Settlement Agreement | Department of Justice Press Releases
DEPARTMENT OF JUSTICE COMPLAINT 202-14-46
1. The parties to this Settlement Agreement (Agreement) are the United States of America and Smyrna Playschool, Inc. d/b/a Cumberland Child Care Center (Cumberland Child Care), Smyrna, Georgia.
2. This Agreement resolves a complaint filed with the Department of Justice (Department) under title III of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12181-89, and its implementing regulation, 28 C.F.R. pt. 36. Department of Justice Complaint Number DJ 202-14-46 was filed by Frances and Rungie McKinnon on behalf of Jerick D. McKinnon. The complaint was investigated by the Department under the authority granted by section 308(b) of the ADA, 42 U.S.C. § 12188.
3. Cumberland Child Care provides child day-care services at one location. Cumberland Child Care is a public accommodation, as defined in section 301(7)(e) of the ADA, 42 U.S.C. § 12182(7)(k), and its implementing regulation, 28 C.F.R. § 36.104.
4. Jerick McKinnon is a person with disabilities within the meaning of 42 U.S.C. § 12102(2) and 28 C.F.R. § 36.104.
5. Cumberland Child Care refused to treat Jerick McKinnon for asthma by administering an inhaler. Instead, Cumberland Child Care's policy states that it will not administer medicine to any children at the center.
(Note. Jerick McKinnon never had an asthma attack while he was at my nursery, if he had we would have administered first aid and called the E.M.C. so we never refused him medical aid. s/Virginia Mayield President 12-8-98)
6. To avoid unnecessary and costly litigation, the parties hereby agree to the provisions set forth in paragraphs 7 through 16, below.
7. Cumberland Child Care hereby agrees that the document entitled "Cumberland Child Care Non-Discrimination Policy," (Attachment A), "Cumberland Child Care Authorization for Administering Emergency Treatment to Children who require it" (Attachment B), and "Release" (Attachment C), attached hereto, have been adopted by Cumberland Child Care as its policy for treating children with severe allergies. Cumberland Child Care further agrees not to modify the policy without the prior written consent of the Department. Cumberland Child Care will provide copies of the policy to all staff and to the parents of all children attending Cumberland Child Care Center.
8. Cumberland Child Care hereby agrees to pay a total of $1,500 in full and final settlement of the complaint set forth in paragraph 2, above. This sum will be paid to Jerick McKinnon whose rights under the complaint are resolved by this Agreement and who shall execute a Release in the form attached hereto as Attachment D prior to the payment of any sums to that party by Cumberland Child Care. Within fifteen (15) days of Cumberland Child Care's receipt of such fully executed Release, Cumberland Child Care shall mail a certified check to Jerick McKinnon by certified U.S. mail.
9. The Attorney General is authorized, pursuant to 42 U.S.C. § 12188(b)(1)(B), to bring a civil action to enforce title III of the ADA in any situation where the Attorney General finds a pattern or practice of discrimination or an issue of general public importance. In consideration of the terms of this Agreement, the Attorney General agrees to refrain from filing a civil suit under title III in this matter.
10. The Department may review compliance with this Agreement at any time. If the Department believes that this Agreement or any portion of it has been violated, it may institute a civil action in federal district court.
11. A failure by the Department to enforce any term of this Agreement shall not be construed as a waiver of its right to enforce any other portion of this Agreement.
12. This Agreement shall be enforceable in United States District Court.
13. This Agreement is a public document. Copies of this Agreement, the Attachments, and any information contained in them may be made available to any person at any time.
14. The effective date of this Agreement is the date of the last signature below. This Agreement shall be binding on Cumberland Child Care and its successors and assigns. Cumberland Child Care shall have a duty to notify all such successors and assigns. The term of this Agreement is two years from the effective date.
15. This document constitutes the entire Agreement between the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or the agents of either party that is not contained in this written Agreement, shall be enforceable. This Agreement is limited to the matters raised in the Complaint and does not address any other issues of ADA compliance by Cumberland Child Care. This Agreement does not affect the continuing responsibility of Cumberland Child Care to comply with all aspects of the ADA.
16. The signers of this document affirm that they are authorized to bind the parties that each represents to this Agreement.
Bill Lann Lee
Acting Assistant Attorney General for Civil Rights
Lucille K. Johansen, Investigator
Eve Hill, Esq., Supervisory Attorney
L. Irene Bowen, Esq., Deputy Chief
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 66738
Washington, DC 20035-6738
Virginia L. Mayfield,
Cumberland Child Care
2550 Spring Road, S.E.
Smyrna, Georgia 30080
CUMBERLAND CHILD CARE CENTER
Cumberland Child Care Center will not deny admission to, terminate enrollment of, or otherwise discriminate against any child because of that child's disability.
In addition, Cumberland Child Care Center will administer emergency care to any child who has asthma and needs to be treated with an inhaler in accordance with the instructions provided by the child's parent(s)/guardian(s) and doctor. (See Attachments B and C.)
Cumberland Child Care Center will review this policy yearly in order to assure that it meets the requirements of the Americans With Disabilities Act of 1990, 42 U.S.C. §§ 12181-89 and its implementing regulation, 28 C.F.R. pt. 36.
Virginia L. Mayfield, Owner
AUTHORIZATION FOR EMERGENCY CARE
OF CHILDREN WITH SEVERE ALLERGIES
Dear Doctor: ___________________________ Date: ___________________________
Your patient, ___________________________ is enrolled/enrolling in our child care center and we have been requested to provide certain emergency care for asthma. Please complete Part I of this instruction record. This record will remain in the child's file at Cumberland Child Care center so we may assist with the allergy care and needs of our enrollee and your patient. If you need to provide further instructions or clarifications, please do so on a separate sheet of paper, which will become a part of this record and will be kept with this form in the child's file at ___________________________.
(to be completed by physician)
Child's Name: ___________________________ Child's Birth Date: ___________________________
Please provide a complete list of all events and/or substances that may trigger an asthma attack in the child.
____ Bee Sting
____ Other insect Bite(s): (identify): ________________________________________
____ Animal Fur: (identify) _______________________________________________
____ Food Allergy: (identify all foods that must be avoided): ____________________
____ Other: (identify) ___________________________________________________
Please provide a complete list of all symptoms that indicate that the child is having an asthma attack and that he or she requires emergency treatment.
____ Shortness of Breath or Difficulty in Breathing
____ Other: (explain): ___________________________________________________
Please indicate all steps necessary and the order in which they should be taken.
____ Give inhaler.
____ Call the area's emergency medical personnel (e.g."911").
____ Call parent(s)/guardian(s), and child's physician.
1. The child may participate in recreational activities. [ ] Yes [ ] No
2. Activity restrictions: [ ] None [ ] Some Restrictions
Telephone No.: ____________________________________________
Emergency Contact No.: _____________________________________
Signature: ________________________________________ Date: ________________________
(to be completed by Parent(s)/Guardian(s)
Telephone No.: _____________________________________________
Emergency Contact No.: ______________________________________
Telephone No.: ______________________________________________
Emergency Contact No.: _______________________________________
By signing this form, I\We authorize Cumberland Child Care center to follow the above instructions in the Authorization form. I/We agree to update this form every six (6) months, or sooner if my/our child's needs change.
Signature: _______________________________________ Date: _________________________
CUMBERLAND CHILD CARE
THIS IS A RELEASE AND WAIVER OF LIABILITY FOR ADMINISTERING AN ASTHMA INHALER TO CHILDREN WITH ASTHMA (Release) between Smyrna Playschool, Inc. d/b/a Cumberland Child Care and __________________________________ (parent(s)/guardian(s) name) who are the Parent(s)/Guardian(s) of _____________________________; (child's name). _____________________________(parent(s)/guardian(s) name) have requested Cumberland Child Care provide emergency treatment for their child at Cumberland Child Care Center and take certain actions described in the child's "Authorization for Care of Children with Asthma" (Authorization), which is attached to this Release and is hereby incorporated by reference.
The parties agree that:
1. ______________________ (parent(s)/guardian(s) name)releases Cumberland Child Care and its officers, employees or agents from all liability which may arise as a result of Cumberland Child Care administering asthma treatment or following the directions in the Authorization (including any additional physician's instructions or clarifications) as long as such employees or agents exercise reasonable care in taking such actions.___________________(parent(s)/guardian(s) name) also releases Cumberland Child Care and its officers, employees or agents from all liability arising out of the use of any materials and/or equipment supplied by the parent(s)/guardian(s) in connection with the asthma treatment as long as such employees or agents exercise reasonable care in the use of such materials or equipment.
2. This Release shall be governed by the laws of the State of Georgia, where Cumberland Child Care is located.
3. This Release replaces all other agreements except the Authorization and, along with the Authorization, is the entire agreement between the parties on asthma treatment of _________________ (child's name) while under the care of Cumberland Child Care.
SMYRNA PLAYSCHOOL, INC. d/b/a CUMBERLAND CHILD CARE.
PARENT(S) OR GUARDIAN(S)
RELEASE PURSUANT TO
SETTLEMENT AGREEMENT UNDER THE AMERICANS WITH DISABILITIES
ACT OF 1990 BETWEEN THE UNITED STATES OF AMERICA AND
CUMBERLAND CHILD CARE
For and in consideration of receipt of a certified check made payable to me in the amount of $ _______ from Smyrna Playschool, Inc. d/b/a Cumberland Childcare and Virginia L. Mayfield pursuant to the provisions of the Settlement Agreement entered into by the United States of America and Virginia L. Mayfield, owner, Cumberland Child Care, DJ 202-19-46, on , I, Jerick McKinnon, hereby release and forever discharge Virginia L. Mayfield and Smyrna Playschoool, Inc. d/b/a Cumberland Child Care of and from all legal and equitable claims arising out of complaint #DJ 202-19-46 under the Americans with Disabilities Act.
I understand that the relief granted to me in consideration for this Release does not constitute an admission by the party released of the validity of any claim raised by me or on my behalf.
This Release constitutes the entire settlement agreement between the Virginia L. Mayfield Smyrna Playschool, Inc. d/b/a Cumberland Childcare and myself, without exception or exclusion.
I acknowledge that a copy of the Settlement Agreement in this action has been made available to me.
I HAVE READ THIS RELEASE AND I UNDERSTAND THE CONTENTS THEREOF AND I EXECUTE THIS RELEASE OF MY OWN FREE ACT AND DEED.
Signed this _____day of ______________ , 1998.
Jerick D. McKinnon by
Rungie McKinnon and Frances McKinnon, parents
February 6, 2001