SETTLEMENT AGREEMENT

BETWEEN

THE UNITED STATES OF AMERICA

AND

EDUCATIONAL MANAGEMENT CORPORATION

UNDER TITLE III OF THE AMERICANS WITH DISABILITIES ACT,

DJ #202-57-97

 


 

A. DEFINITIONS AND BACKGROUND

  1. This matter is based upon a compliance review of physical accessibility for individuals with disabilities at Brown Mackie college campuses (which are owned and operated by Educational Management Corporation (“EDMC”)) under Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12181 - 12189 (the “ADA”), and the Department of Justice’s implementing regulation, 28 C.F.R. Part 36, including the ADA Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A (the “Standards”).
  2. Title III of the ADA requires, among other things, that public accommodations remove barriers to access from existing facilities where it is readily achievable to do so, and that any buildings or facilities be constructed or altered in such a manner that those buildings or facilities meet the requirements of Title III of the ADA, including the Standards. In addition, Title III of the ADA requires that no individual with a disability is discriminated against on the basis of a disability in the full and equal enjoyment of the services and facilities of a place of public accommodation. 42 U.S.C. §§ 12182 and 12183.
  3. The United States conducted a compliance review of EDMC’s Brown Mackie campuses and alleges that various aspects of the four Brown Mackie campuses that it surveyed listed in Attachment A (the “Surveyed Campuses”) were not in compliance with the ADA and the regulations, including the provisions referenced in paragraph 2 above.
  4. Examples of the alleged violations at the surveyed campuses include, but are not limited to: inaccessible doors (too narrow); inaccessible (round) door knobs; inadequate wheelchair maneuvering space at doors; inaccessible (high) door thresholds; room identification signs not accessible to people with vision impairments; narrow (less than 36” wide) routes within buildings; inadequate maneuvering space at library stacks; abrupt level changes along required routes; steep (greater than 8.3%) ramps and curb ramps; inaccessible cross slopes; inaccessible ramp and stair handrails; inaccessible toilet rooms; toilets not centered at 18” from the side wall; inadequate knee height at lavatory aprons; inadequate turning space in toilet rooms; drinking fountains with their spouts too high; lack of accessible visual fire alarms; and inadequate head clearance along circulation routes.
  5. The parties to this Settlement Agreement are the United States and EDMC, in its capacity as the owner of the Brown Mackie Colleges. EDMC leases all of the buildings in which the Brown Mackie Colleges are located. Some of the campuses consist of a single building and an adjacent parking lot, while at others, EDMC is a tenant in a multi-user building with other non-related tenants. EDMC cooperated fully with the Department’s investigation. EDMC makes no admission of liability regarding any failure to comply with the ADA or any other law but is committed to welcoming students and staff with disabilities to its campuses.

B. JURISDICTION

  1. EDMC, a private, proprietary corporation, headquartered in Pittsburgh, Pennsylvania, owns and/or operates places of education in several states, which are places of public accommodation covered by Title III of the ADA. 42 U.S.C. § 12181(7)(J).
  2. The ADA requires that the Department of Justice conduct periodic compliance reviews of public accommodations. 42 U.S.C. § 12188(b)(1)(A). The Department of Justice is also authorized to commence a civil action in a United States District Court if it 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, and to seek injunctive relief, monetary damages, and civil penalties. 42 U.S.C. §§ 12188(a)(2) and 12188(b). In consideration of the terms of this Agreement and EDMC’s promises contained in Section C of this Agreement, the Department of Justice agrees to refrain from undertaking further investigation into or from filing a civil suit in this matter, except as provided in Section D below.

C. REMEDIAL ACTION

  1. This Agreement covers the Brown Mackie Campuses, including the Surveyed Campuses as well as those owned by EDMC as of the date of this Agreement, and those where EDMC leases the property and where the lease will remain in effect after May 1, 2009 (the “Non-Surveyed Brown Mackie Campuses”). This Agreement contains specific requirements for the Surveyed Campuses (the details of which are set forth in Attachment A), and for the remaining Non-Surveyed Brown Mackie campuses. The parties agree that EDMC does not need to make any alterations or modifications at one of the Surveyed Campuses, the North Canton campus, because the lease on that property expired on June 12, 2007.
  2. The parties recognize that under the ADA “[b]oth the landlord who owns [a] building that houses a place of public accommodation and the tenant who owns or operates the place of public accommodation are public accommodations subject to the requirements of [Title III of the ADA]. As between the parties, allocation of responsibility for complying with the obligations of this part may be determined by lease or other contract.” 28 C.F.R. § 36.201(b).
  3. EDMC has the obligation, at all Brown Mackie campuses, to:
    1. Reasonably modify policies, practices, and procedures when necessary to afford access to services and facilities to individuals with disabilities unless such modifications would fundamentally alter the nature of the services and/or facilities, 42 U.S.C. §§ 12182 (a) and 12182 (b)(2)(A)(ii);
    2. Remove architectural barriers in existing facilities where such removal is readily achievable. 42 U.S.C. § 12182(b)(2)(A)(iv);
    3. Undertake alterations, including those required by this Agreement, in such a manner that they are readily accessible to and usable by persons with disabilities to the maximum extent feasible. 42 U.S.C. § 12183(a), 28 C.F.R. §§ 36.402; 36.405;
    4. Maintain in operable working condition those features of facilities and equipment that are required to be accessible by persons with disabilities according to the ADA, its implementing regulation, or this Agreement;
    5. Where barrier removal is not readily achievable, make its goods, services, facilities, privileges, advantages, or accommodations available through alternative methods if those methods are readily achievable. 28 C.F.R. § 36.305.

      The parties acknowledge that compliance with the Standards described herein, is subject to conventional building industry tolerances for field conditions, pursuant to § 3.2.

  4. By no later than May 30, 2008, EDMC shall:
    1. Designate an ADA Compliance Officer who shall have the authority and responsibility for ensuring that all aspects of its Brown Mackie campuses meet the terms of this Agreement and of the ADA. The position of Compliance Officer shall be filled and maintained for the duration of this Agreement.
    2. Hire an ADA Consultant (“Consultant”) with expertise in understanding the accessibility requirements of Title III of the ADA, including the Standards. EDMC has already selected a consultant after conferring with the United States.
  5. By no later than October 1, 2008, and with assistance from its ADA Consultant, EDMC shall evaluate the non-surveyed Brown Mackie campuses in order to develop a plan of access for each one. Specifically, EDMC shall identify all areas where it will make (or recommend that its landlords make) improvements to the accessibility of the facilities, services, and amenities of these campuses in a manner that meets or exceeds the criteria of paragraph 15 below, consistent with the requirements of the ADA. EDMC shall then promptly endeavor to make all necessary changes (to areas within its control and responsibility) so that its campuses meet the criteria of paragraph 15.1 All changes made will be consistent with the ADA and its implementing regulations, and subject to any exceptions permitted by law, as well as by paragraph 13 below with respect to landlord responsibilities.
  6. To the extent that EDMC’s plan of access will require physical changes to parts of facilities or spaces that EDMC – by virtue of the lease – does not have exclusive control over, or does not have responsibility for, EDMC will:
    1. By November 1, 2008, provide the landlord with a copy of this Agreement along with a detailed listing of any accessibility issue(s) that EDMC believes the landlord is responsible for rectifying, and request that such issues be rectified promptly, and by no later than May 1, 2009;
    2. By December 15, 2008, if necessary, have completed any necessary negotiations with the landlord in order to determine whether identified accessibility issues will be corrected by the landlord or will be corrected by EDMC;
    3. By January 15, 2009, if necessary, provide a written notice to the United States advising of:

      (i)Any instance where a landlord has refused to agree to rectify any identified accessibility issue(s). That notice should include all relevant information about the issue as well as the landlord’s contact information and the landlord’s stated position;

      (ii)A list of the reasons why EDMC was unable to rectify such issue itself.

  7. After receiving a written notice pursuant to subparagraph 13c of this Agreement, if the United States is of the view that EDMC is legally responsible for rectifying any accessibility issue that it has failed to rectify, the United States shall notify EDMC of its position, including the specific reasons for its position, pursuant to paragraph 22, and the parties shall attempt to negotiate a resolution. If the United States agrees that it is the landlord’s responsibility to rectify any identified accessibility issue(s), EDMC shall have no responsibility or liability for remedying the issue(s) in question.
  8. EDMC will take remedial actions within reasonable timetables to ensure that by no later than October 1, 2009 (to the extent it has control and responsibility as detailed in paragraph 13), all required modifications are made to ensure that all programs, services, and amenities at each of the Brown Mackie campuses are accessible to individuals with disabilities and that each facility has the following accessible features, meeting the technical provisions of the Standards (28 C.F.R. Part 36, App. A. §§ 4.3 - 4.35, and 5-9) where such features are provided:
    1. Accessible parking;
    2. Accessible approaches from adjacent parking areas, walkways, and public transportation drop-off points;
    3. An accessible entrance to the building, and into all rooms or spaces where such programs, services, or amenities are provided;
    4. An accessible water fountain (if water fountains are offered) on an accessible level, complying with § 4.1.3(10);
    5. At least one accessible men’s and women’s toilet room including a standard stall consistent with § 4.23.4, or a unisex accessible toilet room consistent with § 4.1.6(e) on an accessible level;
    6. Accessible public telephones (if public telephones are offered) on an accessible level;
    7. Signage with raised and Braille characters, as well as directional signage, as required by the appropriate ADA Standards;
    8. Accessible elevators, ramps, or lifts if any program, service, or amenity is only offered above or below the accessible first floor;
    9. Accessible seating in classrooms or auditoriums or other spaces that meets the appropriate ADA Standards; and
    10. Accessible routes from the accessible entrance to each accessible space.
  9. By May 1, 2009, for all Brown Mackie Campuses, EDMC shall have assistive listening devices (“ALD’s”) available for at least 2% of the total number of seats in each lecture hall, meeting room, and other assembly areas covered by section 4.1.3(19)(b) of the Standards, if they (1) accommodate at least 50 persons or have audio amplification systems and (2) have fixed seating. For other assembly areas, the College shall provide an assistive listening system or an adequate number of outlets or other necessary wiring for a portable assistive listening system in accordance with section 4.1.3(19)(b) of the Standards. The College shall have a procedure for ensuring that those who need ALD’s can obtain them at the time needed.
  10. By no later than October 1, 2008, EDMC shall establish and implement an emergency evacuation plan for individuals with disabilities at each of its Brown Mackie campuses. By that date EDMC will also share its emergency plans with the United States. The United States will provide its comments and suggested changes, if any, on the emergency plans within 45 days of receipt, and EDMC will implement any necessary changes within 30 days of receiving them from the United States.
  11. With respect to any building that it leases – for use as a Brown Mackie campus – with a lease date beginning on or after the effective date of this Agreement and up to and including its expiration, EDMC shall ensure that the facility has the accessible features specified in paragraph 15, or ensure that modifications to the buildings are made within six months of the lease date in order to ensure the accessibility of those features offered in the building are consistent with those specifications.

D. ENFORCEMENT AND REPORTING

  1. At any time during the effective dates of this Agreement, the United States reserves the right to inspect any of EDMC’s campuses, to request access to records, and to request documentation of compliance with this Agreement.
  2. By no later than November 1, 2009, EDMC shall provide the United States with a report, including digital photos, demonstrating that it has corrected all aspects of its newly constructed facilities (if any) that fail to comply with the ADA Standards.
  3. Between November 1, 2009 and December 1, 2009, the United States will select three Brown Mackie campuses be surveyed for compliance by EDMC. EDMC shall have its Consultant survey each of these three campuses, and by no later than February 15, 2010, EDMC shall provide the United States with a copy of that Consultant’s report (including digital photos) indicating whether those campuses are in compliance with this Agreement, and listing any non-compliant features. In addition, between November 1, 2009, and February 15, 2010, the United States may choose to inspect up to three additional Brown Mackie campuses to assess their compliance upon two weeks notice to counsel.
  4. If, based on the verification report provided by EDMC under paragraph 21, EDMC’s Consultant’s surveys or the United States’ own inspections under paragraph 21, or other information, the United States finds that EDMC has failed to comply with the Agreement, then the provisions of paragraph 23 shall apply.
  5. If the United States finds that EDMC has failed to comply with the Agreement, the United States agrees to notify EDMC in writing of the alleged noncompliance and attempt to seek a resolution of the matter with EDMC. If the parties are unable to reach a resolution within sixty days of the date of the United States’ written notification, the United States may seek enforcement of the terms of this Agreement in any appropriate United States District Court. Alternatively, should the parties be unable to reach a resolution within 60 days of the date of the United States’ written notification, the United States may bring an action to enforce compliance with the ADA and its implementing regulation.
  6. This Agreement constitutes the entire agreement between the parties relating to the Department’s Title III compliance review of Brown Mackie Colleges, and Department of Justice Matter #202-57-97, and no other statement, promise, or agreement, either written or oral, made by any party or agents or any party that is not contained in this written Agreement, including its attachments, shall be enforceable. This Agreement does not purport to remedy any other potential violations of the ADA or any other federal law. This Agreement does not affect EDMC’s continuing responsibility to comply with all aspects of the ADA. Failure by the United States to enforce this entire Agreement, or any provision thereof with regard to any deadline or any other provision herein, shall not be construed as a waiver of the United States’ right to enforce other deadlines and provisions of this Agreement.
  7. If any term of this Agreement is determined by any court to be unenforceable, the other terms of this Agreement shall nonetheless remain in full force and effect, provided, however, that if the severance of any such provision materially alters the rights or obligations of the parties, the Department of Justice and EDMC shall engage in good faith negotiations in order to adopt mutually agreeable amendments to this Agreement as may be necessary to restore the parties as closely as possible to the initially agreed upon relative rights and obligations.
  8. This Agreement shall be binding on EDMC, its agents, employees, and any successors or assigns. In the event that EDMC seeks to transfer or assign any facility owned by it as of the date of this Agreement, and the successor or assign intends on carrying on the same or similar use of the facility, as a condition of sale, EDMC shall obtain the written accession of the successor or assign to any obligations remaining under this Agreement for the remaining term of this Agreement.
  9. This Agreement is effective as of the date of the last signature below and for three years from that date.
___________________________
For : Educational Management
Corporation


____________________________
For the United States of America
  GRACE CHUNG BECKER
Acting Assistant Attorney General


___________________________
General Counsel
By:____________________________
JOHN L. WODATCH, Chief
L. IRENE BOWEN, Deputy Chief
PHILIP BREEN, Special Legal Counsel
ALYSE BASS, Senior Trial Attorney
Disability Rights Section
U.S. Department of Justice
Washington, DC 20035 - 6738
(202) 307-2227


Date_________________________ Date               7/23/ 2008              



1 Those accessible features shall meet the technical provisions of the Standards (28 C.F.R. Part 36, App. A. §§ 4.3 - 4.35, and 5-9) except in limited situations where EDMC has documented, and the United States has agreed, that it is not reasonable or feasible to comply with those technical provisions. In these instances, the United States will respond in writing to EDMC’s documentation within 45 days of receipt. If the United States fails to respond within 45 days of receipt, then the deadline for compliance with respect to any such limited situation will be tolled during the time that the United States is determining whether compliance with those technical provisions is reasonable or feasible.

 





October 09, 2008