SETTLEMENT AGREEMENT

BETWEEN

THE UNITED STATES OF AMERICA,

AND

FCNH, INC. d.b.a.

UTAH COLLEGE OF MASSAGE THERAPY


Settlement Agreement | Department of Justice Press Releases


A.   Background

  1. This matter was initiated by a complaint filed in March 2002 under title III of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12181 et seq. [“ADA”], with the United States Department of Justice against Utah College of Massage Therapy [“UCMT”]. UCMT operates a massage therapy program at seven locations in Utah, Colorado, Nevada and Arizona. The complainant, who is deaf, alleged that UCMT violated title III of the ADA and the United States’ implementing regulation, 28 C.F.R. Part 36, by failing to provide auxiliary aids and services that were necessary for him to attend UCMT’s classes.  The United States’  investigation demonstrated that UCMT assumed the cost of providing a qualified sign language interpreter for the Complainant.  Thereafter, the United States initiated a compliance review of UCMT practices in providing auxiliary aids and services pursuant to 28 C.F.R. § 36.502(c). 
  2. The parties to this Settlement Agreement (“Agreement”) are the United States of America, Utah College of Massage Therapy, and FCNH, Inc.
  3. The Department of Justice [“Department”] is authorized to investigate alleged violations of title III of the ADA. The Department is also authorized to commence a civil action in the United States District 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, and to seek injunctive relief, monetary damages, and civil penalties. 42 U.S.C. § 12188.  In consideration of the terms of this Agreement as set forth herein, the United States agrees to refrain from filing civil suit in this matter, except as provided in paragraph 16.
  4. UCMT, with campuses in Utah, Nevada, Arizona, and Colorado, is a place of public accommodation that offers instruction in massage therapy. 42 U.S.C. §§ 12181(1) and (7)(J). FCNH, Inc. presently owns and operates UCMT within the meaning of title III of the ADA, 42 U.S.C. § 12182(a). UCMT has its principal place of business in Salt Lake City, Utah.  FCNH, Inc. did not own UCMT at the time of the complaint.
  5. The subject of this Agreement is UCMT’s obligation to furnish appropriate auxiliary aids and services, and otherwise modify policies, practices and procedures where necessary to ensure effective communication for individuals with disabilities, in accordance with 42 U.S.C. §§ 12182(b)(2)(A)(ii) and (iii), 28 C.F.R. §§ 36.302 and 36.303.  Nothing in this agreement admits or may be interpreted to imply that UCMT or FCNH, Inc. have violated the ADA.

B.    REMEDIAL ACTION

  1. UCMT, by and through its officials, agents, employees and all persons in active concert or participation with UCMT, shall not engage in any act or practice that has the purpose or effect of unlawfully discriminating against any individual on the basis of disability, in violation of title III of the ADA. Specifically, UCMT shall not, in violation of the ADA, deny a qualified applicant the ability to enroll at UCMT, nor deny a student auxiliary aids and services necessary to ensure effective communication in UCMT’s courses, examinations, and other services.
  2. UCMT will reasonably modify its policies and procedures by including the Policy on Effective Communication with Individuals Who have Hearing, Vision, or Speech Impairments [“Policy”] that is attached as Exhibit A to this Agreement. The attached Policy prohibits UCMT from discriminating against qualified individuals with disabilities on the basis of disability in UCMT’s services, programs, and facilities. The policy also requires UCMT to provide appropriate auxiliary aids and services, as required by 28 C.F.R. § 36.303, and to modify policies, practices or procedures where necessary to ensure effective communication, as described in 28 C.F.R. § 36.302.  
  3. With regard to sign language interpreters, in view of the multiple course cycles at the UCMT campuses,  UCMT may comply with its obligations under the ADA by designating at least 50% of its course cycles at each of its campuses as ones in which a sign language interpreter will be made available to qualified students who are deaf.  For example, if a UCMT campus offers its daytime course four times a year, and its night course twice, at least two of the day cycles and one of the night cycles shall be designated as a cycle that provides a sign language interpreter. 
  4. UCMT shall include information regarding the Policy in advertising and application materials which contain substantive written descriptions of its courses. Such materials shall also state the contact information a student may use to request auxiliary aids and services and shall urge students to make their requests for such services as early as possible so that the requests can be addressed promptly and properly. A prototype for this notice is attached hereto as Exhibit B. UCMT further agrees the full text of the Policy will be posted on its internet website within 60 days of the effective date of this Agreement.
  5. Within 30 days of the Effective Date of this Agreement, UCMT shall designate the Education Manager at each campus as the ADA coordinator for that campus.  Campus ADA coordinators report to the national Director of Accreditation and Licensure who is expressly designated in UCMT’s student catalog and handbook as the person to whom accommodation requests are to be directed.  Any person appointed under this paragraph shall be a regular employee of UCMT and shall receive training in the requirements of the ADA and the specific provisions pertaining to auxiliary aids and services.  At each campus, the ADA Coordinator shall serve as the primary administrative contact on disability issues and shall report to and coordinate with the Director of Accreditation and Licensure with respect to ADA issues.
  6. Within 30 days of the execution of this Agreement, UCMT will revise its internal procedures for the provision of auxiliary aids and services so that they are consistent with the Policy referred to in paragraph 7 above.
  7. For two years from the date of this Agreement, UCMT shall make annual reports to the United States detailing UCMT’s compliance with this Agreement. Annual reports filed with the United States shall include:  (a) a list of individuals who requested auxiliary aids and services; (b) the campus at which such requests were made; (c) the date of each request; (d) the specific request made and the disposition of each request; and (e) if a request was not approved, the reasons for the disapproval, and the aid or service that was provided, if any. The annual reports to the United States shall also include a copy of the advertising and application materials that refer to the Policy.
  8. For two years from the date of this Agreement, the United States shall have the right, upon reasonable notice, to inspect and copy any and all UCMT records related to UCMT’ s obligations stated herein. These records include, but are not limited to, advertising materials, training materials, and relevant student records.
  9. The United States shall protect any confidential student information it obtains under this Agreement to the maximum extent permitted by law.
  10. Within 120 days of the execution of this Agreement, UCMT will provide mandatory training by qualified trainers to the ADA coordinators for each Campus, and to other employees involved in enrollment, on the requirements of the ADA.  The training materials shall be provided to the United States for its approval at least 30 days prior to each annual training session. 

C.    ENFORCEMENT

  1. The United States may review compliance with this Agreement at any time, including investigating complaints received by the United States subsequent to the execution of this Agreement. If the United States believes that UCMT 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 UCMT 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 UCMT, it may institute a civil action in federal district court to enforce the terms of this Agreement and may, in such action, seek any relief available under law. 
  2. For purposes of the immediately preceding paragraph, it is a violation of this Agreement for UCMT to fail to comply in a timely manner with any of its requirements without obtaining sufficient advance written agreement with the Department for an extension of the relevant time frame imposed by the Agreement.
  3. If at any time UCMT desires to modify any portion of this Agreement because of changed conditions making performance impossible or impractical or for any other reason, it will promptly notify the United States in writing, setting forth the facts and circumstances thought to justify modification and the substance of the proposed modification. Until there is written Agreement by the United States to the proposed modification, the proposed modification will not take effect. These actions must receive prior written approval of the United States, which approval shall not be unreasonably withheld or delayed.
  4. Failure by the United States to enforce this entire Agreement or any of its provisions or deadlines shall not be construed as a waiver of the United States’ right to enforce other deadlines and provisions of this Agreement.
  5. A copy of this document or any information contained in it will be made available to any person by UCMT or the Department on request.  

D.    NOTICE

  1. Any notice or report required or permitted herein shall be given as follows:
    1. If by the United States to UCMT by Federal Express or other overnight mail to:

    Dawnette Cabaluna
    Vice President Education
    Utah College of Massage Therapy
    25 South 300 East
    Salt Lake City, Utah  84111

    and to:

    Chris Wangsgard
    Parsons Behle & Latimer
    One Utah Center
    201 South Main Street, Suite 1800
    Salt Lake City, Utah  84111

    with a copy to:

    Robert C. Boehm
    Senior Vice President and General Counsel
    FCNH, Inc.
    770 South Dixie Highway
    Coral Gables, Florida  33146

    Melissa Wade
    2001 West Sample Road, Suite 318
    Pompano Beach, Florida  33064

    Elizabeth Kulbicki-Hepler
    ADA Coordinator and Director of
    Accreditation and Licensure
    517 Progress Drive
    Linthicum, Maryland  2109

    1. If by UCMT to the United States, Federal Express or other overnight mail

    John L. Wodatch, Chief
    U.S. Department of Justice
    Disability Rights Section-NYA
    Civil Rights Division
    950 Pennsylvania Avenue NW
    Washington, D.C. 20530

    with a copy to:

    Laura F. Einstein
    Trial Attorney
    U.S. Department of Justice
    Disability Rights Section-NYA
    Civil Rights Division
    950 Pennsylvania Avenue NW
    Washington, D.C. 20530

E.    SCOPE OF AGREEMENT

  1. This Agreement, and the exhibits attached hereto, constitute the entire Agreement between the Parties related to 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 shall be enforceable. The scope of this Agreement is limited to the compliance requirements set forth in paragraphs 5 through 13 above, and it does not purport to remedy any other potential violations of the ADA or any other federal law. This Agreement does not affect UCMT’s continuing responsibility to comply with all aspects of the ADA.
  2. The individuals signing this Agreement represent that they are authorized to bind the parties to this Agreement.
  3. This Agreement shall be binding upon FCNH, Inc., UCMT, their agents and employees with respect to UCMT and its campuses.
  4. The effective date of this Agreement is the date of the last signature below. The Agreement will remain in effect for two years.

For Utah College of Massage Therapy:
For the United States:



________________________
[ name of representative]
Utah College of Massage Therapy
25 South 300 East
Salt Lake City, Utah  84111

WAN J. KIM
Assistant Attorney General for Civil Rights


By: ______________________
JOHN L. WODATCH, Chief
PHILIP L. BREEN, Special Legal Counsel
ALLISON J. NICHOL, Deputy Chief
LAURA F. EINSTEIN, Attorney
Disability Rights Section
Civil Rights Division
U.S. Department of Justice-NYA
950 Pennsylvania Avenue NW
Washington, DC 20530
(202) 514-9583

Date         6/26/07         Date         7/9/07        



FCNH, Inc.


By:
Its:

Date         6/26/2007        

 



Exhibit A

UTAH COLLEGE OF MASSAGE THERAPY

POLICY ON EFFECTIVE COMMUNICATION WITH INDIVIDUALS WHO HAVE
HEARING, VISION, OR SPEECH IMPAIRMENTS

Introduction and Overview

UCMT will provide auxiliary aids and services to students with a disability in accordance with 28 C.F.R. § 36.303, and otherwise make reasonable modifications to its policies and practices in accordance with 28 C.F.R. § 36.302, in order to ensure that there is effective communication in its courses, examinations, and other services. This policy statement describes the procedures for processing requests for such aids and services.

The Request Process

An applicant or enrolled student who believes he/she may need an auxiliary aid or service, should submit a request to the campus Education Manager who is also designated as the campus ADA Coordinator.  The ADA Coordinator, or his/her designee, shall meet promptly with the individual to discuss the request. A request for auxiliary aids or services may be made verbally or in writing.  Campus ADA Coordinators will forward requests to FCNH, Inc.’s Director of Accreditation and Licensure.  Applicants or enrolled students may also submit requests directly to FCNH, Inc.’s ADA representative:

Elizabeth Kulbicki-Hepler
Director of Accreditation and
Licensure/ADA Representative
517 Progress Drive
Linthicum, MD  21090
elizabethk@steinerleisure.com
Voice:  (410) 636-7929
Fax:  (410) 636-7857

The discussion with the applicant or student may address the limitations imposed by the individual’s disability and the effectiveness of potential auxiliary aids or services in enabling the student to have the effective communication necessary to meet the course requirements or take required examinations. Appropriate auxiliary aids and services are determined on an individual basis.

Officials who receive requests for accommodation should respond to them promptly. The discussions between UCMT and the student should commence immediately.

Examples of Auxiliary Aids and Services:

The following are examples of auxiliary aids or services, and other modifications to be discussed with applicants or students with disabilities in order to ensure effective communication in its courses, examinations, and other services.



Exhibit B

It is the policy of UCMT to comply with the Americans with Disabilities Act of 1990 (ADA). UCMT will provide auxiliary aids and services to students with hearing, speech or vision impairments in accordance with 28 C.F.R. § 36.303, and otherwise make reasonable modifications to its policies and practices in accordance with 28 C.F.R. § 36.302, in order that its programs are accessible to individuals with a disability.

If you have a need for auxiliary aids or services, or other modifications to UCMT policies and practices, please contact:  your campus Education Manager/ADA Coordinator.

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November 2, 2007