I. BACKGROUND AND PARTIES
A. The parties to this Settlement Agreement (“Agreement”) are the United States of America and The Children’s House, Inc., located in Broadview Heights, Ohio.
B. The United States represents that this matter was initiated by a complaint filed with the United States Department of Justice (the “United States”) against The Children’s House, Inc., DJ Number 202-57-130, alleging violations of title III of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. 12181-12189, and its implementing regulation, 28 C.F.R. Part 36.
C. The United States is authorized to investigate alleged violations of title III of the ADA, and to bring a civil action in federal court if the Department is unable to secure voluntary compliance in any case that involves a pattern or practice of discrimination or that raises issues of general public importance, 42 U.S.C. § 12188(b). The Children’s House, Inc., is a place of public accommodation covered by title III of the ADA. 42 U.S.C. § 12181(7)(H)-(L); 28 C.F.R. § 36.104.
D. The ADA prohibits public accommodations from discriminating against an individual on the basis of disability in the full and equal enjoyment of its goods and services. 42 U.S.C. § 12182(a). Ensuring that day care centers do not discriminate against persons with asthma is an issue of general public importance.
E. The United States represents that the parent of a child with asthma was discriminated against on the basis of his disability because The Children’s House, Inc., refused to make a reasonable modification to its medication policy in order to accommodate the child with a disability in need of asthma medication.
F. The Children’s House, Inc., denies the allegation and alleges that it would have provided a partial modification to its medication administration policy. The Children’s House, Inc., contends that there was a disagreement with the child’s parent regarding the administration times required for the medication. To demonstrate that The Children’s House, Inc., is committed to full compliance with the ADA, The Children’s House, Inc., has established and implemented policies and procedures, set forth below, that are designed to afford children with disabilities a benefit equal to that provided to others, and to make reasonable modifications in policies, practices, and procedures when necessary to provide appropriate medication administration to children with disabilities in order to ensure their participation in the child care center.
G. In consideration of the terms of this Settlement Agreement, the Attorney General of the United States agrees to refrain from undertaking further action in this case, except as provided in Section III(D).
II. TERMS OF AGREEMENT
A. The Children’s House, Inc., agrees not to discriminate against any child on the basis of a disability. The Children’s House, Inc., agrees to provide all children with disabilities with an equal opportunity to attend The Children’s House, Inc., and to participate in all programs, services, or activities provided by The Children’s House, Inc.
B. This Agreement resolves a complaint about administration of asthma medication and the general policies of The Children’s House, Inc. Pursuant to the terms of this Agreement, The Children’s House, Inc., will not refuse to admit any child at any of its sessions or programs because the child has a disability that requires the administration of asthma medication unless The Children’s House, Inc., concludes that the child poses a “direct threat” as defined by 28 C.F.R. § 36.208, and/or the child’s participation would result in a “fundamental alteration” of the program, service or activity as defined by 28 C.F.R. § 36.302.
C. The Children’s House, Inc., agrees to evaluate, on a case by case basis, the individual needs of children with disabilities wishing to attend The Children’s House, Inc., and to make reasonable modifications to its policies in order to accommodate children with disabilities.
D. The Children’s House, Inc., has adopted the policy, entitled “The Children’s House, Inc., Policy on Asthma Medication” (“Policy”), which is attached hereto as Appendix A and is incorporated herein by reference. The Children’s House, Inc., will print and maintain copies of the Policy in a central location, provide the policy to any interested party requesting it, and will incorporate the policy into its standard operating policies in accordance with applicable state and local law and the ADA.
E. When informed that a child with asthma has applied to The Children’s House, Inc., it will:
1. Advise the child’s parents, guardians, or caretakers of the Policy on Asthma Medication Administration (attached hereto as Addendum A), and advise that The Children’s House Inc., will comply with all applicable federal, state, and local laws;
2. Unless circumstances permit otherwise, no less than two weeks prior to the first day of enrollment, require that the child’s parents shall provide The Children’s House, Inc., with the following (to the extent that The Children’s House, Inc., would like any additional information or documentation, it shall provide the United States with advanced written notice of such request):
a. Completed Asthma Management Plan, an example of which is attached as Addendum B, clearly detailing any and all necessary care for the child’s medical management and signed by the child’s primary care physician;
b. Information regarding all asthma medication and medical supplies provided by the child’s parents/guardians before the first day that are necessary to meet or comply with the child’s Asthma Management Plan.
F. The Children’s House, Inc., will provide ADA training to its staff at The Children’s House, Inc., within sixty (60) days of the effective date of this Agreement.
G. Retaliation and Coercion. The Children’s House, Inc., will not retaliate against or coerce in any way any person who is trying to exercise his or her rights under this Agreement or the ADA.
III. ENFORCEMENT AND IMPLEMENTATION
A. Compliance Reports. The Children’s House, Inc., will provide written reports to the United States regarding compliance with this Agreement. The first, second, and third reports shall be due six (6), twelve (12) and thirty six (36) months, respectively, from the entry of the Agreement. Each of the three reports must state the number of applicants with asthma who applied to enroll in the child care program, the procedure followed to determine whether to admit such applicant to the program, any reason admission to the program was denied, and if an applicant with asthma who required medication was admitted, what medication administration schedule was agreed upon. The Children’s House, Inc., will maintain records to document all statements in the report. The Children’s House, Inc., shall also submit detailed information about any complaints to The Children’s House, Inc., by children with asthma or their parents or guardians, or actions taken by The Children’s House, Inc., that involve any child who has asthma, including any decision to deny a child’s request for an accommodation after admission to The Children’s House, Inc., or any request or other action by The Children’s House, Inc., that contributes to a child’s removal or departure before the end of a session for which the child was enrolled.
B. Complaints. During the term of this Agreement, The Children’s House, Inc., shall notify the United States if any individual brings any lawsuit, complaint, charge, or grievance alleging that The Children’s House, Inc., discriminated against them on the basis of a disability. Such notification must be provided in writing within fifteen (15) days notice to the Children’s House, Inc., of the allegation and will include, at a minimum, the nature of the allegation, the name of the individual bringing the allegation, and any documentation possessed by The Children’s House, Inc., relevant to the allegation.
C. Notices. All notices, reports, or other such documents required by this Agreement shall be sent to the Parties by Federal Express or other similar service to the following addresses or to such other person as the parties may designate in writing in the future:
For notices to the United States:
John L. Wodatch, Chief
Attention: Janine Freeman, Trial Attorney
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
1425 New York Avenue, NW
Washington, D.C. 20005
(202) 305-8710 (telephone)
(202) 307-1197 (facsimile)
For notices to The Children’s House, Inc.:
J. Kelly Kosmider, Director
4223 E. Royalton Road
Broadview Heights, Ohio 44147
(440) 526-1622 (phone)
(440) 526-5123 (facsimile)
D. Enforcement of Agreement. The United States may review compliance with this Agreement at any time and may enforce this Agreement if the United States believes that any requirement therein has been violated. If the United States believes that this Agreement or any portion of it has been violated, it will specifically notify J. Kelly Kosmider, Director in writing and it will attempt to resolve the issue or issues in good faith. The Children’s House, Inc., shall have thirty (30) days from the date of notice from the United States of any breach of this Agreement to cure that breach, prior to instituting any court action. If the United States is unable to reach a satisfactory resolution of the issue or issues raised within 30 days of the date it provides notice to The Children’s House, Inc., it may institute a civil action in federal district court to enforce the terms of this Agreement or title III and may, in such action, seek any relief available under the law. Failure by the United States to enforce any provision or deadline of this Agreement will not be construed as a waiver of its right to enforce other provisions or deadlines of this Agreement.
E. Term of the Agreement. The Agreement shall become effective as of the date of the last signature below and shall remain in effect for three years from that date.
F. Entire Agreement. This Agreement, and any appendices attached, constitute the entire agreement between the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by any of the parties or agents of any of the parties, that is not contained in this written Agreement or attachments, shall be enforceable regarding the matters raised herein.
G. Copies Available. A copy of this Agreement may be made available by the United States or The Children's House, Inc., to any person and will be provided by the United States in hard copy upon request.
H. Resolution. This Agreement fully and finally resolves any and all of the allegations of the complainants and/or the United States in this case. It does not purport to remedy other potential violations of the ADA by The Children’s House, Inc.
I. Binding Effect. This Agreement shall be binding on The Children’s House, Inc., its agents and employees. In the event The Children’s House, Inc., seeks to transfer or assign all or part of its interest in any facility covered by this Agreement, and the successor or assign intends on carrying on the same or similar use of the facility, as a condition of sale The Children’s House, Inc., shall obtain the written accession of the successor or assign to any obligations remaining under this Agreement for the remaining term of this
J. Non-waiver. Failure by the United States to seek enforcement of this Agreement pursuant to its terms with respect to any instance or provision will not be construed as a waiver to such enforcement with regard to other instances or provisions.
K. Signatory. A signatory to this document in a representative capacity for The Children’s House, Inc., represents that he or she is authorized to bind that party to this Agreement.
For The Children’s House, Inc.:
|For the United States of America:
THOMAS E. PEREZ
Assistant Attorney General
JOHN L. WODATCH, Chief
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March 15, 2010