SETTLEMENT AGREEMENT BETWEEN

THE UNITED STATES OF AMERICA
AND

HOSPITAL FOR SPECIAL CARE, NEW BRITAIN, CONNECTICUT

UNDER THE AMERICANS WITH DISABILITIES ACT

DJ # 202-14-147

  1. The Parties to this Settlement Agreement (“Agreement”) are the United States of America (“United States“) and Hospital for Special Care located in New Britain, Connecticut (“Hospital”).
  2. The United States is authorized to investigate alleged violations of Title III of the Americans with Disabilities Act (“ADA”), and to bring a civil action in federal court if the United States is unable to secure voluntary compliance. 42 U.S.C. § 12188(a)(2) and 12188(b).
  3. This matter began with a complaint filed with the United States Attorney’s Office, against the Hospital, alleging violations of Title III of the ADA, 42 U.S.C. §§ 12181-12189. The Hospital is a place of public accommodation covered by title III of the ADA.
  4. Title III of the ADA provides that no individual shall be discriminated against 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 by any person who owns, leases, or operates a place of public accommodation. 42 U.S.C. § 12182(a).  Under title III of the ADA, a covered entity must make reasonable modifications to their policies, practices, and procedures when necessary to avoid discrimination on the basis of disability, unless the entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity. 
  5. Complainants are an employee of the Hospital and her husband. The Hospital provides and administers a summer camp program for children, known as Vacation Ventures Kids Camp (hereinafter “Summer Camp”).  The Summer Camp is generally scheduled for eight weeks in the summer. Camp activities include games, sports, crafts, swimming and field trips. 
  6. The complaint alleged that the Hospital discriminated on the basis of disability against the Complainants’ son, who has Type I diabetes, by refusing to reasonably modify its policies, practices, or procedures so that he could participate in the Hospital’s Summer Camp during 2013.  28 C.F.R. § 35.130(b)(7). It was also alleged that the Hospital subjected the Complainants, who are known to have a relationship or association with a person with a disability, to discrimination by denying Complainants equal access to programs that were offered to parents of children without disabilities. 28 C.F.R. § 35.130(g).  It was further alleged that, due to the discrimination by the Hospital, Complainant mother, who is an employee of Hospital, was compelled to use family and medical leave to care for her son who has Type I diabetes during the period he was not admitted to the Hospital’s Summer Camp.
  7. In response to these allegations, the Hospital denied that it discriminated against the Complainants and their son on the basis of disability. The Hospital additionally trained its staff during July 2013 in how to accommodate a child with insulin-dependent diabetes and sought and obtained a waiver of certain state law requirements regarding the administration of insulin and glucagon. Complainant’s son was able to attend the last two-week session of the Hospital’s Summer Camp program beginning August 5, 2013. 
  8. Due to the need for space to accommodate expansion of certain of its clinical services, the Hospital has determined it will no longer operate the Summer Camp.
  9. The Parties now desire to resolve the remaining claims made in the complaint, including all matters in controversy between them which were, or could have been, asserted in the complaint, consistent with this agreement and without the burden of further expense and resources.  The promises, obligations, or other terms and conditions set forth in this Agreement constitute the exchange of valuable consideration between the United States and the Hospital.
  10. The Hospital’s participation in this Settlement Agreement shall not constitute or be construed as an admission of liability.  The Hospital expressly denies that it has violated any law, engaged in any practice of discrimination or denied equal opportunity to individuals with disabilities or those associated with such individuals.  
  11. In consideration of the terms of this Settlement Agreement, the United States agrees to refrain from undertaking further action in this case, except as provided in Paragraph R.
  12. Consistent with the ADA, the Hospital will not discriminate against any individual on the basis of disability, including those with Type I diabetes, in the full and equal enjoyment of its services, programs or activities, including by refusing or failing to making reasonable modifications in its services, programs or activities, whenever necessary to avoid discrimination. Within twenty (20) days of the effective date of this Agreement, the Hospital will include on its website (http://www.hfsc.org) a statement of this policy in the form attached hereto as Exhibit 1.
  13. If the Hospital resumes operation of the Summer Camp, or a program similar to the Summer Camp, during the term of this Agreement, it will adopt, maintain, and enforce the policy attached hereto, and by reference incorporated herein, as Exhibit 2 to this Agreement on prohibition of discrimination on the basis of disability, and it will post a copy of the policy in a conspicuous area of the Hospital where its employees and members of the public can readily read the policy and a statement of the policy on its website (http://www.hfsc.org).
  14. On or before the start of any Summer Camp or successor Summer Camp program, the Hospital shall provide mandatory training on the ADA and its prohibition on discrimination on the basis of disability for all employees who work with or in the Summer Camp. During the term of this Agreement, the trainer and curriculum for such training shall be subject to approval by the United States, which approval shall not be unreasonably withheld.  In addition, the Hospital shall not refuse to accommodate any child with a disability merely because it would require the Hospital to seek and obtain a waiver from the State of Connecticut Department of Public Health for the provision or injection of any medications (including but not limited to insulin and glucagon) for which the State of Connecticut requires such a waiver with respect to any employee/staff member of the Summer Camp who is not a licensed health care provider. 
  15. For any Summer Camp or successor Summer Camp program that the Hospital may resume during the term of this Agreement, when necessary to accommodate a child with a disability who requires the injection of insulin, glucagon or any other medication specifically falling under the State of Connecticut Department of Public Health’s waiver requirement, before the start of each summer, the Hospital shall use its best efforts to seek such a waiver with the Connecticut Department of Public Health for the provision of certain medications by its Summer Camp employees and staff who are not licensed health care providers.
  16. As consideration for the parties’ mutual agreement to be bound by the terms of this Agreement, and whereas the parties desire to settle all matters in controversy between them, the Hospital  agrees to restore the Complainant’s family and medical leave balance to its prior balance on the day prior to the start of Summer Camp 2013. Within thirty (30) days of the effective date of this Agreement, (counsel for) the Hospital will send a copy of this Agreement and Exhibits 2 and 3, hereto attached, to the Complainant by hand-delivery, certified mail, return receipt requested, by Federal Express, or by other means sufficient to ensure delivery.  The Complainant must return an executed Release of All Claims, Exhibit 3, to (counsel for) the Hospital within thirty (30) days of receipt of said documents.  The Hospital will send the undersigned counsel for the United States a copy of Exhibits 2 and 3 when they are sent to the Complainants.
  17. Within thirty (30) days of receipt of the signed Release of All Claims, the Hospital will restore Complainant’s family and medical leave balance to its balance prior to the start date of the Hospital’s Summer Camp program in 2013.  The Hospital will provide to the United States a copy of the signed Exhibits 2 and 3 and also documentation showing the restoration of Complainant’s leave balance.
  18. The United States may review compliance with this Agreement at any time.  If the United States believes that the Hospital 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 the Hospital in writing and the Parties 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 the Hospital, it may institute a civil action in federal district court to enforce the terms of this Agreement or the requirements of title III of the ADA.
  19. Failure by the United States to enforce this Agreement with respect to any deadline or other provision herein will not be construed as a waiver of the United States’ right to enforce other deadlines and provisions of this Agreement.
  20. A copy of this document or any information contained in it will be made available to any person on request by the Hospital or the United States.
  21. This Agreement constitutes the entire agreement between the Parties on 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 (including its Attachments, which are hereby incorporated by reference), will be enforceable.  This Agreement does not purport to remedy any other potential violations of the ADA or any other federal law.  This Agreement does not affect the Hospital’s continuing responsibility to comply with all aspects of the ADA.
  22. This Agreement shall be binding on the Hospital, its agents and employees.
  23. This Agreement will remain in effect for three (3) years following the effective date of this agreement (Term).  Notwithstanding the Term of this Agreement, the Hospital acknowledges it will comply with Title III.
  24. The effective date of this Agreement is the date of the last signature below.

FOR HOSPITAL FOR
SPECIAL CARE

/s/ Lynn Ricci
LYNN RICCI, SENIOR VICE
PRESIDENT & CHIEF OPERATING OFFICER

 

Dated:May 21, 2014

FOR THE UNITED STATES OF
AMERICA:

DEIRDRE M. DALY
UNITED STATES ATTORNEY

/s/ Lisa E. Perkins
LISA E. PERKINS
Assistant United States Attorney
450 Main Street, Room 328
Hartford, CT  06103
Tel: (860) 947-1101
Fax: (860) 760-7979
lisa.perkins@usdoj.gov

Dated: May 27, 2014

 



EXHIBIT 1

POLICY ON PROHIBITION OF DISCRIMINATION ON THE BASIS OF DISABILITY

Hospital for Special Care (“Hospital”) is committed to making its programs and activities available on a nondiscriminatory basis as required under Title III of the Americans with Disabilities Act (ADA).  The Hospital will not discriminate against any individual on the basis of disability, including a child with diabetes, with regard to the full and equal enjoyment of its programs, services and activities and will make reasonable modifications for children with diabetes, on a case by case basis, to permit them to participate in its other programs, services, or activities, unless the Hospital can demonstrate that making the modifications would fundamentally alter the nature of its programs, services or activities.



EXHIBIT 2

POLICY ON PROHIBITION OF DISCRIMINATION ON THE BASIS OF DISABILITY

Hospital for Special Care (“Hospital”) is committed to making its programs and activities available on a nondiscriminatory basis as required under Title III of the Americans with Disabilities Act (ADA).  The Hospital will not discriminate against any individual on the basis of disability, including a child with diabetes, with regard to the full and equal enjoyment of its programs, services and activities, including but not limited to participation in Vacation Ventures Kids Camp, or a successor camp, (“Summer Camp”). The Summer Camp and other programs will make reasonable modifications for children with diabetes, both applicants and those already enrolled, on a case by case basis, to permit them to participate in Summer Camp and other programs, services, or activities, unless the Hospital can demonstrate that making the modifications would fundamentally alter the nature of its programs, services or activities.

The Hospital recognizes that children with insulin-dependent diabetes who participate in Summer Camp may require assistance with diabetes management.  The management regime of every child with diabetes may be different and therefore one policy cannot dictate the particular protocol for all individuals.  

Individualized Assessment and Reasonable Modification

The Hospital will provide this Policy; the procedure to request reasonable modification; a Diabetes Management Plan Form (Attachment A); and a Physical Examination Form (Attachment B), on the Hospital website (www.hfsc.org). When informed that a child with diabetes has applied to a particular session of the Summer Camp, the Hospital will provide the parent/guardian of such child notice of this Policy.  The Hospital will provide a written copy of the Policy, including the attachments, upon request. 

Absent extenuating circumstances, within 8 weeks prior to the first day of each camp session, the Hospital will individually assess the needs of each child with diabetes on a case-by-case basis and work with families to provide reasonable modifications in accordance with this Policy and applicable laws.  To this end, the Hospital will assess the level of assistance or supervision that is reasonable and provide assistance that is appropriate and consistent with the Diabetes Management Plan (Attachment A).  The Hospital may request additional information or guidance from the child’s healthcare provider or parent/guardians as necessary.  

If an agreement cannot be reached for the Hospital to provide reasonable modifications, the Hospital will notify the parent/guardian of its final determination. The determination will document which modifications the Hospital will provide and which modifications it will not provide, demonstrating that the modification not provided would fundamentally alter the nature of its service, program, or activity.

Reasonable modifications shall include, but are not limited to (1) seeking a waiver from the State of Connecticut Department of Public Health to allow staff and employees who are not licensed health care providers (as that term is defined and understood by DPH) to administer insulin, glucagon or other medications for which the state DPH requires a waiver; and (2) supervising, monitoring and assisting children with diabetes while using blood glucose monitoring tests, insulin pumps, syringes, and other diabetes-related medical equipment; and permitting such children to eat and drink as required to address their diabetic management, while participating in any program, service or activity sponsored by the Hospital.

Notwithstanding the foregoing, in all cases the Hospital will allow the parent/guardian or authorized agent to enter the Summer Camp’s premises to monitor the child's blood glucose levels and take appropriate action in response to those levels. The Summer Camp staff will also allow the child to monitor his or her own blood glucose levels and take appropriate action, when the parent/guardian has authorized the Hospital to do so.

If the child self-identifies, or staff recognizes symptoms of hyperglycemia or hypoglycemia, the Summer Camp staff will assist the child to check blood sugar and treat the symptoms, and take steps reasonably consistent with the Diabetes Management Plan.

Training

If a child with diabetes applies for any session or program, the Hospital will arrange for a qualified healthcare professional to provide training that enables the Summer Camp to provide all care required to comply with applicable law to any staff who may be responsible for or may be working directly with a camper with diabetes.  The training will include an overview of diabetes, general information on how to recognize signs and symptoms of hypoglycemia and hyperglycemia, how to get help quickly, and diabetic care practices related to glucose monitoring and regulating glucagon and insulin administration, including by insulin pump.

In addition, at the request of the parent or guardian of a child with diabetes, the Hospital will arrange for training of appropriate staff regarding the particular needs of the child as identified in the child’s Diabetes Management Plan. This child-specific training may be given by the parent or guardian, or by a qualified person agreed upon by the parents.

Parent's/Guardian's Responsibilities:

Within 30 business days prior to the beginning of any session or program, the parent/guardian of a child with diabetes will provide the Summer Camp with the following:

(1) a completed Diabetes Management Form, legible and in easy to understand terms, detailing any and all care necessary for the child's management, which is signed by the child's health care provider and signed by the child's parent/guardian to permit the Summer Camp to undertake steps indicated on the Diabetes Management Form (Appendix A),
(2) a completed Physical Exam Form and any other health-related documents deemed relevant by the child's medical provider (Appendix B), and
(3) a signed general release, if applicable.

For children currently attending a camp program who would require diabetes management for the first time during any session, the parent/guardian must immediately submit the completed Diabetes Management Plan as set forth above, and comply with the remaining aspects of this Policy with sufficient time to allow the Hospital to make good faith efforts for continuation of the camp program consistent with this Policy.

The parent/guardian will be available at the Hospital’s request to attend and participate on the first day of a camp session with the child and, if deemed necessary by either party, to attend a run-through prior to the first day, and to continue to meet with and advise the staff working with the child about proper diabetes care.  The parent/guardian or other emergency contacts (which may include the child’s health care provider) will be available by phone each day that the child participates in a camp session.

The parent/guardian will provide specific information and training about the child's diabetes and particular needs related to diabetes care to the Hospital and will permit the child's personal health care providers to share information with staff and other health care personnel to assure the child's safety and compliance with the child's Diabetes Management Plan.  The parent/guardian will promptly inform the Hospital of relevant changes in the child's health status.

The parent/guardian will provide, along with instructions about proper maintenance or use of all items, all supplies and equipment necessary for the child's safe participation in all activities.  The parent/guardian will provide and properly maintain all supplies and equipment for the child's diabetes and assist with proper disposal of equipment and supplies.  Children may carry their own medical supplies and snacks in a safe fashion that meets local code or safety standards for the care and disposal of medical supplies so that these supplies are in close proximity to the child.  When the child cannot hold these supplies, the supplies will be held at the administrative office or health office, or by a staff member.

As applicable, the parent/guardian will furnish meals and snacks not regularly provided by the Hospital that are necessary to meet the child's needs.  The parent/guardian will also ensure that the carbohydrate content falls within the proper amounts set forth in the Diabetes Management Plan so that the totals will be predetermined and calculated by the parent/guardian. Carbohydrate values will be calculated and provided on labels on each food item provided by the parent/guardian so that the staff or qualified health care professional may monitor the appropriate use of insulin and insulin pumps or other equipment to administer insulin.

The parent/guardian will check the child's blood sugar levels each morning before the child arrives at camp to ensure they are within the established "target range" in the child's Diabetes Management Plan. If you have any questions about this Policy, please contact the Director of the Summer Camp.

 

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June 6, 2014