SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
PHILADELPHIA FREEDOM VALLEY YMCA - ROCKY RUN BRANCH
UNDER THE AMERICANS WITH DISABILITIES ACT
- The parties to this Agreement are the United States of America (United States) and the Philadelphia Freedom Valley YMCA—Rocky Run Branch (Rocky Run YMCA) in Media, Pennsylvania.
- This matter is based upon a complaint filed with the United States, in which Complainants alleged that Rocky Run YMCA discriminated against their child based on her disability in violation of title III of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12181-12189. Specifically, Complainants allege that their child was denied the opportunity to participate in several Rocky Run YMCA childcare programs on the basis of the child's type 1 diabetes.
- The United States and Rocky Run YMCA have reached agreement that it is in the parties' best interests, and the United States believes that it is in the public interest, to resolve this dispute. The parties have therefore voluntarily entered into this Agreement, as set forth below.
TITLE III COVERAGE AND FINDINGS
- The Attorney General is responsible for administering and enforcing title III of the ADA, 42 U.S.C. §§ 12181-12189, and the relevant regulation implementing title III, 28 C.F.R. Part 36.
- Complainants' child has type 1 diabetes, a physical impairment that substantially limits one or more major life activities, including the operations of the endocrine system, which is a major bodily function. Accordingly, she has a disability within the meaning of 42 U.S.C. § 12102 and 28 C.F.R. § 36.104.
- Rocky Run YMCA has its principal location at 1299 West Baltimore Pike, Media, Pennsylvania 19063 and serves Media, Aston, Newtown Square, Edgemont, Springfield and the surrounding communities. Rocky Run YMCA administers a wide range of childcare programs and camps, including the Childcare Development Center, before and after-school programs at Concord and Bethel Springs Elementary Schools (Prime Time Program), the Bears Kindergarten Enrichment Program (Bears Program), and the Rocky Run Summer Day Camp (Day Camp Program).
- Rocky Run YMCA owns, leases (or leases to), or operates places of public accommodation within the meaning of 42 U.S.C. § 12182(a); is a nonprofit organization that operates these facilities and is, therefore, a private entity within the meaning of 42 U.S.C. § 12181(6); and is a public accommodation within the meaning of 42 U.S.C. § 12181(7)(K) and (L) because its operations affect commerce and it operates day care centers and places of recreation. See also 28 C.F.R. § 36.104.
- Under title III of the ADA, no person who owns, leases (or leases to), or operates a public accommodation may discriminate against an individual on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a public accommodation. 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a).
- The ADA prohibits a public accommodation 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. Specifically, the ADA prohibits a public accommodation from denying the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity to: (1) an individual on the basis of disability and (2) an individual because of their relationship or association with an individual with a disability. 42 U.S.C. §§ 12182(b)(1)(A)(i) and 12182(b)(1)(E); 28 C.F.R. §§ 36.202(a) and 36.205. Failure to make reasonable modifications to policies, practices, or procedures, when such modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities is also discriminatory unless the modifications would constitute a fundamental alteration. 42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302. Absent a showing of fundamental alteration, where a parent and a child's physician or other qualified health care professional deem it appropriate for the child to be assisted in diabetes care by a non-nurse (relying on objective medical data as to the current health status of the individual child), allowing a trained layperson to do so would be a reasonable modification under the ADA.
- Ensuring that childcare providers do not discriminate on the basis of disability is an issue of general public importance. The United States is authorized to investigate alleged violations of title III of the ADA and to bring a civil action in federal court in any case that involves a pattern or practice of discrimination or that raises an issue of general public importance. 42 U.S.C. § 12188(b).
- As a result of its investigation, the United States has determined:
- In early May 2008, Complainants enrolled their then six year-old child in three Rocky Run YMCA childcare programs: the Bears Program, which ran from 11:30 a.m. until 3:00 p.m. weekdays after school; the Prime Time Program, which ran from 3:00 p.m. until 6:00 p.m. weekdays after the Bears Program; and the Day Camp Program, which ran from 7:00 a.m. until 6:00 p.m. on weekdays during the summer. Complainants informed Rocky Run YMCA of their child's type 1 diabetes at the time of enrollment.
- With supervision from an adult, Complainants' child could monitor her blood glucose levels and administer insulin on her pump. Accordingly, Complainants offered to train Rocky Run YMCA staff to administer glucagon; recognize signs and symptoms of low and high blood glucose levels; and supervise their child in administering insulin and counting carbohydrates. Complainants also provided Rocky Run YMCA a detailed schedule of blood glucose checks and materials about recognizing abnormal blood glucose levels.
- Thereafter, Complainants trained Rocky Run YMCA staff on their child's diabetes care needs, in accordance with Paragraph 11(b), above. As part of the training, Complainants arranged for a representative from Animas, an insulin pump company, to train staff on supervising the child's insulin administration.
- Bears and Prime Time Programs: In a letter to Complainants dated May 20, 2008, Rocky Run YMCA's Senior Family Services Director expressed concern about caring for the child's diabetes needs. The letter detailed the conditions under which Rocky Run YMCA would permit Complainants' child to participate in the school-based programs. This included a condition that Complainant (child's mother) would come to the Bears Program each day at 11:30 a.m. to supervise her child self-administer insulin. Complainant reluctantly agreed to their condition to ensure that her child could participate in the Bears and Prime Time Programs.
- Ultimately, Rocky Run YMCA refused to supervise the child's administration of insulin or to administer glucagon in the event of loss of consciousness, and indicated that it would call 911. Complainants' child attended the Bears and Prime Time Programs from May 19, 2008 until June 3, 2008. During that time, Complainant went to the Bears Program every day at 11:30 a.m. to supervise her child administer insulin. The child's health provider recommended administering glucagon in the event of a low blood glucose level. Rocky Run YMCA ignored the health provider's recommendation and proposed calling 911. Finally, Rocky Run YMCA restricted Complainants' child from attending the full Prime Time Program, which ran from 3:00 p.m. until 6:00 p.m. and only permitted the child to attend on a modified basis, from 3:00 p.m. until 4:00 p.m.
- Day Camp Program: On May 30, 2008, Rocky Run YMCA staff met with Complainants to discuss their child's participation in the Day Camp Program. During the meeting, Rocky Run YMCA's Executive Director informed Complainants that it would be difficult to monitor what their child ate during off site field trips and asked Complainants to provide an aide to monitor their child during her participation in the Day Camp Program. Rocky Run YMCA offered to waive the cost of registration in the Day Camp Program to offset the cost of hiring an aide. Ultimately, Complainants' child did not participate in the Day Camp Program.
- Application materials for the 2008 Day Camp Program, which have since been modified, included a “Special Needs Information Form,” that stated, in relevant part:
- Does your child have an IEP or Behavioral Plan in place during the school year?
__ Yes __ No
Please describe the reason for the Behavioral Plan.
- Does your child have a behavioral specialist?
__ Yes __ No
Please List his/her name: ______________
- What agency does your Behavioral Specialist and TSS [therapeutic support staff ] worker report to? Please list their name and phone number below:
We will need to have a copy of this plan on file throughout the summer. We will not admit a child with a TSS to our program without their IEP on file.
The Day Camp Program operates on a 1 to 10 ratio in most age groups. In order to register for these programs, your child must be able to be serviced in these ratios. If your child has a TSS that assists them in function[ing] in this ratio then the TSS must be in place before the start of the camp season. If a child does not have their TSS in place and cannot operate at the required ratio, they will not be admitted to camp until a TSS is available.
- The United States, having considered all information gathered in the course of its investigation, has determined that Rocky Run YMCA violated the ADA by: (1) failing to make reasonable modifications to policies, practices and procedures when necessary to ensure participation in Rocky Run YMCA childcare programs; (2) denying Complainants' child the opportunity to fully participate in Rocky Run YMCA childcare programs; (3) by association, denying Complainants the opportunity to enroll their child in and utilize the childcare programs; and (4) imposing or applying eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities, in violation of § 12182; 28 C.F.R. §§ 36.202(a), 36.205, 36.301(a) and 36.302.
- Rocky Run YMCA denies the allegations of the complaint and the determinations of the United States regarding those allegations. Nevertheless, to ensure full compliance with the ADA, Rocky Run YMCA agrees to establish and implement policies and procedures, set forth below, that are designed to afford children with diabetes an equal opportunity to participate in and benefit from its services. Rocky Run YMCA also agrees to make reasonable modifications in its policies, practices, and procedures, when necessary, to provide appropriate supervision or assistance to children with diabetes in order to ensure safe participation in its childcare programs.
- Complainants and Complainants' child are aggrieved persons pursuant to 42 U.S.C. § 12188(b)(2)(B).
ACTIONS TO BE TAKEN BY ROCKY RUN YMCA
- Effective immediately, Rocky Run YMCA: (1) will not discriminate against any individual on the basis of disability, or on the basis of any individual's association or relationship with an individual with a disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations offered at any of its current or future locations; (2) will not deny reasonable modifications to policies, practices, and procedures when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities unless the modifications would fundamentally alter the nature of its services or facilities; and (3) will not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations, unless such criteria can be shown to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered.
- ADA Compliance Officer: Within sixty (60) days of the effective date of this Agreement, Rocky Run YMCA shall designate and maintain an ADA Compliance Officer who shall have responsibility for monitoring compliance with this Agreement, including ensuring that Rocky Run YMCA adopts and implements the policies and procedures set forth in Paragraph 17, below. Rocky Run YMCA will provide the ADA Compliance Officer with sufficient authority and resources to perform the tasks required by this Agreement, including review of all denied reasonable modification requests and any decisions to exclude from enrollment a child with a disability. The ADA Compliance Officer is authorized to receive and review requests for modifications to policies, practices, and procedures with respect to childcare services. The contact information for Rocky Run YMCA's ADA Compliance Officer shall be publicized in the parent handbook, on Rocky Run YMCA's website, https://philaymca.org/branches/rocky-run/, and disseminated with application materials provided to parents or guardians of prospective enrollees. The ADA Compliance Officer will maintain records regarding his or her review of all denied reasonable modification requests and all decisions to exclude a child with a disability from enrollment. As set forth in Paragraph 24, every twelve (12) months for the duration of this Agreement, Rocky Run YMCA shall submit a written report to the United States that documents the ADA Compliance Officer's reviews of all denied reasonable modification requests and all decisions to exclude a child with a disability from enrollment.
- Modification of Policies and Procedures: Within sixty (60) days of the effective date of this Agreement, Rocky Run YMCA shall submit to the United States, for review and approval, written policies and procedures regarding Rocky Run YMCA's obligations under title III of the ADA, to be adopted and implemented at all Rocky Run YMCA locations. Rocky Run YMCA will adopt and implement the revised policies and procedures within thirty (30) days of the United States' approval. Rocky Run YMCA's policies and procedures shall, at a minimum, include the following:
- A nondiscrimination policy that states that Rocky Run YMCA does not discriminate in the provision of services to persons with disabilities, including children with diabetes, in all YMCA programs, including but not limited to childcare, camps, before and after-school programs, classes and recreational programs; and inclusion of the nondiscrimination policy on Rocky Run YMCA's website, https://philaymca.org/branches/rocky-run/, and in its employee and parent handbooks.
- A sample Diabetes Medical Management Plan (DMMP) that is consistent with the National Diabetes Education Program's Sample Diabetes Medical Management Plan: http://ndep.nih.gov/media/sample-diabetes-medical-management-plan-508.pdf; and inclusion of the sample DMMP on Rocky Run YMCA's website, https://philaymca.org/branches/rocky-run/, and in its parent handbook.
- Information for parents of children with disabilities, explaining how to request modifications to Rocky Run YMCA's policies, practices, and procedures with respect to childcare services. This information shall be publicized in the parent handbook and on Rocky Run YMCA's website, https://philaymca.org/branches/rocky-run/, and disseminated with application materials provided to parents or guardians of prospective enrollees.
- Modifications to its current eligibility criteria by removing unnecessary inquiries that screen out or tend to screen out individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages or accommodations.
- Adopt and implement a policy stating that Rocky Run YMCA will make reasonable modifications for children with diabetes, upon request from the child's parent or guardian, unless such a request amounts to a fundamental alteration of the program. Rocky Run YMCA will make individualized determinations based on the specific facts of each request and will not apply a general prohibition against providing particular types of reasonable modifications. Upon receiving a request, Rocky Run YMCA will follow the procedure specified in Paragraph 21 for considering that request.
- Materials for annual training on the general nondiscrimination requirements of title III, which shall include training on diabetes management for employees and volunteers who work in Rocky Run YMCA programs serving children, including childcare, camps, before and after-school programs, and classes and recreational programs.
- Within thirty (30) days from the date upon which Rocky Run YMCA implements the policies and procedures set forth in Paragraph 17, above, Rocky Run YMCA shall publicize the policies and procedures by distributing them to all its locations.
- Within sixty (60) days from the date upon which Rocky Run YMCA implements the policies and procedures set forth in Paragraph 17, Rocky Run YMCA will provide annual training on the general nondiscrimination requirements of title III of the ADA to all employees and volunteers with responsibility for granting or denying enrollment and/or considering requests for reasonable modification. New employees and volunteers with comparable responsibilities hired during the term of this Agreement shall be provided comparable training within thirty (30) days of their start date. For the duration of this Agreement, Rocky Run YMCA will provide annual, refresher training on the general nondiscrimination requirements of title III of the ADA to all employees and volunteers with responsibility for granting or denying enrollment and/or considering requests for reasonable modifications.
- Rocky Run YMCA will create and maintain an attendance log that documents the name of each individual who attends the trainings required in Paragraph 17, his or her title, and the date he or she attended the training. Rocky Run YMCA shall provide copies of the attendance sheets to the United States within ten (10) days of any request for them.
- Upon receiving a request for a modification, Rocky Run YMCA will initiate a discussion with the parent(s) or guardian(s) to determine whether the child has a disability for which he or she needs modification(s) and to explore what modification(s) may be available. Following the discussion, Rocky Run YMCA may:
- Grant the request;
- Make a narrowly tailored request for medical documentation relating to the child's disability and any necessary modifications(s); or
- Deny the request. If a request for modification is denied, Rocky Run YMCA will document each and every reason for the denial of the request and shall submit the documentation to the ADA Compliance Officer for review. Rocky Run YMCA shall provide documentation about requests for reasonable modifications and decisions denying such requests to the United States consistent with the requirements of Paragraph 23, below.
- A response to a request for reasonable modification will be provided by Rocky Run YMCA in writing, within ten (10) days from the date the request is received. If a request for reasonable modification is denied, Rocky Run YMCA shall notify the child's parent(s) or guardian(s), in writing, of the reason(s) for the denial.
- Within seven (7) business days of a decision to deny admission to a child with a disability or deny a requested modification of polices, practices or procedures for a child with a disability, the ADA Compliance Officer must provide to the United States the documents related to the decision, as indicated in Paragraph 21(c) above, the identities of all individuals who participated in the decision; and all reasons underlying the decision. This information should be sent by overnight mail or email.
- Every twelve months, for the duration of this Agreement, Rocky Run YMCA will provide the United States written monitoring reports that include activities described in Paragraphs 15-23. Upon request, Rocky Run YMCA will provide the United States all documentation underlying or related to the reports of Rocky Run YMCA compliance with this Agreement. Rocky Run YMCA shall send monitoring reports via electronic mail to the United States (to the attention of firstname.lastname@example.org or other person specified by the United States) or via Federal Express to:
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
1425 New York Ave., NW
Washington, DC 20005
[DJ # 202-62-320]
- If any issues arise that affect the anticipated completion dates set forth in Paragraphs 15-24, Rocky Run YMCA will immediately notify counsel for the United States of the issue(s), and the parties will attempt to resolve those issues in good faith. Until the parties have agreed to modify completion dates in writing, the dates in the Agreement remain applicable. A failure to comply with deadlines agreed upon in this Agreement constitutes a violation of this Agreement.
- In consideration for the Agreement set forth above, the United States will close its investigation of DJ # 202-62-320.
- The United States may review Rocky Run YMCA's compliance with this Agreement or title III of the ADA at any time. If the United States believes that title III of the ADA, this Agreement, or any portion of it has been violated, it may institute a civil action in the appropriate U.S. District Court to enforce this Agreement and/or title III of the ADA.
- Failure by the United States to enforce any provision in this Agreement is not a waiver of the United States' rights to enforce any provision of this Agreement.
- 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 United States and Rocky Run YMCA 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.
- This Agreement is binding on Rocky Run YMCA, including all principals, agents, executors, administrators, representatives, employees, successors in interest, beneficiaries, and assignees. In the event that Rocky Run YMCA seeks to sell, transfer, or assign all or part of its interest during the term of this Agreement, as a condition of sale, transfer or assignment, Rocky Run YMCA will obtain the written agreement of the successor, buyer, transferee, or assignee to all obligations remaining under this Agreement for the remaining term of this Agreement.
- The signatory for Rocky Run YMCA represents that he is authorized to bind Rocky Run YMCA to this Agreement.
- This Agreement constitutes the entire agreement between the United States and Rocky Run YMCA on the matters raised herein, and no prior or contemporaneous statement, promise, or agreement, either written or oral, made by any party or agents of any party, that is not contained in this written agreement, including any attachments, is enforceable. This Agreement can only be modified by mutual written agreement of the parties.
- Nothing in this Agreement relieves Rocky Run YMCA of its obligation to fully comply with the requirements of the ADA.
- Rocky Run YMCA shall not discriminate or retaliate against any person because of his or her participation in this matter.
EFFECTIVE DATE/TERMINATION DATE
- The effective date of this Agreement is the date of the last signature below.
- The duration of this Agreement will be two (2) years from the effective date of this Agreement.
AGREED AND CONSENTED TO:
UNITED STATES OF AMERICA
PHILADELPHIA FREEDOM VALLEY YMCA
/s/ Shaun Elliott
President and CEO
Philadelphia Freedom Valley YMCA
400 Fayette Street, Suite 250
Conshohocken, PA 19428
May 19, 2016
Principal Deputy Assistant Attorney General
EVE L. HILL
Deputy Assistant Attorney General
Civil Rights Division
REBECCA B. BOND, Chief
KATHLEEN P. WOLFE, Special Litigation Counsel
AMANDA L. MAISELS, Deputy Chief
/s/ Charlotte Lanvers
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
May 19, 2016