SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA AND
THE ANOVA CENTER FOR EDUCATION

I. BACKGROUND

1. The Parties to this Settlement Agreement (Agreement) are the United States of America (United States) and the Anova Center for Education (Anova) headquartered in Santa Rosa, California, (collectively, the Parties).
2. Anova provides private elementary and secondary education to children with neuro-developmental impairments between the ages of five and 22 years.  Anova currently operates two schools—one in Contra Costa County and the other in Sonoma County, California.
3. This Agreement arises out of a complaint filed with the United States alleging that Anova discriminated against a ten year-old student with Autism Spectrum Disorder when it prone restrained¹ the child 77 times over the course of several months.  Based on that complaint, the United States initiated an investigation and a compliance review.
4. The United States’ investigation and compliance review substantiated allegations that through its policies, practices, or procedures, Anova discriminates against children with Autism Spectrum Disorder who, because of their disabilities, have difficulty adhering to Anova’s standard behavior program.  Anova’s failure to reasonably modify its policies, practices and procedures, led to unnecessary and inappropriate reliance on classroom exclusion and restraint to manage behavior in violation of Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12182(b)(2)(A)(ii), and its implementing regulation, 28 C.F.R. § 36.302.  Parents and local public schools provided Anova with the resources to determine how to provide individualized supports and interventions² that would mitigate escalating behavior, facilitate class participation, and reduce Anova’s reliance on restraint, but Anova declined to apply such resources.
5. Anova acknowledges the United States’ position set forth in Paragraph 4, above, and desires to enter into this Agreement, but Anova firmly denies that it has ever discriminated against any of its students or has ever declined to apply available resources.
6. The United States and Anova agree that it is in the Parties’ best interests, and the United States believes that it is in the public interest, to resolve this matter on mutually agreeable terms without resorting to litigation. 

TITLE III COVERAGE

7. The Attorney General is responsible for administering and enforcing Title III of the ADA and the regulation implementing Title III, 28 C.F.R. Part 36.
8. Ensuring that private schools 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, to use alternative means of dispute resolution, where appropriate, including settlement negotiations to resolve disputes, 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), 12212; 28 C.F.R. §§ 36.502, 503, 506.
9. The ADA prohibits discrimination on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.  42 U.S.C. § 12182(a); 28 C.F.R. § 36.201.
10. Anova is a public accommodation under Title III of the ADA because it owns or leases and operates private elementary schools with campuses in Contra Costa and Sonoma Counties, California.  42 U.S.C. §§ 12182(a) and 12181(7)(J); 28 C.F.R. § 36.104.
11. Autism Spectrum Disorder is a developmental disability that can cause significant social, communication, and behavioral challenges.  Autism Spectrum Disorder substantially limits one or more major life activities or major bodily functions, including brain function and is a disability under the ADA.  42 U.S.C. § 12102; 28 C.F.R. § 36.105.
12. The ADA requires that a public accommodation make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the public accommodation can demonstrate that making the reasonable modifications is a fundamental alteration to the nature of such good and services.  42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302. 
13. The vast majority of children who attend Anova were placed at Anova by their public school district pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1482.  Each child placed at Anova pursuant to the IDEA has an Individualized Education Program (IEP) specifying each child’s special education and related services.  The IDEA authorizes public schools to place IDEA-eligible children with IEPs in private schools at public expense, when such placement is necessary to provide special education and related services to the child.  20 U.S.C. § 1412(B)(i). 

INJUNCTIVE RELIEF

14. Anova agrees that when a child’s IEP sets forth or incorporates individualized supports or interventions to mitigate behavior, Anova will provide those services as a reasonable modification to its standard behavior program.³  42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302.  In circumstances where behaviors are negatively affecting the child’s ability to participate successfully in Anova’s educational program, Anova will convene the child’s IEP team, and will ask the IEP team to determine the relative efficacy of the child’s individualized supports or interventions, and, as appropriate, propose developing additional or different supports or interventions.⁴  42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302.
15. Effective immediately, Anova: (1) will not discriminate against any individual on the basis of 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; and (2) will make reasonable modifications to policies, practices, and procedures when such modifications are necessary to afford access to such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities unless it demonstrates that the requested modifications would fundamentally alter the nature of its goods, services or facilities.  When behavioral supports and interventions are set forth or incorporated in a child’s IEP, they will be presumed to be reasonable modifications.⁵
16. Within sixty (60) calendar days of the effective date of this Agreement, Anova will submit to the United States, for review and approval, written policies and procedures regarding Anova's obligations under Title III of the ADA.  Anova will adopt and implement the revised policies and procedures within thirty (30) calendar days of the United States' approval, which will not be unreasonably withheld.  Anova's nondiscrimination policies and procedures will, at a minimum, include the following:
1. A statement that Anova does not discriminate in the provision of services to persons with disabilities, including children with disabilities affecting behavior and their parents or guardians, in all Anova programs; and inclusion of the nondiscrimination policy on the Anova's website at https://www.anovaeducation.org/ and in the employee and parent handbooks. 
2. A requirement that, upon request from parents or guardians, Anova will appropriately consider requests for behavioral supports and interventions, including, specific information about how parents or guardians may request meetings relating to behavior, and protocols for how Anova will consider and respond to such requests.  Anova will also establish and disseminate protocols for how parents or guardians and Anova staff⁶ will identify and implement needed behavioral supports and interventions for children with disabilities affecting behavior.  This may include protocols for when to convene an IEP team or staff and parent or guardian meeting to address the need for reasonable modifications, such as a Behavior Intervention Plan (BIP) based on a Functional Behavior Assessment (FBA) or the need for different or additional supports in a child’s individualized BIP.
3. A revised Anova Employee Manual, on the topic of Physical Management of Challenging Behavior to redress the unnecessary use and reliance on restraint.
4. A policy and practice requiring a staff meeting, which will include an invitation to parents or guardians and IEP team members, if applicable, after each use of restraint.  The policy will require staff and parents or guardians to consider the relative effectiveness of supports or interventions used prior to the restraint, if any.  If the staff or parents or guardians determine that a change to the supports or interventions is necessary, Anova will either make such changes, or if the supports or interventions at issue are set forth or incorporated in an IEP, Anova will convene an IEP meeting to consider necessary changes to the child’s individualized supports or intervention.
17. Within thirty (30) calendar days of the Effective Date of this Agreement, Anova will designate and maintain an ADA Compliance Officer who will have responsibility for monitoring compliance with this Agreement, including ensuring that Anova adopts and implements the policies and procedures set forth in Paragraph 16.  Anova will provide the ADA Compliance Officer with sufficient authority and resources to perform the tasks required by this Agreement, including review of all denied requests relating to a child’s behavioral supports and interventions and any decisions to exclude from enrollment a child with a disability.  The ADA Compliance Officer will maintain records regarding his or her review of all denied requests for behavioral supports and interventions, including additional or different supports and interventions and all decisions to terminate a child’s  enrollment.  These duties will include reporting to the United States pursuant to Paragraph 20.
5. Upon receiving a request related to behavioral supports and interventions from parents or guardians or Anova staff, each designated ADA Compliance Officer will initiate a discussion with parents or guardians and Anova staff to determine whether the child with a disability needs new, different, or additional behavioral supports or interventions and explore what modifications may be appropriate.  Following the discussion, Anova may convene an IEP team meeting or staff meeting and:
1. Determine that an FBA is necessary to better assess what behavioral supports or interventions are necessary and conduct an FBA within three (3) calendar days;
2. Determine that the BIP should be modified with additional or different behavioral supports and interventions and that an FBA is not necessary and implement the new behavioral supports and interventions within one (1) calendar day; or
3. Deny the request.  If a request for modification is denied, Anova will   document each reason for the denial of the request and will submit the documentation to the United States for review.  Anova will provide documentation about requests and decisions denying such requests to the United States consistent with the requirements of Paragraph 20. 
6. Consistent with the requirements of Paragraph 20, Anova will provide documentation to the United States about any decision to terminate enrollment of a child, including information about the child’s disability, whether the disability affects behavior, what supports or interventions were provided prior to termination, and its ultimate basis for termination.  Any decisions to terminate enrollment of a child will comply with state and federal laws.
7. Consistent with the requirements of Paragraph 20, Anova will provide documentation to the United States about Anova’s use of restraint, including the steps taken following each use of restraint to create or modify a child’s individualized supports and interventions.  Within ten (10) calendar days of submitting such documentation to the United States, the Parties will confer to discuss the documentation and to assess Anova’s compliance with this Agreement.
18. Within thirty (30) calendar days of the Department's approval of the revised policies pursuant to Paragraph 16, Anova will: adopt and implement the approved policies; incorporate all revisions into the online versions of written materials; and incorporate the revisions approved pursuant to Paragraph 16 in all written materials that are used or distributed.  Anova will also ensure that all revised policies will be published on its website (currently available at http://www.anovaeducation.org/) in “About Anova” (currently available at http://www.anovaeducation.org/page.cfm?p=506) under a new heading, “Nondiscrimination” for the term of this Agreement.
19. Within thirty (30) calendar days from the date upon which Anova implements the policies and procedures set forth in Paragraph 16, Anova will provide live training on the nondiscrimination requirements of Title III of the ADA and the requirements of this Agreement to all employees with responsibility for considering requests for reasonable modifications, applying individualized supports or interventions to children, or disenrollment.  Training materials will include instruction on providing individualized supports and interventions and on documenting ineffective individualized supports or interventions.  Anova must obtain the United States’ approval of the trainer and the training materials.
8. New employees with comparable responsibilities hired during the term of this Agreement will be provided comparable training within thirty (30) calendar days of their start date.  
9. For the duration of this Agreement, Anova will provide annual, refresher training on the general nondiscrimination requirements of Title III of the ADA to all employees with responsibility for granting or denying enrollment, considering requests for reasonable modifications, providing individualized supports or interventions to children, or evaluating the efficacy of individualized supports or interventions. 
10. Anova may tape the initial training to use for employees hired after the initial training and for refresher trainings. 
11. Anova will create and maintain an attendance log that documents the name of each individual who attends the trainings required in this Paragraph, the individual’s title, and the date the individual attended the training.  Anova will provide copies of the attendance sheets to the United States within ten (10) calendar days of any request for them. 

20. Every nine (9) months for the duration of this Agreement, Anova will provide the United States written monitoring reports that include activities described in Paragraphs 16-19.  Anova will send its written monitoring reports via electronic mail to the United States (to the attention of charlotte.lanvers@usdoj.gov and alyse.bass@usdoj.gov or other person specified by the United States).

IV. OTHER PROVISIONS

21. The Effective Date of this Agreement is the date of the last signature below.  All periods specified in this Agreement will run from the Effective Date, unless otherwise specified.
22. The duration of this Agreement will be three (3) years from the Effective Date.
23. In consideration for this Agreement, the United States agrees to close its investigation and compliance review (DJ No. 202-11-316) without further enforcement action, except as provided in Paragraphs 24–25 of this Agreement. The Parties agree and acknowledge that this consideration is adequate and sufficient.
24. The United States may review compliance with this Agreement at any time.  Anova will cooperate fully with the United States’ efforts to monitor compliance with this Agreement, including but not limited to, providing the United States with reasonably requested information.  If the United States believes that Anova has failed to comply adequately or in a timely manner with any requirement of this Agreement or that any requirement has been violated, the United States will notify Anova in writing and the Parties will attempt to resolve the issue in good faith.  If the Parties are unable to reach a satisfactory conclusion within thirty (30) calendar days of the date the United States notifies Anova, the United States may file a civil action in federal district court to enforce the terms of this Agreement, or take any other action to enforce Title III of the ADA.  
25. Failure by the United States to enforce any provision of this Agreement will not be construed as a waiver of its right to enforce any provision of the Agreement.
26. Any modification of this Agreement requires the written consent of the Parties.  With regard to any of the deadlines specified in this Agreement, Anova will notify the United States at least ten (10) calendar days before any deadline of an anticipated inability to meet the deadline and the reasons why, and will request an extension of time to a specific date.  The United States will not unreasonably deny requested extensions made in good faith and following Anova’s due diligence to meet such a requirement. 
27. If any provision of this Agreement is determined to be invalid, unenforceable, or otherwise contrary to applicable law, such provision will be deemed restated to reflect as nearly as possible and to the fullest extent permitted by applicable law its original intent and will not, in any event, affect any other provisions, all of which will remain valid and enforceable to the fullest extent permitted by applicable law.
28. This Agreement constitutes the entire agreement between the United States and Anova concerning the subject matter described in Paragraphs 1-4, and no other statement, promise, or agreement, either written or oral, made by any party or agent of any party, that is not contained in this Agreement will be enforceable.
29. This Agreement is not intended to remedy any potential violations of the ADA other than those specifically addressed by this Agreement in Paragraphs 1-4.  Nothing in this Agreement will preclude the United States from filing a separate action under the ADA for any alleged violation not covered by this Agreement.
30. This Agreement will be binding on Anova, its agents, employees, successors, and assigns.  If Anova acquires a new facility during the term of this Agreement, Anova will immediately take steps to implement the requirements of this Agreement with respect to that facility. 
31. This Agreement may be executed in counterparts, each of which will be deemed to be an original, but all of which, taken together, will constitute one and the same Agreement.  Facsimile or electronic signatures are acceptable.
32. The signatories below for Anova represent that they have the authority to bind Anova to the terms of this Agreement.

By their signatures below, the Parties respectfully consent to the execution of this Agreement.