, 545 U.S. 524, 528, 125 S.Ct. 2641, 2645-46, 162 L.Ed.2d 480 (2005). "The general purpose of Rule 60(b) is to strike a proper balance between the conflicting principles that litigation must be brought to an end and that justice must be done." Coltec Indus., Inc. v. Hobgood, 280 F.3d 262, 271 (3d Cir. 2002) (alterations and internal quotations marks omitted). "The movant under Rule 60(b) 'bears a heavy burden, ' which requires 'more than a showing of the potential significance of the new evidence.'" Bohus v. Beloff, 950 F.2d 919, 930 (3d Cir. 1991) (quoting Plisco v. Union R. Co., 379 F.2d 15, 17 (3d Cir. 1967), cert, denied, 389 U.S. 1014, 88 S.Ct. 590, 19 L.Ed.2d 660(1967)).
Rule 60(b) contains several provisions under which relief may be granted. Of the provisions, two may be relevant in this case: subsection (b)(2), which provides relief for "newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)"; and subsection (b)(6), which is a catch-all provision that permits reopening of the case for "any other reason that justifies relief." Fed.R.Civ.P. 60(b)(2) and (b)(6). It is unclear which provision forms the basis of the Petitioner's motion. However, because a Rule 60(b) motion must be made "no more than a year after the entry of the judgment" in the case of the first three subsections, see Fed. R. Civ. P. 60(c), a motion pursuant to Rule 60(b)(2) would be untimely. Because pro se defendants' motions should be construed liberally "with an eye toward their substance rather than their form, " United States v. Delgado, 363 Fed.Appx. 853, 855 (3d Cir. 2010) (internal citation omitted), the Court will construe the motion as proceeding under Rule 60(b)(6), the catch-all provision. Rule 60(b)(6) carries a high burden; it "provides for extraordinary relief and may only be invoked upon a showing of exceptional circumstances." Coltec Indus., 280 F.3d at 273 (quoting In re Fine Paper Antitrust Litig., 840 F.2d 188 (3d Cir. 1988).
As stated above, Petitioner's motion relies on an April 1, 2017 news article concerning the presiding judge over his trial and sentencing, Judge Edwin Kosik. The article detailed an April 2017 incident when Judge Kosik was hospitalized after being found in a wooded area outside Scranton due to memory loss. Doc. 749 at 2. Petitioner claims that Judge Kosik was "found sleeping on the ground in a park, within one hundred yards of his car, " and he further claims that Judge Kosik "is presumably suffering from severe mental deterioration, dementia. Judge Kosik is, in fact, in the latter stages of dementia...Judge Kosik is at what is often called 'the dignity stage' of dementia because to salvage what little dignity he can is the best for which he can hope." Id. at 4. However, none of these details are found in the short news clipping attached to the motion; it is therefore unclear upon which sources (if any) Petitioner relies for these claims. See Doc. 749 at 11.
Q: You never mentioned that Steve Fausnaught sold you methamphetamine, is that correct?


By Kristine Kroenke and Dean Thomson. Dean is a member of the firm’s Construction Law Department and can be reached at 612.359.7624 or dthomson@fwhtlaw.com.
This Briefing Paper is a companion to our earlier Briefing Paper on the AIA A201-2017 General Conditions. Like the recently revised A201 General Conditions, new revisions to the AIA B101, Standard Form of Agreement Between Owner and Architect, and the B103, Standard Form of Agreement Between Owner and Architect for a Complex Project, were issued by the AIA in April 2017. This Briefing Paper will highlight some of the more significant changes to the standard forms of these Owner/Architect Agreements.
Many of the changes to the B103 are the same as the changes made to the B101. This Briefing Paper will provide the citation to both documents with the applicable sections of the B103-2017 included in parentheses. However, despite some changes to standardize the language between the two forms, there are a few notable differences between the B101-2017 and the B103-2017, which are also discussed below.
Article 1 – Initial Information – The B101-2017 contains many additions to Article 1 that were previously included in the longer B103-2007, and remain in the B103-2017. For example, § 1.1 now includes Subsections to define the Owner’s program, the Project’s physical characteristics, the Owner’s budget for the Cost of the Work, schedule milestone dates for design and construction, and consultants, among other items. As this type of information is critical for small as well as large projects, these additions to the shorter form are useful.
§ 1.1.6.1 (B103-2017, § 1.1.7 and § 1.1.7.1) – Sustainable Objectives – This new section of the B101-2017 and B103-2017 requires the parties to use the AIA Document E204-2017, Sustainable Projects Exhibit if the “Owner identifies a Sustainable Objective.” This is a potential trap for the unwary if the parties were not anticipating use of the E204-2017 document or are not familiar with it. The parties should be careful to either modify this Section or review the E204-2017. See also § 5.7, which states the Owner shall fulfill its responsibilities under the E204-2017 if it defines a Sustainable Objective in Article 1. Other changes have been made to reflect the addition of the concepts of Sustainable Objective and sustainable design alternatives, including §§ 3.2.5.1, 4.1.1.24, 4.1.3, 5.7 (§5.8 in the B103), 11.8.1.11, 11.10.1.2, and 13.2.3.
§ 1.2 (B103-2017, § 1.2) – Reliance on Initial Information –This Section retains the Architect’s right to rely on the Initial Information provided by the Owner, as well as the language that the Owner and Architect “shall appropriately adjust” the Architect’s compensation and schedule of services if that Initial Information materially changes. However, “Architect’s services” were added to the list of items to be “appropriately” adjusted. A new sentence was also added to emphasize that material changes to the Initial Information “shall” require the Owner to adjust its budget and design and construction milestones as necessary to accommodate those changes. As this Agreement is executed at the very start of the Project, it is highly likely that the Initial Information will change, which has often caused Owners and their counsel to object to the seemingly automatic request for a Change Order by the Architect for additional compensation and time this section creates. Owner’s counsel sometimes instead propose an equitable adjustment to compensation and schedule if warranted by the type and kind of material changes made to the Initial Information.
§ 2.5 (B103-2017, § 2.5) – Insurance – The B101-2017 and the B103-2017 include more robust insurance provisions as compared to the 2007 forms. Previously, the B101-2007 included only a list of insurance types – general liability, automobile liability, workers’ compensation and professional liability – but left it to the Owner and Architect to draft language defining coverage requirements and limits. The B103-2007 insurance requirements were not much more defined. The B101-2017 and the B103-2017 include the same types of liability coverage, but provide more detail on coverage requirements. For example, a useful addition was made to § 2.5.3 to permit the limits of coverage to be reached by a combination of primary and excess CGL policies. Section 2.5.7 also includes a requirement that the Architect name the Owner as an additional insured on the Architect’s CGL and Auto Liability policies, and that such coverage will be primary and non-contributory and apply to both ongoing and completed operations. The requirements listed are fairly common, but the parties should still consider adding further detail, particularly on PL coverage and endorsements.
Article 3 (B103-2017, Article 3) – Scope of Architect’s Basic Services –Several provisions were added to Article 3 to allow the Architect to charge additional fees that may be a surprise to the Owner. The document retains the concept of Basic Services and states that needed or requested services not included in Basic Services qualify as either Additional Services or as the newly named Supplemental Services for which the Owner must pay additional compensation to the Architect. It is hard to understand why needed services should not be included in Basic Services. As a result, many Owners invert this structure and instead list the types of additional or supplemental services that will qualify for additional compensation and then state that any other services necessary for Project or for the Architect to fulfill its standard of care are part of Basic Services. The scope of the Architect’s Basic Services is often a point of contention, and the B101-2017 and B103-2017 could have done more to clarify the scope.
§ 3.1.1 (B103-2017, § 3.1.1) – Management of Architect’s Services –The phrase “consult with the Owner” was deleted in this Section, which generally describes the Architect’s Basic Services. It is not clear why this requirement was deleted as consultation with the Owner is a basic service essential to matching the design to the Owner’s needs and increases the likelihood the Owner will accept the design.
§ 3.1.5 (B103-2017, § 3.1.7) – Communication with Governmental Authorities – Similar to the deletion in § 3.1.1, the reason for the deletion of the Architect’s obligation to consult with governmental authorities “at appropriate times” is also unclear. The documents now allow the Architect to request a change order if it disagrees with the interpretation of the authority having jurisdiction over code compliance (see discussion of § 4.2.1.3 below), so the sooner the issue of code compliance is brought to the fore by consultation with governmental authorities, the better the parties will be protected from a future surprise regarding code compliance.
§ 3.2.3 (B103-2017, § 3.2.3) – Preliminary Evaluation to Owner – It is unclear why the Architect’s obligation to raise sustainability issues with the Owner was deleted from § 3.2.3 – a preliminary evaluation is an appropriate time to raise such questions to avoid inefficient redesign.
§ 3.6.4.3 (B103-2017, § 3.6.4.3) – Architect’s Review of Contractor Designs – This Section discussing the Architect’s responsibilities to review Contractor designs specifically adds that “[t]he Architect’s review shall be for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents.” The added language appears to clarify what the Architect has usually previously insisted was implied in this Section. However, the opportunity was missed to clarify the issue of overall responsibility for coordination and integration of all designs. Coordination and integration of the Instruments of Service on the Project are particularly important if the Contractor has any design/build obligations on a portion of the Work, such as the MEP scope, or if the Project involves a remodel or expansion of an existing structure. To lessen arguments down the road and to improve the resulting Project, someone should be specifically responsible for coordinating all of the designs. As the Architect usually prepares the overall project design, it makes sense to have the Architect include in its Basic Services the coordination of third-party designs with its overall design.
Article 4 (B103-2017, Article 4) – Supplemental and Additional Services – The B101-2017 and B103-2017 include the new concept of “Supplemental Services.” These Supplemental Services are to be paid in addition to the Basic Services as specified in § 11.2, are not part of the Architect’s Basic Services, and are not provided unless designated in the Supplemental Services Table. According to the AIA, Additional Services requests are intended to be used for unforeseen changes, while Supplemental Services are intended for services that are foreseeable at the commencement of the Project, but are not typically included in the Architect’s Basic Services Fee. However, many of the services included in the Supplemental Services table are services many Owners (and some Architects) consider to be Basic Services, such as “multiple preliminary designs” (§ 4.1.1.2); Site evaluation and planning (§ 4.1.1.5); Building Information Model management responsibilities (§ 4.1.1.6); civil engineering (§ 4.1.1.8); landscape design (§ 4.1.1.9); on-site project representation (§ 4.1.1.13); as-designed record drawings (§ 4.1.1.15); as-constructed record drawings (§ 4.1.1.16); multiple bid packages (§ 4.1.1.26); and perhaps others as well. The AIA’s attempt to allow for more opportunities for design professionals to request additional compensation for additional or supplemental services will likely be the most negotiated part of these new documents.
§ 4.1.2 (B103, § 4.1.2) – Description of Supplemental Services – This new section provides a space for the parties to provide additional detail to describe the services designated in the Supplemental Services table. While providing a section for the parties to further define the intended scope of work for each of the items listed in the “Supplemental Services” table is useful, an opportunity was missed to provide longer, more substantive descriptions of these services to assist the parties in understanding what is generally included in each service instead of the short, somewhat vague, descriptions in § 4.1.1.1 through § 4.1.1.30.
§ 4.2.1.3 (B103-2017, § 4.2.1.3) – Changes To Codes, Laws, or Regulations – A common complaint by design professionals is that Code or Building Officials with design approval jurisdiction regularly impose additional design requirements or changes during construction to previously submitted Instruments of Services. Design professionals frequently disagree with these determinations, claiming that they are not proper Code interpretations or do not reflect the applicable design standard of care. Faced with an official decision with which they disagree, the design professional either has to appeal the Official’s decision or revise its designs. As it is often a time consuming (and fruitless) effort to appeal, the design professional usually makes the change demanded by the Official rather than delay the construction of that component of the Project. Disputes over which party should pay the cost of changing the design to comply with the Official’s decision are common; the Owner argues these costs should be borne by the design professional as compliance with Code is expected by the design professional’s standard of care. The revisions to § 4.2.1.3, however, seek to change this outcome. If the Instruments of Service were prepared in accordance with the applicable standard of care (according to the Architect) but nevertheless rejected by the authority, then the Architect is entitled to payment for an Additional Service to make the change ordered by the authority.
§ 4.2.4 (B103-2017, § 4.2.4) – Additional Services for Delayed Construction Completion – This is a new Section that provides another opportunity for the Architect to be paid additional compensation. According to this Section, the Architect is to be paid for Additional Services if its Construction Phase Services are provided more than 60 days after the earlier of the Substantial Completion Date or the expected Substantial Completion date. Given that § 4.2.5 already provides for the Architect to be paid Additional Services if its services are not completed within a specified time frame, this Section could be duplicative of § 4.2.5, although it does provide a few exceptions and also requires the Architect actually to have incurred additional costs in providing the Construction Phase Services after the specified date.
§ 5.12 (B103-2017, § 5.11) – Project Communications – Consistent with changes made to the A201-2017 and with actual practice in the field, communications from the Owner to the Contractor regarding the Contract Documents no longer have to flow through the Architect; instead, the Owner need only include the Architect on communications relating to or affecting the Architect’s services and promptly notify the Architect of the substance of any direct communications between the Owner and Contractor that relate to the Project. Communications with the Architect’s consultants, however, must still be through the Architect.
§ 6.3 (no coordinate change in B103-2017) – Cost of the Work Estimates – Section 6.3 of the B101-2017 recognizes that the Architect has the ability to “recommend” reasonable adjustments to the Owner’s program and Project scope, but it should not, and does not as a practical matter, have the right to control the Owner’s program or Project scope. The Architect also retains the right to include in the Contract Documents alternate designs (not just alternate bids) as may be necessary to adjust the estimated Cost of the Work to meet the Owner’s budget. Once again, the B101-2017 specifies the services that require additional compensation. This Section keeps earlier revisions that eliminated detailed estimates of the Cost of the Work as a Basic Service and now expressly makes detailed estimates (i.e. those prepared on a basis other than current area, volume or similar conceptual estimating technique”) a Supplemental Service.
6.7 (no coordinate change in B103-2017) – Modification of Construction Documents to Meet Budget – This Section includes modifications that provide still more opportunity for the Architect to be paid for Additional Services. This Section applies when proposals from construction bidders exceed the Owner’s budget and the Owner requests the Architect to modify the design to reduce the Cost of the Work. Previously, this Section required the Architect to perform the redesign “without additional compensation.” Under the modified § 6.7, the Architect is entitled to payment for Additional Services if the proposals exceed the Owner’s budget “due to market conditions the Architect could not reasonably anticipate.” Such a change is likely to lead to arguments on what the Architect could reasonably anticipate. Moreover, it also increases the opportunity for arguments on why bidders’ proposals are higher than the Owner’s budget – e.g. are the bids higher than the budget because the Architects’ design was too ambitious or because construction costs have increased since the budget was established? More clarity is needed about when an Additional Service request would be justified in these circumstances because the need to re-design to budget is not an uncommon occurrence.
The B103-2017 treatment of this issue is different from the B101-2017. The revision made to the AIA Document B101-2017 § 6.7 to permit the Architect to claim additional compensation if a re-design is necessary was not made in the AIA Document B103-2017, § 6.6. Instead, under § 6.6 of the B103-2017, if bids exceed the estimated Cost of the Work at the conclusion of the Design Development Phase and the Owner adjusts its program, scope, or quality to reduce the Cost of the Work, then the Architect shall incorporate the revisions in the Construction Documents “without additional compensation.” However, under B103-2017, § 6.3, the Architect would be entitled to compensation for an Additional Service due to the “Cost Consultant’s “inaccuracies or incompleteness in preparing cost estimates, or due to market conditions the Architect could not reasonably anticipate.” The AIA has not yet provided any justification for the different treatment for the same issue between the two documents.
Article 8 – No Indemnity Provision in the B101-2017 – Notably absent from the B101-2017 is a provision requiring the Architect to indemnify the Owner against the Architect’s professional negligence. The absence is particularly notable since the B103-2017, § 8.1.3 (as well as the B103-2007) includes such an indemnity. Again, the AIA has yet to provide any explanation for the different treatment of the same issue between the two documents.
B103-2017 § 8.1.3 – Indemnity – The B103-2017, § 8.1.3 expressly excludes the duty to defend from the Architect’s duty to indemnify the Owner. The standard language continues to limit the Architect’s indemnity to “available proceeds of the insurance coverage required by the Agreement.” There is no similar language in the B101-2017. Limiting indemnity for the Architect’s negligence to available insurance proceeds can be problematic because professional liability insurance does not always cover all the damages caused by professional negligence.
§ 9.6 and § 9.7 (B103-2017, § 9.6 and § 9.7) – Termination for Convenience – If the Owner terminates the Owner/Architect Agreement for convenience or the Architect terminates because the Project has been suspended for more than 90 cumulative days, the B101-2017 and the B103-2017 provide that the Owner shall pay the Architect for services performed prior to termination, Reimbursable Expenses incurred, costs attributable to termination (including termination of consulting agreements), a Termination Fee, and a Licensing Fee if the Owner intends to continue to use the Instruments of Service. However, there is no definition of what the “Termination Fee” would include. Presumably, the AIA intends it to include some amount for lost profit for services not performed since the multiple other categories for which the Architect is now entitled to compensation generally encompass all other fees and costs the Architect might otherwise incur. Therefore, the amount of the “Termination Fee” should be negotiated before the Agreement is executed.
This Briefing Paper has not discussed all of the changes in the B101 and the B103, but has intended to address some of the more significant changes. As with all of the AIA documents, changes can be made to the standard templates. Timely review and negotiation can help the parties develop a contract that addresses the areas where additional clarification is needed or where a different risk allocation is desired.
Fabyanske, Westra, Hart & Thomson, P.A. is pleased to announce that the following six attorneys from the firm were selected by their peers as U.S. News Best Lawyers in America©: Charles Carpenter, Gary Eidson, Marv Fabyanske, Kyle Hart, Dean Thomson and Mark Westra. U.S. News Best Lawyers in America© is one of the oldest and most respected peer-review publications in the legal profession.
Congratulations to the ten attorneys from Fabyanske, Westra, Hart & Thomson, P.A. who have been named 2017 “Minnesota Super Lawyers”. The polling, researching, and selecting of “Super Lawyers” is designed to identify Minnesota lawyers who have attained a high degree of peer recognition and professional achievement. Only five percent of Minnesota attorneys receive this honor. FWHT’s 2017 “Minnesota Super Lawyers” include Scott Anderson, Gary Eidson, Marv Fabyanske, Kyle Hart, Jesse Orman, Greg Spalj, Dean Thomson and Mark Westra. Once again, Kyle Hart was selected as a Top 100 Super Lawyer, and Dean Thomson was selected as a Top 10 Super Lawyer.
Congratulations to the Fabyanske, Westra, Hart & Thomson, P.A. attorney Hugh Brown who has been named 2017 Minnesota “Rising Star”. “Rising Stars” are nominated by their peers and must be 40 years old or under, or have been practicing for 10 years or less. No more than 2.5 percent of the lawyers in the state are named to the list.
Fabyanske Westra Hart & Thomson congratulates shareholder Mark Becker on being elected Chair of the Construction Law Section of the Minnesota State Bar Association for 2017-2018. Mark has served on the Construction Law Section Governing Council since 2012. Mark represents Developers, General Contractors, Architects, Engineers, Subcontractors, and Sureties in negotiating contracts and resolving complex construction disputes.
Tom Vollbrecht is a Program Chair for the Construction Program on Insurance at the ABA/FSLC Mid-Winter Meeting in Washington, D.C. on January 25, 2018. Tom is also a chapter author for the upcoming ABA/FSLC publication, Managing and Litigating the Complex Surety Case (Third Edition), and will be speaking at the Spring Surety Program in Santa Fe, NM on May 10-11, 2018.
This discussion is generalized in nature and should not be considered a substitute for professional advice. © 2017 FWH&T.


The parties (“Parties”) to this Settlement Agreement (“Agreement”) are the United States of America (“United States”) and Highline Medical Center.
Highline Medical Center is a hospital that provides inpatient and outpatient treatment programs, located at 16251 Sylvester Road SW, Burien, Washington. Highline Medical Center’s services include surgery services and an emergency services department.
This matter was initiated by a letter of investigation provided to Highline Medical Center on January 27, 2016, regarding potential violations by Highline Medical Center of Title III of the Americans with Disabilities Act of 1990, as amended (“ADA”), 42 U.S.C. §§ 12181-12189, and the Department of Justice’s implementing regulation, 28 C.F.R. Part 36. The investigation was opened in response to complaints raised by Complainant B.W., who is deaf and uses American Sign Language (“ASL”) as his primary means of communication. Complainant was a patient at Highline Medical Center from January 28, 2014 to January 31, 2014 for a scheduled surgical procedure known as a cervical laminectomy. Complainant alleged that despite making an advanced request for an ASL interpreter to be present before and after his surgery, Highline Medical Center only provided an ASL interpreter prior to his surgery and failed to provide an ASL interpreter for the period after the surgery and at various other times during his medical stay, including during communications with medical staff relating his surgery and recovery therefrom, and discharge instructions. Complainant further alleged that Highline Medical Center failed to provide qualified sign language interpretive services when necessary to ensure effective communication with his wife, who is also deaf, and accompanied Complainant during the surgery at issue. As a result, Complainant alleged that neither he nor his wife were able to effectively communicate with medical staff about important medical matters.
The United States Attorney’s Office for the Western District of Washington (“U.S. Attorney’s Office”) is authorized to investigate alleged violations of Title III of the ADA. 28 C.F.R. §§ 36.502, 36.503. The U.S. Attorney’s Office has the authority to, where appropriate, negotiate and secure the full range of relief available under Title III of the ADA, including equitable/injunctive relief, requiring the provision of auxiliary aids and services, and Seeking monetary damages and a civil penalty.
Complainant B.W. and his companion K.W. are both deaf and as such, are individuals with a “disability” within the meaning of the ADA. 42 U.S.C. § 12102; 28 C.F.R. § 36.104.
Highline Medical Center is a “public accommodation” within the meaning of Title III of the ADA, 42 U.S.C. § 12181(7)(F) and its implementing regulations, 28 C.F.R. § 36.104. The ADA prohibits public accommodations, including hospitals, from discriminating on the basis of disability in the full and equal enjoyment of their goods, services, facilities, privileges, advantages or accommodations. 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a). Discrimination includes failing to take such steps as necessary to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently than any other individual because of the absence of auxiliary aids and services. 42 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303.
Highline Medical Center fully cooperated with the U.S. Attorney’s Office’s investigation in this matter. Based on its investigation, the U.S. Attorney’s Office determined that Highline Medical Center failed to provide appropriate auxiliary aids or services, including a qualified interpreter where necessary, to ensure effective communication with an individual with a disability, including a companion with a disability, for post-operative communications with medical personnel. This included communications regarding the fact that the surgeon found more damage in Complainant’s spine than expected, necessitating a bilateral decompression. Complainant was also unable to effectively communicate regarding the significant pain he was experiencing and was unable to effectively ask questions regarding his condition. Instead, the Hospital relied upon note-writing, despite the fact that Complainant was recovering from general anesthesia, was unable to move his head or neck, and was in significant pain, and was without the use of his reading glasses or hearing aids. Highline Medical Center also failed to provide an ASL interpreter during Complainant’s discharge from the hospital. Further, Highline Medical Center failed to provide an ASL interpreter for Complainant’s companion, his wife, who is also deaf, during both of these times of critical communication. These failures caused significant distress to both Complainant and his wife.
On the basis of these determinations, the U.S. Attorney’s Office concluded that Highline Medical Center denied Complainant and his companion appropriate auxiliary aids and services necessary for effective communication in violation of 42 U.S.C. § 12182(b)(2)(A)(iii) and 28 C.F.R. § 36.303 at times during Complainant’s period of care from January 28 to 31, 2014.
This Agreement is neither an admission of liability by Highline Medical Center nor a concession by the United States that its claims are not well-founded. By entering into this Agreement, Highline Medical Center does not admit the allegations alleged above, or to any violation of law, liability, fault, misconduct, or wrongdoing in connection with those allegations. The Parties have determined that the complaint filed with the United States can be resolved without litigation and have agreed to the terms of this Agreement.
Examples of “Auxiliary Aids and Services” include qualified interpreters provided either on-site or through video remote interpreting (“VRI”) services; note takers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (“TTYs”), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard-of-hearing. 28 C.F.R. § 36.303.
The term “Hospital Personnel” means all Highline Medical Center employees, full-time and part-time, who have or are likely to have direct contact with Patients or Companions as defined herein.
The term “Active Members of the Hospital Medical Staff” means all physicians who are credentialed to provide medical services at Highline Medical Center, whether or not they are direct employees of Highline Medical Center.
The term “Qualified Interpreter” means an interpreter who, via VRI service or an on-site appearance, is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. 28 C.F.R. § 36.104. Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators. For purposes of this Agreement, a Qualified Interpreter must be knowledgeable with medical terminology.
The term “Patient” shall be broadly construed to include any individual who is Seeking access to, or participating in, the goods, services, facilities, privileges, advantages, or accommodations of Highline Medical Center, whether as an inpatient or an outpatient.
The term “Companion” means a person who is deaf or hard of hearing, as defined herein, and is a family member, friend, or associate of an individual Seeking access to, or participating in, the goods, services, facilities, privileges, advantages, or accommodations of Highline Medical Center, who, along with such individual, is an appropriate person with whom the public accommodation should communicate. 28 C.F.R. § 36.303(c)(1)(i).
The term “Deaf” refers to persons who are deaf or late-deafened.
The term “Hard of Hearing” includes persons who have a hearing deficit and who may or may not primarily use visual aids for communication and may or may not use auxiliary aids.
Nondiscrimination. Highline Medical Center shall provide appropriate Auxiliary Aids and Services, including Qualified Interpreters, where such aids and services are necessary to ensure effective communication with Patients and Companions who are Deaf or Hard of Hearing. Pursuant to 42 U.S.C. § 12182(a), Highline Medical Center shall also provide Patients and Companions who are Deaf or Hard of Hearing with the full and equal enjoyment of the services, privileges, facilities, advantages, and accommodations of Highline Medical Center as required by this Agreement and the ADA.
Discrimination by Association. Highline Medical Center shall not deny equal services, accommodations, or other opportunities to any individual because of the known relationship of that person with someone who is Deaf or Hard of Hearing. See 42 U.S.C. § 12182(b)(1)(E).
Retaliation and Coercion. Highline Medical Center shall not retaliate against or coerce in any way any person who made, or is making, a complaint according to the provisions of this Agreement or exercised, or is exercising, his or her rights under this Agreement or the ADA. See 42 U.S.C. § 12203.
Appropriate Auxiliary Aids and Services. Consistent with 42 U.S.C. § 12182(b)(2)(A)(iii), Highline Medical Center will provide to Patients and Companions who are Deaf or Hard of Hearing any appropriate Auxiliary Aids and Services that are necessary for effective communication after making the assessment described in paragraphs 22-23 of this Agreement. Appropriate Auxiliary Aids and Services will be provided as soon as practicable (without compromising patient care), except that the provision of on-site interpreters must be within the time frame described in paragraph 30 of this Agreement.
General Assessment Criteria. The determination of appropriate Auxiliary Aids and Services, and the timing, duration, and frequency with which they will be provided, will be made by Highline Medical Center in consultation with the person with a disability. The assessment made by Hospital Personnel will take into account all relevant facts and circumstances, including, for example, the individual's communication skills and knowledge, and the nature and complexity of the communication at issue. To guide this determination, Highline Medical Center will provide all Patients or Companions who are Deaf or Hard of Hearing with a notice of services and model communication assessment form similar to the Model Communication Assessment Form attached to this Agreement as Exhibit A. Highline Medical Center will ensure that it provides a document substantially similar to Exhibit A to all new patients at intake at either the regular admissions desk or the Emergency Department within thirty (30) days of the Effective Date of this Agreement.
Time for Assessment. The determination of which appropriate Auxiliary Aids and Services are necessary, and the timing, duration, and frequency with which they will be provided, must be made (a) at the time an appointment is scheduled for the Patient who is Deaf or Hard of Hearing or, (b) on the arrival of the Patient or Companion who is Deaf or Hard of Hearing at the Hospital, whichever is earlier. If someone other than the Patient schedules the appointment then (1) that person must be asked if the Patient is Deaf or Hard of Hearing and if so, then what Auxiliary Aids and Services are necessary when the Patient presents in person and (.2) an independent assessment will be performed when the Patient who is Deaf or Hard of Hearing presents for their appointment. Hospital Personnel will perform an assessment informed by the information collected as described in paragraph 22 as part of each initial inpatient assessment and document the results in the Patient's medical chart. It is not necessary to perform the assessment for each subsequent visit to Highline Medical Center or to require the Patient to request auxiliary aids and services for each subsequent visit to Highline Medical Center. In the event that the initial form of communication is not effective or circumstances change (See paragraph 28, below), Hospital Personnel will reassess which appropriate Auxiliary Aids and Services are necessary, in consultation with the person with a disability, where possible, and provide such aid or service based on the reassessment.
Assistive Device Point Persons. Highline Medical Center will designate an Assistive Device Point Person. This Assistive Device Point Person or his or her designee(s) will always be on duty and available to Highline Medical Center staff, Patients, and Companions twenty-four (24) hours a day, seven (7) days a week, to answer questions and provide appropriate assistance regarding immediate access to, and proper use of, the appropriate Auxiliary Aids and Services, including Qualified Interpreters.
Highline Medical Center will include in the Resource Book located in the House Supervisor's Office the name and telephone number through which the on-duty Assistive Device Point Person can be contacted twenty-four (24) hours a day seven days a week by Hospital Personnel providing services to individuals who are Deaf or Hard of Hearing.
The Assistive Device Point Person and his or her designees will be designated by Highline Medical Center no later than thirty (30) days following execution of this Agreement and notice of such designation will be provided to the United States Attorney's Office.
The type of the Auxiliary Aid or Service provided.
If the requested Auxiliary Aid or Service was not provided, was not provided in the type requested, or was provided outside of the timeliness provisions contained in paragraph 30 of this agreement, the log shall contain a statement explaining why. (For Patients who are inpatients in the hospital, in lieu of documenting each and every time a VRI is utilized, if a VRI is maintained in the patient's room, the log can provide that the VRI was in the patient's room, in good working order, and was utilized for interactions with the patient during that time, so long as any problems with using the VRI are documented in the log.) Such logs will be maintained by the Assistive Device Point Person for the entire duration of the Agreement, and will be incorporated into the semi-annual Compliance Reports as described in paragraph 44 of this Agreement. The Hospital will implement the Auxiliary Aid and Service Log no later than thirty (30) days following execution of this Agreement.
Highline Medical Center will maintain records of all grievances regarding effective communication, whether oral or written, made to Highline Medical Center and actions taken with respect thereto.
At the time Highline Medical Center completes its assessment described in paragraphs 22-23 and advises the Patient and/or Companion of its determination of which appropriate Auxiliary Aids and Services are necessary, Highline Medical Center will notify persons who are Deaf or Hard of Hearing of its grievance resolution mechanism, to whom complaints should be made, and of the right to receive a written response to the grievance.
Copies of all grievances related to provision of services for Patients and/or Companions who are Deaf or Hard of Hearing and the responses thereto will be maintained by the Assistive Device Point Person for the entire duration of this Agreement.
Prohibition of Surcharges. All appropriate Auxiliary Aids and Services required by this Agreement will be provided free of charge to Patients and Companions who are Deaf or Hard of Hearing.
In such circumstances, Highline Medical Center will presume that a qualified sign language interpreter or qualified oral interpreter is necessary for effective communication with a Patient or Companion who relies upon such auxiliary services or aids.
Chosen Method for Obtaining Interpreters. Within thirty (30) days after execution of this Agreement, Highline Medical Center will provide the name(s) of the interpreter services currently used by Highline Medical Center for securing qualified on-site interpreters as well as VRI services. If the names of the interpreter services used by Highline Medical Center changes during the term of this Agreement, Highline Medical Center shall notify the U.S. Attorney's Office of the change within thirty (30) days.
Non-scheduled Interpreter Requests: A "non-scheduled interpreter request" means a request for an interpreter made by a Patient or Companion who is Deaf or Hard of Hearing less than two (2) hours before the Patient's appearance at Highline Medical Center for examination or treatment. For non-scheduled interpreter requests, Hospital Personnel will complete the assessment described in paragraphs 22-23 above.
A Qualified Interpreter (via VRI) will be provided as soon as practicable, but no more than 30 minutes from the time Highline Medical Center completes the assessment (absent exigent circumstances affecting patient care which may extend the time for providing such service).
Scheduled Interpreter Requests. A "scheduled interpreter request" is a request for an interpreter made two (2) or more hours before the services of the interpreter are required. For scheduled interpreter requests, Highline Medical Center Personnel will complete the assessment described in paragraphs 22-23 above in advance, and, when a Qualified Interpreter is appropriate, Highline Medical Center will make a qualified interpreter available at the time of the scheduled appointment. If a Qualified Interpreter fails to arrive for the scheduled appointment, upon notice that the Qualified Interpreter failed to arrive, Highline Medical Center will immediately call the interpreter service for another Qualified Interpreter and comply with the timeframes set forth in paragraph 30(a).
Data Collection on Interpreter Response Time. Highline Medical Center will monitor and document in the Auxiliary Aid and Service Log, described in paragraph 25, the response time of each Qualified Interpreter service it uses to provide communication to Patients or Companions who are Deaf or Hard of Hearing through its established process of monitoring outside vendors. Highline Medical Center will document and investigate, per the grievance process identified in paragraph 26, any complaints by the Patients or Companions who are Deaf or Hard of Hearing regarding the quality and/or effectiveness of services provided by the interpreter service.
VRI shall not be used when it is not effective, for example, due to: (1) a patient's limited ability to move his or her head, hands or arms; vision or cognitive issues; or significant pain; (2) space limitations in the room; (3) the complexity of the medial issue; or (4) any other time when there are indicators that VRI is not providing effective communication. Whenever, based on the circumstances, VRI does not provide effective communication with a Patient or Companion who is Deaf or Hard of Hearing (after it has been provided or is not available), VRI shall not be used as a substitute for an on-site Qualified Interpreter, and an on-site Qualified Interpreter shall be requested by Highline personnel and provided. The on-site Qualified Interpreter shall be requested and provided in a timely manner as required by paragraph 30 of this Agreement; the two hours begins when it becomes evident that VRI cannot provide effective communication.
Notice to Patients and Companions Who are Deaf or Hard of Hearing. As soon as Highline Medical Center Hospital Personnel have determined that a Qualified Interpreter is necessary for effective communication with a Patient or Companion who is Deaf or Hard of Hearing, Highline Medical Center will inform the Patient or Companion (or a family member or friend, if the Patient or Companion is not available) of the current status of efforts being taken to secure a Qualified Interpreter on his or her behalf. Highline Medical Center will provide additional updates to the Patient or Companion as necessary until an interpreter is secured. Notification of efforts to secure a Qualified Interpreter does not lessen Highline Medical Center's obligation to provide Qualified Interpreters in a timely manner as required by paragraph 30 of this Agreement.
Other Means of Communication. Highline Medical Center agrees that between the time an interpreter is requested and the Qualified Interpreter is provided, Hospital Personnel will continue to try to communicate with the Patient or Companion who is Deaf or Hard of Hearing for such purposes and to the same extent as they would have communicated with the person but for the disability, using all available methods of communication, for example, using sign language pictographs. This provision in no way lessens Highline Medical Center's obligation to provide qualified interpreters in a timely manner as required by paragraph 30 of this Agreement.
Where the Patient or Companion who is Deaf or Hard of Hearing specifically requests that the adult friend or adult family member interpret, the accompanying adult agrees to provide such assistance, and reliance on that adult for such assistance is appropriate under the circumstances. Highline Medical Center shall provide a medically certified interpreter regardless of Patient or Companion consent to use an adult friend or adult family member in the circumstances set forth in paragraph 28.
Highline Medical Center will not rely on a minor child or Patient to interpret except in the limited circumstances described in (a) above.
Policy Statement. Within ninety (90) days of the entry of this Agreement, Highline Medical Center shall post and maintain signs of conspicuous size and print at all Highline Medical Center admitting stations and wherever a Patient's Bill of Rights is required by law to be posted, with substantially similar language to that provided in the Sample Posting attached as Exhibit B notifying the public of the availability of Auxiliary Aids and Services and their related rights. These signs will include the international symbol for "ASL interpreter."
Website. Within ninety (90) days of the entry of this Agreement, Highline Medical Center will include on its website the same or substantially similar policy statement, conspicuously linked from the main website, currently available at: https://www.chifranciscan.org/highline-medical-center.html.
Patient Handbook. Highline Medical Center will include in all future printings of its Patient Handbook (or equivalent) and all similar publications a statement to the following effect: To ensure effective communication with Patients and their Companions who are deaf or hard-of-hearing, we provide appropriate auxiliary aids and services free of charge, such as: sign language and oral interpreters, video remote interpreting services, TTYs, written materials, telephone handset amplifiers, assistive listening devices and systems, telephones compatible with hearing aids, televisions with caption capability or closed caption decoders, and open and closed captioning of most Hospital programs.
Highline Medical Center will also include in its Patient Handbook a description of its complaint resolution mechanism.
If you recognize or have any reason to believe that a Patient or a relative, close friend, or Companion of a Patient is deaf or hard-of-hearing, you must advise the person that appropriate auxiliary aids and services, such as sign language and oral interpreters, video remote interpreting services, TTYs, written materials, telephone handset amplifiers, assistive listening devices and systems, telephones compatible with hearing aids, televisions with captioning or closed caption decoders, and open and closed captioning of most hospital programs, will be provided free of charge when appropriate. If you are the responsible health care provider, you must ensure that such aids and services are provided when appropriate. All other personnel should direct that person to the appropriate ADA Administrator(s) at _____________ and reachable at ________________.
Notice to Personnel. Within ninety (90) days of the entry of this Agreement Highline Medical Center's policy for effective communication with persons who are Deaf or Hard of Hearing will be accessible to all Hospital Personnel and Active Members of the Hospital Medical Staff. The policy will also be provided to all newly hired Hospital Personnel and all Active Members of the Hospital Medical Staff upon their affiliation or employment with Highline Medical Center.
Highline Medical Center's complaint resolution procedure described in paragraph 26 of this Agreement.
Training of Hospital Personnel. Except for Active Members of the Hospital Medical Staff, who are governed by paragraph 43 of this Agreement, Highline Medical Center will provide mandatory in-service training to all Hospital Personnel who have contact with Patients.
Such training must be provided within ninety (90) days of the Effective Date of this Agreement, unless such training has been provided within the same calendar year of the Effective Date of this Settlement in accordance to Highline Medical Center's training schedule and annually thereafter.
Training Attendance Records. Highline Medical Center will maintain for the duration of this Agreement, confirmation of training conducted pursuant to paragraphs 40-41 of this Agreement, which will include the names and respective job titles of the attendees, as well as the date and time of the training session.
requests that if and when they become aware that a Patient or Companion who is Deaf or Hard of Hearing will be visiting Highline Medical Center for health care services, that they promptly notify the Assistive Device Point Person of the expected visit.
the information required in Auxiliary Aid and Service Log described in paragraph 25.
the information maintained in the complaint records described in paragraph 26, including the number of complaints received by Highline Medical Center from Patients and Companions who are Deaf or Hard of Hearing regarding Auxiliary Aids and Services and/or effective communication, and the resolution of such complaints including any supporting documents.
Highline Medical Center will maintain records to document the information contained in the Compliance Reports and will make them available, upon request, to the U.S. Attorney's Office.
Complaints. During the term of this Agreement, Highline Medical Center will notify the U.S. Attorney's Office if any person files a lawsuit, complaint, or formal charge with a state or federal agency, alleging that Highline Medical Center failed to provide Auxiliary Aids and Services to Patients or Companions who are Deaf or Hard of Hearing or otherwise failed to provide effective communication with such Patients or Companions. Such notification must be provided in writing via certified mail within twenty (20) days of the date Highline Medical Center received notice of the allegation and will include, at a minimum, the nature of the allegation, the name of the person making the allegation, and any documentation of the allegation provided by the complainant. Highline Medical Center will reference this provision of the Agreement in the notification to the U.S. Attorney's Office.
Within 30 days of the effective date of this Agreement, Highline Medical Center will pay a civil penalty to the United States in the amount of TEN THOUSAND DOLLARS ($10,000), pursuant to 42 U.S.C. § 12188(b)(2)(C) to vindicate the public interest.
Enforcement. In consideration of the terms of this Agreement as set forth above, the United States agrees to refrain from undertaking further investigation or from filing a civil suit under Title III in this matter, except as provided in paragraph 51. Nothing contained in this Agreement is intended or shall be construed as a waiver by the United States of any right to institute proceedings against Highline Medical Center for violations of any statutes, regulations, or rules administered by the United States or to prevent or limit the right of the United States to obtain relief under the ADA for violations unrelated to this matter.
Compliance Review and Enforcement. The United States may review compliance with this Agreement at any time and can enforce this Agreement if the United States believes that it or any requirement thereof has been violated by instituting a civil action in U.S. District Court. If the United States believes that this Agreement or any portion of it has been violated, it will raise its claim(s) in writing with Highline Medical Center, and the parties will attempt to resolve the concern(s) in good faith. The United States will allow Highline Medical Center thirty (30) days from the date it notifies Highline Medical Center of any breach of this Agreement to cure said breach, prior to instituting any court action to enforce the ADA or the terms of the Agreement.


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FRANK v. HAWAII PLANING MILL FOUNDATION HAWAII PLANING MILL FOUNDATION May 29, 1998 No. 20343.
MEDNICK v. DAVEY May 29, 1998 No. 20435.
CHILD SUPPORT ENFORCEMENT AGENCY v. MAZZONE May 26, 1998 No. 19915.
STATE v. HULIHEE May 22, 1998 No. 19869.
DESMOND v. ADMINISTRATIVE DIRECTOR OF THE COURTS STATE OF HAWAII May 22, 1998 No. 19966.
KURODA v. KURODA May 19, 1998 No. 18913.
KUTCHER v. ZIMMERMAN May 4, 1998 No. 19780.
BAYUDAN v. TRADEWIND INSURANCE COMPANY LTD May 1, 1998 No. 20487.

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