SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
AND
ARLINGTON-MANSFIELD AREA YMCA
UNDER THE AMERICANS WITH DISABILITIES ACT
DJ# 202-73-385

BACKGROUND

1. The parties to this Agreement are the United States Department of Justice (United States) and Arlington-Mansfield Area YMCA of Arlington, Texas (Arlington-Mansfield Area YMCA).
2. This matter is based upon a complaint filed with the United States, in which a Complainant alleged that Arlington-Mansfield Area YMCA of Arlington, Texas, previously known as YMCA of Arlington, denied her then six year-old son admission to a summer day camp program on the basis of her son's disability by failing to make reasonable modifications, in violation of title III of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12181-12189.  Specifically, Complainant alleges that her son was denied admission and the opportunity to participate in an Arlington-Mansfield Area YMCA summer day camp program on the basis of Complainant's son's type 1 diabetes.  Complainant also alleges that Arlington-Mansfield Area YMCA's enrollment materials screen out or tend to screen out children with disabilities.
3. The United States and Arlington-Mansfield Area 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

4. The Attorney General is responsible for administering and enforcing title III of the ADA, 42 U.S.C. §§ 12181-12189, and the regulation implementing title III, 28 C.F.R. Part 36.
5. Complainant's 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, he has a disability within the meaning of 42 U.S.C. § 12102; 28 C.F.R. § 36.104.
6. Arlington-Mansfield Area YMCA has its principal location at 1148 W. Pioneer Parkway #H, Arlington, Texas 76013 and serves the Arlington and Mansfield communities near Dallas and Ft. Worth, Texas. Arlington-Mansfield Area YMCA is one of the largest childcare providers of school-aged children in Arlington, Texas. In 2012, nearly 900 children participated in Arlington-Mansfield Area YMCA before and after-school programs and nearly 450 children participated in Arlington-Mansfield Area YMCA summer camp programs.
7. In 2012, Arlington-Mansfield Area YMCA offered summer day camp programs at three locations, including Camp Southwest located at the Miller Elementary School, 6401 W. Pleasant Ridge Road, Arlington, Texas 76016. Arlington-Mansfield Area YMCA did not employ a nurse at that location.
8. Arlington-Mansfield Area 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.
9. 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) and 36.301(a).
10. 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 in 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. Id.
11. 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).
12. As a result of its investigation, the United States has determined:
    1. In late March of 2012, Complainant spoke with Arlington-Mansfield Area YMCA staff about enrolling her then six year-old child in an Arlington-Mansfield Area YMCA summer day camp program at Miller Elementary School in Arlington, Texas.
    2. Shortly thereafter, Arlington-Mansfield Area YMCA's Director of Childcare informed Complainant that Arlington-Mansfield Area YMCA would assist Complainant's child by monitoring the child and tracking the child's blood glucose levels and food consumption, but would not be able to provide insulin injections to her child.
    3. On or around April 2, 2012, Complainant discussed her child's rights under the ADA with Arlington-Mansfield Area YMCA, and with the assistance of representatives from the American Diabetes Association, emailed the Director of Childcare links to several settlement agreements between the United States and other childcare providers about diabetes care in childcare settings.
    4. Thereafter, Complainant retained representation from Disability Rights Texas, who contacted Arlington-Mansfield Area YMCA about Complainant's child's participation in the summer day camp program. Disability Rights Texas communicated with Arlington-Mansfield Area YMCA. Arlington-Mansfield Area YMCA reiterated its offer to monitor the child and track the child's blood glucose levels and food consumption, but advised that it would not be able to provide insulin injections.
    5. On August 15, 2012, Arlington-Mansfield Area YMCA, through its counsel, informed Disability Rights Texas that they had identified potential independent contractors willing to administer insulin injections. By this date, there were two full days remaining in the summer day camp program and Complainant had made other childcare arrangements for her son.
    6. Arlington-Mansfield Area YMCA's Summer Camp Enrollment Form contains inquiries about a child's health history requiring that parents or guardians disclose information about diagnosis, including:
       1. An inquiry about whether the following diagnoses apply to their child's health history: ADD, ADHD, Existing Illness, Diabetes, Takes Daily Medication, Asthma, or Other.
       2. An inquiry about whether a 1:12 staff ratio is adequate for their child's care needs. If it is not adequate, they must explain why it is not adequate.
    7. Arlington-Mansfield Area YMCA's Summer Day Camp Program Policies and Procedures includes Arlington-Mansfield Area YMCA's Children with Special Needs Policy, which states:

       The Childcare Department must be informed before a child with special needs, disabilities, chronic illnesses and/or any medically fragile conditions is enrolled. If your child falls into one of the above categories, please contact a Childcare Program Director before beginning the enrollment process. If at any time we feel that a child has special needs and requires more individualized care than we are able to offer, we may offer suggestions of other options and/or rescind care from our program. In such cases, the parent will be notified by a Childcare Program Director.

13. The United States, having considered all information gathered in the course of its investigation, has determined that Arlington-Mansfield Area YMCA violated the ADA by: (1) failing to make reasonable modifications to policies, practices and procedures when necessary to ensure participation in a Arlington-Mansfield Area YMCA summer day camp program; (2) denying Complainant's child the opportunity to participate in the Arlington-Mansfield Area YMCA summer day camp program; (3) by association, denying Complainant the opportunity to enroll her child in and utilize the summer day camp program; and (4) imposing or applying eligibility criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, in violation of 42 U.S.C. § 12182; 28 C.F.R. §§ 36.202(a), 36.205, 36.301(a) and 36.302.
14. Arlington-Mansfield Area YMCA denies the allegations of the complaint. Nevertheless, to ensure full compliance with the ADA, Arlington-Mansfield Area 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. Arlington-Mansfield Area 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.
15. Complainant and Complainant's child are aggrieved persons pursuant to 42 U.S.C. § 12188(b)(2)(B).

    ACTIONS TO BE TAKEN BY ARLINGTON-MANSFIELD AREA YMCA

16. Effective immediately, Arlington-Mansfield Area 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.
17. ADA Compliance Officer: Within sixty (60) days of the effective date of this Agreement, Arlington-Mansfield Area YMCA shall designate and maintain an ADA Compliance Officer who shall have responsibility for monitoring compliance with this Agreement, including ensuring that Arlington-Mansfield Area YMCA adopts and implements the policies and procedures set forth in Paragraph 18, below, of this Agreement. Arlington-Mansfield Area 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 decision to exclude from enrollment a child with a disability.
    1. The ADA Compliance Officer will maintain records regarding his or her reviews of all denied reasonable modification requests and all decisions to exclude a child with a disability from enrollment.
    2. As set forth in Paragraph 26, every twelve (12) months for the duration of this Agreement, Arlington-Mansfield Area YMCA shall submit a written report to the United States that documents the ADA Compliance Officer's reviews and decisions.
18. Modification of Policies and Procedures: Within eighty (80) days of the effective date of this Agreement, Arlington-Mansfield Area YMCA shall submit to the United States, for review and approval, written policies and procedures regarding Arlington-Mansfield Area YMCA's obligations under title III of the ADA, to be adopted and implemented at all Arlington-Mansfield Area YMCA locations. Arlington-Mansfield Area YMCA will adopt and implement the revised policies and procedures within sixty (60) days of the United States' approval. Arlington-Mansfield Area YMCA's policies and procedures shall, at a minimum, include the following:
    1. A nondiscrimination policy that states that Arlington-Mansfield Area YMCA does not discriminate in the provision of services to persons with disabilities, 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 Arlington-Mansfield Area YMCA's website at http://www.ymca-arlington.org/ and in its employee and parent/guardian handbooks.
    2. A sample Diabetes Medical Management Plan (DMMP) that is modeled after 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 Arlington-Mansfield Area YMCA's website at http://www.ymca-arlington.org/ and in the parent/guardian handbook.
    3. The designation of one individual per branch who is authorized to receive and review requests for modifications to policies, practices, and procedures with respect to childcare services. The contact information for each branch designee, as well as the contact information for Arlington-Mansfield Area YMCA's ADA Compliance Officer, shall be publicized in the parent/guardian handbook, on Arlington-Mansfield Area YMCA's website, http://www.ymca-arlington.org/, and disseminated with application materials provided to parents or guardians of prospective enrollees.
    4. Information for parents or guardians of children with disabilities, explaining how to request modifications to Arlington-Mansfield Area YMCA's policies, practices, and procedures with respect to childcare services. This information shall be publicized in the parent/guardian handbook and on Arlington-Mansfield Area YMCA's website, http://www.ymca-arlington.org/, and disseminated with application materials provided to parents or guardians of prospective enrollees.
    5. Modifications to Arlington-Mansfield Area YMCA's Summer Camp Enrollment Form described in Paragraph 12(f), by removing unnecessary inquiries that screen out or tend to screen out individuals with disabilities. Arlington-Mansfield Area will replace the language cited in 12(f) with the following language:

       If your child has a disability, impairment or condition that requires medication or other accommodations, please inform the YMCA of your child's needs before the program begins to ensure that the YMCA is prepared to address your child's needs. Once a parent/guardian submits a modification request, Arlington-Mansfield Area YMCA will consider that request on a case-by-case basis and will attempt to accommodate your child within a reasonable amount of time.

    6. Modifications to current policies and practices, including but not limited to modifying the language from the Children with Special Needs Policy described in Paragraph 12(g) to:

       Inform the Childcare Department if your child has a disability, impairment or condition that requires medication or other modifications before the childcare program begins to ensure that Arlington-Mansfield Area YMCA is prepared to address your child's needs.

    7. Arlington-Mansfield Area YMCA will also adopt and implement a policy stating that Arlington-Mansfield 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. Arlington-Mansfield Area 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, Arlington-Mansfield Area YMCA will follow the procedure specified in Paragraph 22 for considering that request.
    8. Materials for the annual training on general nondiscrimination requirements of title III, which shall include information on diabetes management, will be made available through the Arlington-Mansfield Area YMCA's website.
19. Within thirty (30) days from the date upon which Arlington-Mansfield Area YMCA adopts and implements the policies and procedures set forth in Paragraph 18, above, Arlington-Mansfield Area YMCA shall publicize the policies and procedures by distributing them to all branch locations. Arlington-Mansfield Area YMCA will conspicuously post the non-discrimination policy and the policies and procedures adopted pursuant to Paragraph 18 of this Agreement in the reception area of each Arlington-Mansfield Area YMCA location for the duration of this Agreement.
20. Within thirty (30) days from the date upon which Arlington-Mansfield Area YMCA implements the policies and procedures set forth in Paragraph 18, Arlington-Mansfield Area 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 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, Arlington-Mansfield Area YMCA 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 and/or considering requests for reasonable modification.
21. Arlington-Mansfield Area YMCA will create and maintain an attendance log that documents the name of each individual who attends the trainings required in Paragraph 20, his or her title, and the date he or she attended the training. Arlington-Mansfield Area YMCA shall provide copies of the attendance sheets to the United States within ten (10) business days of any request for them.
22. Upon receiving a request for a modification, Arlington-Mansfield Area 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, Arlington-Mansfield Area YMCA may:
    1. Grant the request;
    2. Make a narrowly tailored request for medical documentation relating to the child's disability and any necessary modifications(s); or
    3. Deny the request. If a request for modification is denied, Arlington-Mansfield Area 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. Arlington-Mansfield Area YMCA shall provide documentation about requests for reasonable modifications and decisions denying such requests to the United States consistent with the requirements of Paragraph 24, below.
23. A response to a request for reasonable modification will be provided by Arlington-Mansfield Area YMCA in writing, within ten (10) business days from the date the request is received. If a request for reasonable modification is denied, Arlington-Mansfield Area YMCA shall notify the child's parent(s) or guardian(s), in writing, of the reason(s) for the denial.
24. Within ten (10) 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 22(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 to the United States' contact designated in Paragraph 26, below.
25. Within thirty (30) days of the effective date of this Agreement, Arlington-Mansfield Area YMCA will pay Ten Thousand Dollars ($10,000) to the Complainant.
26. Every twelve (12) months, for the duration of this Agreement, Arlington-Mansfield Area YMCA will provide the United States written monitoring reports that include activities described in Paragraphs 16-25. Upon request, Arlington-Mansfield Area YMCA will provide to the United States all documentation underlying or related to the reports of Arlington-Mansfield Area YMCA's compliance with this Agreement. Arlington-Mansfield Area YMCA shall send their written monitoring reports via electronic mail to the United States (to the attention of charlotte.lanvers@usdoj.gov or other person specified by the United States) or via Federal Express to:

    Disability Rights Section
    Civil Rights Division
    U.S. Department of Justice
    Charlotte Lanvers
    1425 New York Ave., NW
    Washington, DC 20005
    [DJ # 202-73-385]

27. If any issues arise that affect the anticipated completion dates set forth in Paragraphs 16-25, Arlington-Mansfield Area 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.

    OTHER PROVISIONS

28. In consideration for the Agreement set forth above, the United States will close its investigation of DJ # 202-73-385.
29. The United States may review Arlington-Mansfield Area 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.
30. Failure by the United States to enforce any provision in this Agreement is not a waiver of its right to enforce any provision of this Agreement.
31. 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 Arlington-Mansfield Area 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.
32. This Agreement is binding on Arlington-Mansfield Area YMCA, including all principals, agents, executors, administrators, representatives, employees, successors in interest, beneficiaries, and assignees. In the event that Arlington-Mansfield Area 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, Arlington-Mansfield Area 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.
33. The signatory for Arlington-Mansfield Area YMCA represents that he is authorized to bind Arlington-Mansfield Area YMCA to this Agreement.
34. This Agreement constitutes the entire agreement between the United States and Arlington-Mansfield Area 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.
35. Arlington-Mansfield Area YMCA shall not discriminate or retaliate against any person because of his or her participation in this matter.

    EFFECTIVE DATE/TERMINATION DATE

36. The effective date of this Agreement is the date of the last signature below.
37. The duration of this Agreement will be two (2) years from the effective date of this Agreement.