SETTLEMENT AGREEMENT BETWEEN

THE UNITED STATES OF AMERICA

AND

TODDLERS ‘N TOTS, INC.

UNDER THE AMERICANS WITH DISABILITIES ACT

DJ # 202-48-230

 

I.  BACKGROUND AND PARTIES

A. The Parties to this Settlement Agreement (“Agreement”) are the United States of America ("United States") and Toddlers ‘N Tots, Inc. (“Toddlers ‘N Tots”).

B. This matter was initiated by a complaint filed by Scott and Jean Samoyan, under title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181, et seq., with the United States Department of Justice against Toddlers ‘N Tots, Inc.

C. In the complaint, Complainant Jean Samoyan (“Complainant”) alleges that in February 2011, she attempted to enroll her then three-year-old son with epilepsy (“Student”) in Toddlers ‘N Tots’ daycare program.  The Complainant further alleges that Toddlers ‘N Tots denied the Student admission when it learned he would need to have a prescription anti-seizure emergency medication, diazepam rectal gel (Diastat), administered in the event of a prolonged or an acute repetitive seizure.  The Complainant alleges that Toddlers ‘N Tots failed to make reasonable modifications to its policies, practices, or procedures as necessary to afford the Student the opportunity to participate in Toddlers ‘N Tots’ programs.

D.    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 United States 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).

E. After a careful review of the information and documents obtained during the investigation, the United States has determined that Toddlers ‘N Tots violated title III of the ADA and the Department of Justice’s title III regulation. 42 U.S.C. §§ 12181-12189; 28 C.F.R. pt. 36.  As explained below, Toddlers ‘N Tots discriminated against the Samoyans and their son by denying him the opportunity to participate in and benefit from Toddlers ‘N Tots’ goods, services, facilities, privileges, advantages, or accommodations by subjecting him to discrimination on the basis of disability.  The United States' factual findings are stated below.

II. FINDINGS OF FACT

A. In November 2010, the Student was diagnosed with epilepsy. The Student requires Diastat, a prescription anti-seizure emergency medication, to be administered in the event of a prolonged or an acute repetitive seizure, often called a breakthrough seizure.  Diastat is a gel form of diazepam that is administered rectally to abruptly stop a breakthrough seizure.  It is meant to be administered three to five minutes after a seizure begins and is designed to break or abort the seizure.  Diastat was specifically designed to be administered by a layperson.  Diastat is manufactured in a pre-filled plastic syringe with a special plastic tip.  A pharmacist or doctor fills the syringe and then locks it, thereby guaranteeing the correct dosage is administered.  This form of administration allows the medication to act quickly and safely.  If Diastat is administered within the first 15 minutes after a seizure begins, it will stop the seizure 80 percent of the time.  The most common side effect is sleepiness.

B. In February 2011, the Complainant contacted Toddlers ‘N Tots by telephone to inquire about enrolling her son in its daycare program.  During that telephone call, the Complainant informed Toddlers ‘N Tots that her son has epilepsy. A meeting was scheduled with the Complainant and Patricia Zeck, the Owner/Director of Toddlers ‘N Tots (“Director”), to begin the enrollment process.  Shortly before the meeting was to take place, the Complainant informed Toddlers 'N Tots that her son's epilepsy may require the need for administration of Diastat. 

C. On February 17, 2011, the Complainant and the Student arrived at Toddlers ‘N Tots for the scheduled meeting.  Prior to entering the Toddlers ‘N Tots’ facility, the Complainant received a telephone call from the Director stating that Toddlers ‘N Tots could not accommodate the Student’s need for emergency Diastat administration.  For this reason, Toddlers ‘N Tots denied the Student enrollment in its program.

D. In response to the United States’ investigation, Toddlers ‘N Tots denied that it discriminated against the Student on the basis of disability.  Toddlers ‘N Tots alleges that the requested modification (emergency Diastat administration) would have resulted in a fundamental alteration to the nature of its program by requiring its staff to make medical determinations about when and how to administer Diastat.  Toddlers ‘N Tots further alleges that its staff were not willing to administer the medication for fear of harming the Student.  Toddlers ‘N Tots also alleges that it was not required to accommodate an individual who poses a direct threat.

E. Toddlers ‘N Tots did not show that administering Diastat pursuant to physician orders and staff training, a medication that is designed to be and routinely is administered by laypersons, would result in a fundamental alteration of the nature of Toddlers ‘N Tots’ child care program.  Toddlers ‘N Tots’ has also failed to show how the Student is a direct threat because the Student’s disability does not pose “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services.”  See 42 U.S.C. § 12182(b)(3); 28 C.F.R. § 36.208.  An “individual with a disability” is a person who has a physical or mental impairment that substantially limits a “major life activity.”  42 U.S.C. § 12102(1); 28 C.F.R. § 36.104.  An episodic impairment is a disability if it substantially limits a major life activity when active.  The Student, who has epilepsy, is an individual with a disability because he is substantially limited in his major life activities relating to neurological functioning when his epilepsy is active.

F.    The Toddlers ‘N Tots facility is a place of public accommodation covered by title III of the ADA because it is a daycare center.  See 42 U.S.C. § 12181(7)(K); 28 C.F.R. § 36.104.  Accordingly, Toddlers ‘N Tots is a public accommodation subject to the requirements of the Act because it owns, operates, leases, or leases to a place of public accommodation.  See 42 U.S.C. § 12182(a); 28 C.F.R. § 36.104.

G.    Title III of 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); 28 C.F.R. § 36.201.  Title III prohibits public accommodations from failing or refusing to make reasonable modifications in policies, practices, and procedures necessary to afford an individual with a disability the goods and services of the public accommodation, unless the public accommodation can demonstrate that making the modifications would fundamentally alter the nature of the services.  42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302.  Title III also prohibits public accommodations from discriminating against an individual because of the known disability of an individual with whom the individual is known to have a relationship or association.  42 U.S.C. § 12182(b)(E); 28 C.F.R. § 36.205. Ensuring that private day care centers do not discriminate against persons with epilepsy and those associated with them is an issue of general public importance.  42 U.S.C. § 12188(b)(1)(B).

H.    Toddlers ‘N Tots’ participation in this Settlement Agreement shall not constitute or be construed as an admission of liability.

I.    In consideration of the terms of this Settlement Agreement, the Attorney General agrees to refrain from undertaking further action in this case, except as provided in Section V(A).

J.    The parties agree to resolve this matter as set forth below.

III.    REMEDIAL ACTION

A. Consistent with the ADA, Toddlers ‘N Tots will not discriminate against any individual on the basis of disability in the full and equal enjoyment of its goods, services, privileges, advantages, or accommodations by refusing or failing to making reasonable modifications to policies, practices, or procedures where necessary to afford such goods, services, privileges, advantages, or accommodations to an individual with a disability.

B. Toddlers ‘N Tots will adopt, maintain, and enforce the non-discrimination statement attached hereto, and incorporated by reference herein as Exhibit 1 to this Agreement, regarding the prohibition of discrimination on the basis of disability.  Within ten (10) days of the effective date of this Agreement, Toddlers ‘N Tots will post a copy of this non-discrimination statement in a conspicuous area of the daycare center where members of the public can readily read the policy.   

C. Toddlers ‘N Tots will adopt, maintain, and enforce the Emergency Anti-Seizure Medication Administration Policy and Procedure (“EASMA Policy and Procedure”) attached hereto, and incorporated by reference herein as Exhibit 2 to this Agreement.

D. When informed that one of its students has been diagnosed with epilepsy or a child with epilepsy has applied for enrollment to Toddlers ‘N Tots or its programs, Toddlers ‘N Tots will advise the child’s parents or guardians of the EASMA Policy and Procedure and that it will comply with all applicable federal, state, and local laws.

E. Toddlers ‘N Tots will print and maintain copies of the EASMA Policy and Procedure in a central location, will provide the EASMA Policy and Procedure to any interested party requesting it or a modification of policies, practices, or procedures, and will incorporate the EASMA Policy and Procedure into its standard operating policies and handbooks in accordance with applicable state and local law.

F. In accordance with its existing policies and procedures, Toddlers ‘N Tots may require the child’s parents or guardians to provide Toddlers ‘N Tots with a completed Medical Authorization Form.  In addition, as part of its EASMA Policy and Procedure, Toddlers ‘N Tots will develop and adopt (1) a Seizure Emergency Action Plan and (2) a Physician’s Order for the Administration of Diazepam Rectal Gel (Diastat) (Attachments 1 and 2 to Exhibit 2).  Such forms are intended to ensure that Toddlers ‘N Tots has individualized information and instructions relating to the management of each child’s seizure disorder.  Toddlers ‘N Tots may require the child’s parents or guardians to provide Toddlers ‘N Tots with a completed Seizure Emergency Action Plan and Physician’s Order signed by the child’s parents or guardians and the child’s primary care physician or treating neurologist, as applicable. 

G. Toddlers ‘N Tots will arrange to provide annual training on epilepsy seizure and the administration of diazepam rectal gel (Diastat) to Toddlers ‘N Tots personnel who may be responsible for children with epilepsy at Toddlers ‘N Tots.  The basic training shall include the following:  (1) a general overview of epilepsy; (2) a basic understanding of seizures and the different types and characteristics of each; (3) how to manage seizures during the school day based upon a child’s Seizure Emergency Action Plan and Physician’s Order; (4) proper storage of diazepam rectal gel (Diastat) medication pursuant to Toddlers ‘N Tots’ policies and procedures; (5) how to appropriately administer diazepam rectal gel (Diastat); and (6) steps to follow after the administration of diazepam rectal gel (Diastat).

H. The parents or guardians of any child with epilepsy are responsible for providing, at their cost, all necessary equipment and supplies for the administration of diazepam rectal gel (Diastat).

IV.  MONETARY RELIEF FOR COMPLAINANTS

A. The ADA authorizes the Attorney General to seek compensatory damages on behalf of individuals aggrieved as the result of violations of the ADA.  42 U.S.C. § 12188(b)(2)(B); 28 C.F.R. § 36.504(a)(2).  Toddlers ‘N Tots agrees to pay Scott and Jean Samoyan three thousand dollars ($3,000.00) in damages, payable in three installments of $1,000.00, to be paid every two months ("Settlement Payment") .  Within thirty (30) days of the effective date of this Agreement, Toddlers ‘N Tots will send a copy of this Agreement and Exhibits 3 and 4, hereto attached, to Mr. and Mrs. Samoyan by certified mail, return receipt requested, or by overnight delivery.  Mr. and Mrs. Samoyan must return an executed "Release of All Claims," Exhibit 4, to Toddlers ‘N Tots within thirty (30) days of receipt of said documents.  Toddlers ‘N Tots will send the undersigned counsel for the United States a copy of Exhibits 3 and 4 when they are sent to Mr. and Mrs. Samoyan.

B. If Mr. and Mrs. Samoyan accept Toddlers ‘N Tots’ offer of relief as set out in Exhibits 3 and 4, it will, within thirty (30) days of receipt of the signed “Release of All Claims,” send Mr. and Mrs. Samoyan, by certified mail, return receipt requested, or by overnight delivery, a check for one thousand dollars as the first installment of the Settlement Payment.  Toddlers 'N Tots will send the second installment of the Settlement Payment (one thousand dollars) two months later, and the third installment of the Settlement Payment (one thousand dollars) four months later.  Toddlers ‘N Tots will provide to the United States a copy of the checks and transmittal letters sent to Mr. and Mrs. Samoyan.

V.  ENFORCEMENT

A. The United States may review compliance with this Agreement at any time.  If the United States believes that Toddlers ‘N Tots has failed to comply in a timely manner with any requirement of this Agreement without obtaining sufficient advance written agreement with the United States for a modification of the relevant terms, the United States will so notify Toddlers ‘N Tots in writing and it will attempt to resolve the issue or issues in good faith.  If the United States is unable to reach a satisfactory resolution of the issue or issues raised within thirty (30) days of the date it provides notice to Toddlers ‘N Tots, it may institute a civil action in the United States District Court for the District of New Jersey to enforce the terms of this Agreement or the requirements of title III of the ADA.

B. Failure by the United States to enforce this Agreement with regard to any deadline or any other provision herein will not be construed as a waiver of the United States’ right to enforce other deadlines and provisions of this Agreement.

C. A copy of this document or any information contained in it will be made available to any person on request from Toddlers ‘N Tots or the United States.

D. This Agreement 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 agents of either party, that is not contained in this written Agreement (including its Attachments, which are hereby incorporated by reference), will 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 Toddlers ‘N Tots’ continuing responsibility to comply with all aspects of the ADA.

E. This Agreement shall be binding on Toddlers ‘N Tots, its agents, and employees.  In the event Toddlers ‘N Tots seeks to transfer or assign all or part of its interest in the day care center, and the successor or assign intends on carrying on the same or similar use of the facility, as a condition of sale, Toddlers ‘N Tots shall obtain the written agreement of the successor or assign to comply with any obligations remaining under this Agreement for the remaining term of this Agreement.

F. This Agreement will remain in effect for three (3) years.

G. The effective date of this Agreement is the date of the last signature below.  A signatory to this document in a representative capacity for Toddlers ‘N Tots represents that he or she is authorized to bind that party to this Agreement.

 

FOR TODDLERS ‘N TOTS, INC.:

BY:/s/ Patricia Zeck
PATRICIA ZECK
OWNER/DIRECTOR

Dated: 9/21/12

FOR THE UNITED STATES OF AMERICA:

PAUL J. FISHMAN
UNITED STATES ATTORNEY

 

BY: /s/ Ronald Zeck
RONALD ZECK
OWNER

Dated:9/21/12

BY: /s/ Elizabeth A. Pascal
ELIZABETH A. PASCAL
Assistant U.S. Attorney

Dated: 8/16/12

Content for class "clearcol"

Exhibit 1

NON-DISCRIMINATION STATEMENT
PROHIBITION OF DISCRIMINATION ON THE BASIS OF DISABILITY

Toddlers ‘N Tots, Inc. will not discriminate against any individual with a disability on the basis of disability with regard to the full and equal enjoyment of the services at Toddlers ‘N Tots.  Toddlers ‘N Tots will make reasonable modifications in its policies, practices, or procedures, when the modifications are necessary to afford services to individuals with disabilities, including children with seizure disorders, unless Toddlers ‘N Tots can demonstrate that making the modifications would fundamentally alter the nature of its services.

Exhibit 2

EMERGENCY ANTI-SEIZURE MEDICATION ADMINISTRATION
POLICY AND PROCEDURE

Toddlers ‘N Tots is committed to complying fully with the Americans with Disabilities Act (“ADA”) and other applicable laws and regulations pertaining to children with disabilities.

Children with epilepsy who attend Toddlers ‘N Tots will require assistance in the event of a seizure.  Some children will require the administration of an emergency anti-seizure medication, a diazepam rectal gel (Diastat), in the event of a prolonged or an acute repetitive seizure.  The Director shall designate those staff members who are trained and authorized to administer diazepam rectal gel.

Before school personnel will administer an emergency anti-seizure medication to a child in an emergency situation, the student’s parent or guardian shall provide Toddlers ‘N Tots with a completed Seizure Emergency Action Plan signed by the parent or guardian and the student’s primary care physician or treating neurologist.  In addition, the student’s parent or guardian shall provide Toddlers ‘N Tots a completed Physician’s Order for the Administration of Diastat completed by the student’s primary care physician or treating neurologist.

Prior to its date of expiration, the prescribed medication shall be supplied to Toddlers ‘N Tots in its original package with the dosage locked in by the dispensing pharmacy. The parent or guardian and the Director of Toddlers ‘N Tots, or the Director’s designee, will verify that the correct dosage is visible in the display window and the green “ready” band is visible.  The medication shall be dispensed in emergency circumstances and thus, a parent or guardian must complete the medication log in the child’s classroom in accordance with Toddlers ‘N Tots’ medication procedures.

A parent or guardian’s written authorization to administer emergency anti-seizure medication shall be effective for the entire school year in which it is granted.  This authorization must be renewed annually. 

Diazepam rectal gel is not to be used more than 5 times a month and/or more than once in 5 days, according to manufacturer dosing recommendations. Any exceptions to this rule must be specified in the student’s Seizure Emergency Action Plan and contained in the Physician’s Order for the Administration of Diazepam Rectal Gel (Diastat).

A student’s parent or guardian, who has given Toddlers ‘N Tots written authorization to administer emergency anti-seizure medication, shall, in accordance with the student's Seizure Emergency Action Plan, notify the Director or the Director’s designee if emergency anti-seizure medication, prescription, or over-the-counter medicines are administered to the student at a time when the student is not present at Toddlers ‘N Tots. Such notification shall be given before or at the beginning of the next school day which the student attends.

Training Requirements:

Training of the designated staff members shall be conducted and repeated annually.  A list of trained staff will be maintained in the Director’s Office. All staff members trained to administer emergency anti-seizure medications shall also be trained in cardiopulmonary resuscitation (CPR).

Notifications:

When a trained staff member determines that the administration of diazepam rectal gel to a student is necessary, the parent or guardian and the Director shall also be notified immediately. 

ASSOCIATED DOCUMENTS

Sample Seizure Emergency Action Plan – Attachment 1

Sample Physician’s Order for the Administration of Diazepam Rectal Gel (Diastat) – Attachment 2

Attachment 1

SEIZURE EMERGENCY ACTION PLAN

Student’s Name: _______________________________________
Parent/Guardian: ______________________________ Relationship to Student: _____________
Address: ______________________________________________________________________
Work Telephone:  __________________________
Home Telephone: __________________________
Cellular Telephone:  ________________________
Parent/Guardian: ______________________________ Relationship to Student: _____________
Address: ______________________________________________________________________
Work Telephone:  __________________________
Home Telephone: __________________________
Cellular Telephone:  ________________________

Emergency Contacts
Name: ______________________________________ Relationship to Student: _____________
Telephone Contact #1 ___________________  Telephone Contact #2: _____________________
Name: ______________________________________ Relationship to Student: _____________
Telephone Contact #1 ___________________  Telephone Contact #2: _____________________
Physician treating student for seizures: ______________________________________________
Office Telephone: _______________________
Other Physician: ________________________________________________________________
Office Telephone: _______________________

SEIZURE PLAN

Fill in blanks, cross out and initial any steps not needed for this student.

Emergency action is necessary when the student has the following symptoms:
______________________________________________________________________________
______________________________________________________________________________

Steps to take during a seizure:

  1. Stay with student during and after seizure.  Note the time a seizure starts and its duration.
  2. Ease student to the floor.  Cushion the student’s head with something soft.
  3. Remove hazards in the area, such as sharp or hard objects, to prevent injury.  Remove other students from area, if possible.
  4. Loosen tight clothing at the neck.
  5. Turn student on his/her side as soon as possible.
  6. DO NOT RESTRAIN MOVEMENT OR PLACE ANYTHING IN MOUTH.
  7. Monitor student while the seizure runs its course and speak to him/her in calming tones.
  8. Monitor breathing and begin artificial respiration if breathing does not resume spontaneously.
  9. Administer Diastat if the seizure last more than ____ minutes or if ____ seizures occur in ____ hours.  Illustrated instructions attached.
  10. Call 911 if student does not wake after ____ minutes or the seizure does not stop after within _____ minutes of giving Diastat.  If 911 is called, transport to ________________________ Hospital.
  11. Following the seizure, allow the student to rest as needed in a quiet area.  Always notify parent/guardian in writing and by telephone.

Daily Seizure Management Plan

1.         What type of seizures does your child have and how often do they occur?
______________________________________________________________________________

______________________________________________________________________________

Date of last seizure: ________________________

2.         Describe your child’s symptoms during and after a seizure episode.

______________________________________________________________________________

______________________________________________________________________________

3.         Does your child have an aura or warning of a seizure coming?  Is he/she able to notify anyone that a seizure is coming?

     Yes _________ No _________.

4.         List all medications your child takes routinely, including how much and how often.

______________________________________________________________________________

______________________________________________________________________________

5.         Does your child experience any side effects to these medications? If yes, please list:

______________________________________________________________________________

______________________________________________________________________________

I/We hereby authorize the administration of diazepam rectal gel to my/our child.  I/We further acknowledge that the diazepam rectal gel will be administered by a trained Toddlers ‘N Tots staff member, who is not a licensed healthcare professional.  By signing this form, I/we acknowledge that Toddlers ‘N Tots and its employees and agents shall incur no liability as a result of any injury sustained by the student from any reaction to any medication to treat a seizure or the administration of such medication, unless the injury is the result of negligence or misconduct on behalf of Toddlers ‘N Tots or its employees.  I/We hereby give permission for the physician completing and signing the Physician’s Order for the Administration of Diastat to my/our child to verify this information with Toddlers ‘N Tots staff and to consult with Toddlers ‘N Tots’ staff regarding the administration of my/our child’s emergency anti-seizure medication.

Parent/Guardian Signature: ________________________________ Date: __________________

Parent/Guardian Signature: ________________________________ Date: __________________

Physician’s Signature: ____________________________________ Date: __________________

Attachment 2

PHYSICIAN’S ORDER FOR THE ADMINISTRATION OF
DIAZEPAM RECTAL GEL (DIASTAT)

Student’s Name:  __________________________________________ D.O.B.: ______________
1.         Medication: __________________    Dosage: _____________
2.         When should the child be treated with Diastat (be very specific please): ______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
3.         Has the child ever received Diastat before and if so how did he/she react?
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
4.         How long should the seizure last before Diastat is administered?
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
5.         What side effects can be expected after the administration of Diastat?
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
6.         What action should be taken if the student has a bowel movement or expels the medication?
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________

7.         Are there any conditions that would restrict Diastat being administered such as cold, respiratory infection, or fever?
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________

__________________________________________            __________________
Physician’s Signature

 

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