SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA AND
HENRICO POLICE ATHLETIC LEAGUE
U.S. DEPARTMENT OF JUSTICE DJ # 202-79-345 & 202-79-346

BACKGROUND

1. The Parties to this Settlement Agreement are the United States of America and Henrico Police Athletic League (“Henrico PAL”).
2. Henrico PAL provides childcare services and other programs for school-age children including, but not limited to, a summer camp program and an after school program.  Over 20,000 children have been enrolled in Henrico PAL’s programs since it was founded in 2007.
3. This matter was initiated by two complaints filed by the parents of two children with Type 1 diabetes (also known as insulin dependent diabetes) alleging that Henrico PAL refused to assist their children with certain aspects of their diabetes care, in violation of title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181 et seq., and its implementing regulation, 28 C.F.R. Part 36.  Specifically, one parent (“Parent 1”) alleged that her child (“Child 1”) was not permitted to enroll in Henrico PAL’s summer camp program, while the other parent (“Parent 2”) alleged that her child (“Child 2”) was forced to leave Henrico PAL’s after school program when the parents disclosed their children’s Type 1 Diabetes diagnosis and requested that Henrico PAL staff assist the children with aspects of their diabetes care.  Based on those complaints, the United States Attorney’s Office for the Eastern District of Virginia (the “United States”) opened an investigation to determine whether any violations of title III of the ADA had occurred.
4. The United States and Henrico PAL have reached an agreement that is in the parties’ best interests, and that the United States believes is in the public interest, to resolve this matter on mutually agreeable terms.  The parties have therefore voluntarily entered into this Settlement Agreement, as set forth below.
5. This Agreement applies to all programs operated by Henrico PAL at any location at which it operates.

Title III of the ADA

6. The United States, through the Attorney General, is responsible for enforcing title III of the ADA, 42 U.S.C. §§ 12181-12189, and the regulation implementing title III, 28 C.F.R. Part 36.
7. Ensuring that childcare providers (e.g., summer camps and before or after school programs) 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. 
8. 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.
9. Henrico PAL is a private nonprofit 501(c)(3) organization that owns, leases (or leases to), or operates places of public accommodation, including a place of education and/or a day care center, and as such, Henrico PAL is a public accommodation within the meaning of  title III of the ADA, 42 U.S.C. § 12181(7)(J & K); 28 C.F.R. § 36.104.
10. Children with Type 1 diabetes have 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, such children have a disability within the meaning of 42 U.S.C. § 12102; 28 C.F.R. § 36.105(a)(1)(i).
11. During the course of the investigation, the United States determined that Henrico PAL: (i) maintains admission criteria for its programs which tend to exclude children with Type 1 diabetes and (ii) refused to modify its policies, practices, or procedures by providing assistance or administer any type of diabetes care.  Henrico PAL disagrees with this determination and denies that it violated the ADA or any other law. Nothing in this Agreement is intended to, nor shall be interpreted to be, an admission of liability by Henrico PAL. 

Actions to Be Taken by Henrico PAL

12. Henrico PAL shall comply with the applicable requirements of title III of the ADA, 42 U.S.C. § 12182, and its implementing regulation, 28 C.F.R. Part 36. 
13. Henrico PAL shall not discriminate against an individual on the basis of disability in the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations.  42 U.S.C. §§ 12182(a); 28 C.F.R. §§ 36.201, 36.205.
14. Henrico PAL shall evaluate each request for reasonable modification from or related to an individual with a disability on an individualized basis, based on objective evidence and current medical standards, and in a manner consistent with the ADA and the terms of this Agreement.
15. Henrico PAL agrees that where a child’s parent or guardian and a child’s physician or other qualified health care professional deem it appropriate (based on the child’s current health status) for a layperson to provide diabetes care to a child that is a current or prospective enrollee in Henrico PAL’s programs, that training child care staff members to administer routine diabetes care is generally a reasonable modification under the ADA.  Reasonable modifications shall include, but are not limited to supervising, assisting with, and performing the following diabetes care tasks: blood glucose monitoring, ketone monitoring, treating low blood glucose, administering insulin by any method of delivery, administering glucagon, monitoring any other diabetes-related medical equipment; and permitting such children to eat and drink as required to address their diabetes management, while participating in any program, service or activity, unless Henrico PAL can demonstrate that making the modifications would fundamentally alter its goods, services, facilities, privileges, advantages, or accommodations.  See 42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302. 
16. Henrico PAL shall designate an ADA Administrator.  That individual shall be tasked with, among other things, reviewing and assisting Henrico PAL programs with responding to requests for reasonable modifications.  Henrico PAL’s ADA Administrator shall receive adequate training and resources to ensure that Henrico PAL adopts and implements all of the policies, procedures, and actions necessary to implement this Agreement.  Contact information for Henrico PAL’s ADA Administrator shall be publicized on Henrico PAL’s website and in any handbooks or application materials provided to parents of current or prospective enrollees.
17. Within forty-five (45) days of the Effective Date of this Agreement, Henrico PAL’s ADA Administrator will contact all parents who have requested a reasonable modification within the past year that Henrico PAL staff provide assistance with diabetes care, and whose request was denied.  Henrico PAL will initiate an interactive process to determine the reasonable modifications necessary to support an uninterrupted day of child care for such children, including the administration of insulin to children via a syringe or pen.  Henrico PAL shall maintain records regarding this process, as well as any denied reasonable modification requests during the Term of this Agreement. 
18. Policies and Procedures:  Within thirty (30) days of the Effective Date of this Agreement, Henrico PAL shall submit to the United States, for review and approval, written policies and procedures regarding Henrico PAL’s obligations under title III of the ADA, to be adopted and implemented at all Henrico PAL programs.  If approved, Henrico PAL shall adopt and implement the policies and procedures within fifteen (15) days of the United States’ approval.  If the United States does not approve the policies and procedures as drafted, Henrico PAL shall adopt all changes proposed by the United States that are consistent with the terms of this Agreement and the ADA.  Henrico PAL policies shall, at a minimum, include the following:
1. A Disability Nondiscrimination Policy that states: (i) Henrico PAL does not discriminate in the provision of services to children with disabilities, including children with diabetes, and (ii) Henrico PAL programs will make reasonable modifications for children with disabilities, including, but not limited to children with Type I diabetes, upon request from the child’s parent, unless such a request would rise to the level of a fundamental alteration to the nature of Henrico PAL’s  goods, services, facilities, privileges, advantages or accommodations.
2. Information for parents of children with disabilities, explaining how to request modifications to Henrico PAL’s policies, practices, and procedures with respect to child care services. This information shall be publicized on Henrico PAL’s website and its parent and employee handbooks, and disseminated with application materials provided to parents of prospective enrollees.
3. A sample Diabetes Medical Management Plan (DMMP) that is consistent with the National Diabetes Education Program’s Sample Diabetes Medical Management Plan: https://www.niddk.nih.gov/health-information/communication-programs/ndep/health-professionals/helping-student-diabetes-succeed-guide-school-personnel/tools-for-effective-diabetes-management.  A link to the sample DMMP shall be included on Henrico PAL’s website under the “Documents” tab and disseminated with application materials provided to parents of prospective enrollees with diabetes.
19. On receiving a request for a reasonable modification for a child with a disability, Henrico PAL shall conduct an individualized assessment of the child’s needs resulting from his/her disability.  This assessment shall include, where appropriate, initiating a discussion with the parent(s) and, at the request of parents and when necessary authorizations have been given, any professionals (such as educators or health care professionals) who work with children in other contexts to explore what reasonable modification(s) may be available.  Following the discussion, Henrico PAL may:
1. Grant the request;
2. Make a narrowly tailored request in writing for more information relating to the child’s necessary modifications(s); or
3. Deny the request, in whole or in part, where, consistent with this Agreement and the ADA, Henrico PAL can demonstrate that making the requested modification will result in a fundamental alteration, as defined in the ADA, its implementing regulations, and interpreting case law and agency guidance or that permitting the individual to participate in the requested program poses a “direct threat” to the health or safety of other individuals (as defined in Paragraph 26 below). 

Henrico PAL shall respond in writing to any individual making a request for reasonable modification within ten (10) business days from the date the request is received.  If a request for reasonable modification is denied per paragraph 19(c), Henrico PAL shall notify the child’s parent(s) in writing, of the specific reason(s) for the denial and advise the individual making the request that, if circumstances change, they may make a new request.  Copies of such denials, and related documents, must be maintained by Henrico PAL and provided to the United States in Henrico PAL’s annual report required by Paragraph 24 of this Agreement.

20. Publication/Dissemination of Disability Nondiscrimination Policy.  Within sixty (60) days of Henrico PAL’s implementation of its revised Disability Nondiscrimination Policy, Henrico PAL shall ensure that it is posted and easily accessible from the “About Us” pull down menu on the front page of the Henrico PAL web site.
21. Training for Managers.  Within ninety (90) days after the Effective Date of this Agreement and annually thereafter, Henrico PAL shall develop a live or virtual classroom training program (“ADA Managers Training”) that shall be provided to management personnel at each of its programs.  The ADA Managers Training shall be initiated and completed within ninety (90) days after the United States reviews and approves the training curriculum, as set forth in Section 21(d) below.
1. The ADA Managers Training shall address:
1. The requirements of title III of the ADA;
2. The existence and general content of this Agreement;
3. Henrico PAL’s nondiscrimination obligations under the ADA, including the obligations outlined in this Agreement; and
4. Diabetes and topics related to aspects of caring for a child with insulin dependent diabetes.
2. The ADA Managers Training shall be conducted by an individual or individuals with substantive knowledge of the ADA, and of diabetes.  The ADA Training shall be conducted live, via webinar, or via other interactive technology, and include a question and answer session prior to the conclusion of the Training.
3. For persons who must receive ADA Managers Training pursuant to this Agreement, but who did not receive training on a designated training date required under this Agreement (for instance, because they were on leave from Henrico PAL or because they began their affiliation with Henrico PAL subsequent to the training date), Henrico PAL shall provide the ADA Manager Training to such persons within ninety (90) days after the individual’s return or commencement of service to Henrico PAL;
4. Henrico PAL shall send, via electronic mail, to the United States the proposed curriculum for the training, as well as the trainer(s)’ name(s), qualifications (including resume(s)), and contact information, no later than ninety (90) calendar days after the entry of this Agreement.  If the United States requests revisions to the curriculum, Henrico PAL shall adopt any revisions to the curriculum that are consistent with this Agreement and the ADA that are provided by the United States.
5. Henrico PAL shall maintain attendance logs reflecting the names and titles of attendees of the ADA Manager Training.
22. Training for Teachers and Child Care Workers.  Within 30 days of the Effective Date of this Agreement, and annually thereafter, Henrico PAL shall provide training for its staff about Henrico PAL’s obligations under title III of the ADA, including but not limited to the obligation to provide reasonable modifications for children with disabilities.  This training shall also provide an overview of Henrico PAL’s obligations under this Agreement, and with respect to providing assistance to children with diabetes. 
23. Child-Specific Training.  In addition to the training required by paragraphs 21 and 22 of this Agreement, Henrico PAL shall ensure that, as necessary to individual circumstances, each of its programs, working with the parent(s), provides child and disability-specific training to appropriate employees where necessary to afford a child with a disability the full and equal enjoyment of the program.  For example, where a parent requests and is granted a reasonable modification regarding assistance with a child’s diabetes management, individualized training should be arranged by Henrico PAL, in consultation with the parent, and conducted by a qualified health professional (such as the child’s health care provider, or a local diabetes educator), on the tasks necessary to safely care for that child while at the Henrico PAL program, including the implementation of the child’s Diabetes Medical Management Plan (DMMP).  This training would typically include, among other things, training on blood sugar testing; administration of insulin through pen, syringe, or pump; administration of the emergency drug Glucagon; and a refresher on practicing universal precautions.
24. Annual Reporting.  For the Term of this Agreement, Henrico PAL shall submit a Report to the United States documenting its compliance with this Agreement every year on the anniversary of the Effective Date, except for the Final Report which shall be sixty days prior to that anniversary.  All Reports required pursuant to this Agreement shall be delivered to the undersigned counsel via electronic mail.
1. The Report shall include, for the relevant time period:
1. All dates of Henrico PAL’s ADA training conducted pursuant to this Agreement;
2. A certification by Henrico PAL that all required individuals have received training; and
3. All documents reflecting the basis for each decision, if any, to deny a request for assistance with diabetes care for an applicant or enrolled child at Henrico PAL, including all supporting documents. 
25.  Settlement Payments.
1. Henrico PAL agrees to pay Parent 2 (mother of Child 2) Five Thousand Dollars ($5,000) for alleged compensatory damages.  Within ten (10) business days of Henrico PAL’s receipt of an executed release from Parent 2 (release attached hereto as Attachment A), Henrico PAL shall forward to the United States a check in the appropriate sum and made payable to Parent 2.  This check is to compensate Parent 2 and Childe 2 pursuant to 42 U.S.C. § 12188(b)(2)(B), as a result the alleged discrimination suffered as described in paragraph 3.  The check shall be mailed to:

Financial Litigation Unit
United States Attorney’s Office for
Eastern District of Virginia
101 W. Main Street #8000
Norfolk, VA  23510

A copy of the check shall be sent to:


Steven Gordon
Assistant United States Attorney
2100 Jamieson Avenue
Alexandria, VA 22314

2. Henrico PAL agrees to provide Child 1 with tuition-free enrollment in Henrico PAL’s summer camp program for two (2) summers for alleged compensatory damages.  Within ten (10) business days of Henrico PAL’s receipt of an executed release from Parent 1 (release attached hereto as Attachment B), Henrico PAL shall send Parent 1 a letter documenting the fact that Child 1 is entitled to tuition-free enrollment in Henrico PAL’s summer camp program for two (2) summers and shall send a copy of the letter to Steven Gordon.  These in-kind services are to compensate Parent 1 and Child 1 pursuant to 42 U.S.C. § 12188(b)(2)(B), as a result the alleged discrimination suffered as described in paragraph 3. 
26. Nothing in this Agreement shall require Henrico PAL to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of such entity where such individual poses a direct threat to the health or safety of others. The term “direct threat” means 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. 42 U.S.C §12182(b)(3), 28 C.F.R. §36.208.  In determining whether an individual poses a direct threat to the health or safety of others, Henrico PAL must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: The nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk. 28 C.F.R. §36.208(b).

Implementation and Enforcement

27. Enforcement.  As consideration for the Agreement, except as provided in paragraph 28 below, the United States will not institute any action under the ADA based on the allegations in this matter, including but not limited to any alleged violations of the ADA occurring on or before the Effective Date with respect to diabetes-related claims asserted by Parent 1 and Parent 2 and behalf of Child 1 and Child 2 respectively as identified by the United States during its investigation.
28. Compliance Review and Enforcement.  The United States may review Henrico PAL’s compliance with this Agreement during the Term or title III of the ADA at any time.  If the United States believes that this Agreement or any portion of it has been violated during the Term, it will raise its concerns with Henrico PAL and the parties will attempt to resolve the concerns in good faith.  If the parties are unable to reach a satisfactory resolution of the issue(s) raised within thirty (30) days of the date that the United States provides notice to Henrico PAL, the United States may institute a civil action against Henrico PAL in the appropriate United States District Court to enforce this Agreement or title III of the ADA. 
29. Effective Date.  The Effective Date of this Agreement is the date of the last signature below.
30. Term.  The duration of this Agreement will be three (3) years from the Effective Date (the “Term”).
31. Entire Agreement.  This Agreement, including Attachment A, constitutes the entire agreement between the United States, and Henrico PAL on the matters raised herein and no other statement or promise written or oral, made by any party or agents of any party, are enforceable.
32. Non-Waiver.  Failure by the United States to enforce any provision of this Agreement shall not be construed as a waiver of its right to enforce any provision of the Agreement.
33. Severability.  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 Henrico PAL 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.
34. Binding Nature of Settlement Agreement.  This Agreement shall be binding upon Henrico PAL and its programs, successors, and assigns.  Moreover, Henrico PAL shall ensure that its agents and employees comply with this Agreement.
35. Authority.  The signatories represent that they have the authority to bind the respective parties identified below to the terms of this Agreement.
36. Enforcement.  Failure by any party to seek enforcement of this Agreement pursuant to its terms with respect to any instance or provision shall not be construed as a waiver to such enforcement with regard to other instances or provisions.
37. Other Violations.  This Agreement is not intended to remedy any other potential violations of the ADA or any other law. 
38. Continuing Responsibility.  This Agreement does not affect Henrico PAL’s continuing responsibility to comply with all aspects of the ADA.
39. Execution of the Agreement.  This Agreement may be executed in counterparts, each of which constitutes an original and all of which constitute one and the same Agreement. Electronically transmitted signatures shall constitute acceptable, binding signatures for purposes of this Agreement.