Press Release

SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA AND
LIL' EINSTEIN'S LEARNING ACADEMY
DJ NO. 202-15-83

I. BACKGROUND

1. This Settlement Agreement is entered into by the United States of America and Excel Education & Day Care LLC d/b/a Lil’ Einstein’s Learning Academy (LELA). 
2. LELA provides early education, child care, and before- and after-school care services to children between the ages of six weeks and twelve years.  LELA is incorporated in and has its principal place of business in Delaware.  There are four LELA locations in Bear and Newark, DE and Chesapeake City and Elkton, MD.  Each operate under the same individual owner, Executive Director, and operational policies and procedures.
3. This matter is based upon a complaint filed with the United States Department of Justice alleging that LELA’s Bear location discriminated against an individual with a disability in violation of title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181–12189.  The complainants’ daughter was diagnosed with type 1 diabetes while enrolled at LELA.  After her diagnosis, her daughter used a continuous glucose monitor (CGM) and insulin pump.  LELA refused to administer insulin to their daughter through the pump,¹ refused to permit their daughter’s personal, licensed nurse to accompany her at the day care to provide the needed diabetes care,² and disenrolled their daughter on the basis of her disability. 
4. The United States and LELA agree that it is in the Parties’ best interests, and the United States believes it is in the public interest, to fully and finally resolve this matter without litigation.  The Parties have therefore voluntarily entered into this Agreement, agreeing as follows:

II. TITLE III COVERAGE

5. 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.
6. The 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; 28 C.F.R. § 36.105.  The complainants, as parents of a child with a disability, are also protected under title III.   42 U.S.C. § 12182(b)(1)(E); 28 C.F.R. § 36.205.
7. LELA is a private entity whose operations affect commerce within the meaning of 42 U.S.C. § 12181(6); and LELA is a place of public accommodation within the meaning of 42 U.S.C. § 12181(7), because it is a day care center.  See also 28 C.F.R. § 36.104.  LELA is thus a public accommodation subject to the requirements of title III of the ADA.  28 C.F.R. § 36.104.
8. Title III of 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, a public accommodation shall make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such 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.  Title III also prohibits public accommodations from excluding or otherwise denying equal goods, services, facilities, privileges, advantages, accommodations, or other opportunities to an individual because of the known disability of an individual with whom the individual is known to have a relationship or association.  42 U.S.C. § 12182(b)(1)(E); 28 C.F.R. § 36.205. 
9. LELA agrees that, 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 licensed nurse or a non-nurse (based on objective medical data as to the current health status of the individual child), allowing the nurse or a trained layperson to do so would be a reasonable modification under the ADA, unless LELA demonstrates that this would constitute a fundamental alteration to LELA’s goods, services, facilities, privileges, advantages, or accommodations.  See 42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302.  This obligation includes training child care staff to assist with routine diabetes care tasks, such as monitoring a continuous glucose monitor, administering Glucagon in emergency situations, and administrating insulin by pen, syringe, or pump.
10. Ensuring that child care 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).
11. The United States has determined that LELA discriminated against the complainants and their daughter by denying her, on the basis of disability, the opportunity to participate in or benefit from its goods, services, facilities, privileges, advantages, or accommodations, in violation of 42 U.S.C. § 12182 and 28 C.F.R. § 36.201.  LELA discriminated against the complainants and their daughter by failing to make reasonable modifications to its policies, practices, or procedures which were necessary to afford her an opportunity to participate in and benefit from its goods, services, facilities, privileges, advantages, and accommodations, forcing the complainants to disenroll their daughter from the day care program.  See 42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302. 

III. INJUNCTIVE RELIEF

12. Effective immediately, LELA: (1) will not discriminate against any individual on the basis of disability, including diabetes, 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; and (2) will make reasonable modifications to policies, practices, and procedures when such modifications are necessary to afford access to LELA’s 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.
13. Within thirty (30) days of the effective date of this Agreement, LELA shall designate one individual who shall have responsibility for monitoring compliance with this Agreement, including ensuring that LELA adopts and implements the policies and procedures set forth in Paragraph 14.  LELA will provide the designated individual with sufficient authority and resources to perform the tasks required by this Agreement, including review of all reasonable modification requests and any decisions to exclude from enrollment or disenroll a child with a disability.  The designated individual will maintain records regarding his or her review of all reasonable modification requests and all decisions to exclude a child with a disability from enrollment or disenroll a child with a disability.  The contact information for the designated individual shall be publicized in the parent handbook and on LELA’s website, https://www.lelaonline.com/, and disseminated with application materials provided to parents or guardians of prospective enrollees.  As set forth in Paragraph 16, LELA shall submit a written report to the United States that documents the designated individual’s reviews and decisions.
14. Within sixty (60) days of the effective date of this Agreement, LELA shall submit to the United States, for review and approval, written policies and procedures regarding LELA’s obligations under title III of the ADA.  LELA will adopt and implement the revised policies and procedures, including ensuring that all four LELA locations adopt substantively similar revised policies or procedures, within thirty (30) days of the United States’ approval, which approval will not be unreasonably withheld, by including all revised policies and procedures on LELA’s website at https://www.lelaonline.com/ and in employee and parent handbooks.  LELA’s policies and procedures shall, at a minimum, include the following:
1. A nondiscrimination policy that states that LELA does not discriminate in the provision of services to persons with disabilities, including children with diabetes, and their parents or guardians, in all LELA programs. 
2. A revised reasonable modifications policy which requires that:
1. LELA will make reasonable modifications for children with disabilities, including children with diabetes, and their parents or guardians, unless such requested modifications amount to a fundamental alteration to LELA’s program.  LELA 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. 
2. LELA will provide diabetes care (including blood glucose monitoring, providing food or drink when blood glucose levels are low, and administering insulin or Glucagon) where a parent or guardian and the child’s physician or other qualified health care professional deem it appropriate for the child to be assisted in diabetes care by lay LELA staff, including a non-nurse, unless LELA demonstrates that this would constitute a fundamental alteration to LELA’s goods, services, facilities, privileges, advantages, or accommodations.
3. LELA will permit a licensed nurse to accompany a child and provide diabetes care if the child’s parents, guardians, physician, or other qualified health care professional determine that the child requires insulin administration from a nurse, unless LELA demonstrates that this would constitute a fundamental alteration to LELA’s goods, services, facilities, privileges, advantages, or accommodations.
4. Upon receiving a request for a modification, LELA 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 appropriate pursuant to the ADA.  
5. LELA will provide a response to a request for a reasonable modification in writing, within fourteen (14) days from the date the request is received.  LELA 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, LELA will document each reason for the denial of the request and shall submit the documentation to the individual designated pursuant to Paragraph 13 for review.  LELA shall notify the child’s parent(s) or guardian(s), in writing, of the reason(s) for the denial.
6. Within seven (7) business days of a decision to deny admission to a child with a disability (where LELA knew that the child had a disability) or to deny a requested modification of polices, practices or procedures based on a child’s disability, the individual designated pursuant to Paragraph 13 must provide to the United States the documents related to the decision and all reasons underlying the decision.  This information should be sent by e-mail or overnight mail to the address specified in Paragraph 16.
3. A sample Diabetes Medical Management Plan (DMMP) that is consistent with the National Diabetes Education Program’s Sample Diabetes Medical Management Plan: http://www.diabetes.org/assets/pdfs/advocacy/safe-at-school/childcare-dmmp.pdf.
4. Information for parents or guardians of children with disabilities, explaining how to request reasonable modifications to LELA’s policies, practices, and procedures with respect to child care services.  
15. Within forty-five (45) days from the date upon which LELA adopts the policies and procedures set forth in Paragraph 14, LELA will provide live training on the nondiscrimination requirements of title III of the ADA to any employees with responsibility for considering and providing requests for reasonable modification of applicants and enrollees and/or terminating enrollment.  Training materials shall include training on diabetes management, considering requests for reasonable modifications, and providing reasonable modifications to enrolled children.  LELA must obtain the United States’ approval of the trainer and the materials to be used in the training.
1. 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.  
2. For the duration of this Agreement, LELA 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, considering requests for reasonable modifications, and providing reasonable modifications to enrolled children. 
3. LELA may tape the initial training to use for employees hired after the initial training and for refresher trainings. 
4. LELA will create and maintain an attendance log that documents the name of each individual who attends the trainings required in this Paragraph, his or her title, and the date he or she attended the training.  LELA shall provide copies of the attendance sheets to the United States in its monitoring reports as required by paragraph 16. 
16. Three (3) months following the effective date of this Agreement, and every six (6) months thereafter, for the duration of this Agreement, LELA will provide the United States written monitoring reports that include activities described in Paragraphs 12-15.  LELA shall send its written monitoring reports via electronic mail to the United States (to the attention of charlotte.lanvers@usdoj.gov and christine.kim@usdoj.gov or another person specified by the United States) or via overnight mail to:

    Disability Rights Section 
    Civil Rights Division 
    U.S. Department of Justice
    Charlotte Lanvers
    950 Pennsylvania Avenue, NW
    Washington, DC  20005
    [DJ # 202-15-83]

IV. MONETARY RELIEF & CIVIL PENALTY

17. Within thirty (30) days of the effective date of this Agreement or the date the complainants provide LELA with an IRS Form W-9 and signed copies of Appendix A, whichever is later, LELA will pay $25,000 to the complainants to compensate them for the harm they and their child have endured as a result of LELA’s failure to provide reasonable modifications resulting in the termination of their child’s enrollment.  LELA will issue an IRS Form 1099 to complainants for their payments.  LELA shall provide written notification to counsel for the United States, including a copy of the check, when it has completed the actions described in this Paragraph.
18. LELA shall issue a check or money order in the amount of $2,500, payable to the United States Treasury, as a civil penalty to vindicate the public interest, pursuant to 42 U.S.C. § 12188(b)(2)(C) and 28 C.F.R. § 36.504(a)(3).  The payment shall be in the form of an electronic funds transfer pursuant to written instructions to be provided by the United States.

V. MISCELLANEOUS PROVISIONS

19. The effective date of this Agreement is the date of the last signature below.
20. The duration of this Agreement will be two (2) years from the effective date.
21. In consideration of this Agreement, the United States agrees to close its investigation (DJ No. 202-15-83) without further enforcement action, except as provided in Paragraphs 22–23 of this Agreement. The Parties agree and acknowledge that this consideration is adequate and sufficient.
22. The United States may review compliance with this Agreement at any time. LELA 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 LELA 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 LELA 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 sixty (60) calendar days of the date the United States notifies LELA, 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.  
23. Any time limits for performance imposed by this Agreement may be extended only by the mutual written consent of the Parties.  With regard to any of the deadlines specified in this Agreement, LELA shall notify the United States at least ten (10) business days before any deadline of an anticipated inability to meet the deadline and the reason(s) why, and shall request an extension of time to a specific date.  The United States shall not unreasonably withhold consent to a request for an extension of time made in good faith.  A failure to comply with deadlines agreed upon in this Agreement constitutes a violation of this Agreement, and 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.  
24. 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 provisions of the Agreement.
25. 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.
26. The individuals signing this Agreement represent that they are authorized to do so on behalf of the respective entity for which they have signed.
27. This Agreement will have no impact upon the rights or claims of any individual not identified in this Agreement who has made, or may make, claims against LELA for issues discussed herein.  This Agreement is limited to resolving claims under title III of the ADA related to the facts specifically set forth in Paragraphs 1 through 3.  Nothing in this Agreement relates to other provisions of the ADA or affects LELA’s obligations to comply with any other federal, state, or local statutory, administrative, regulatory, or common law obligation, including those relating to nondiscrimination against individuals with disabilities.  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.
28. This Agreement, including Appendix A, constitutes the entire agreement between the United States and LELA on the matters raised herein and no other statement or promise written or oral, made by any party or agents of any party, that is not contained in this written Agreement, including its Appendix, shall be enforceable.
29. This Agreement and any amendment hereto shall be public documents.   A copy of this Agreement or any information contained herein may be made available to any person, and LELA shall provide a copy of this Agreement to any person upon request.
30. This Agreement shall be binding upon LELA, its agents, employees, successors, and assigns.  If LELA acquires a new facility during the term of this Agreement, LELA shall immediately take steps to implement the requirements of this Agreement with respect to that facility. 
31. This Agreement does not affect LELA’s continuing responsibility to comply with all aspects of the ADA.
    

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