SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND NEXTGEN CHILDCARE CENTER, LLC.

1. BACKGROUND
1. The parties to this Settlement Agreement (“Agreement”) are the United States of America and NexGen Childcare Center, LLC (“NexGen”), a professional corporation with its principal place of business in Stallings, North Carolina.  NexGen owns and operates a childcare facility in Stallings, North Carolina.
2. This matter was initiated by a complaint filed with the United States Department of Justice (“DOJ”) against NexGen under Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181-12189.  The United States is authorized to investigate alleged violations of Title III of the ADA. Moreover, the United States is authorized, where appropriate, to use alternative means of dispute resolution, including settlement negotiations to resolve disputes. If resolution is not achieved, the United States may bring a civil action in federal court in any case where the Attorney General has reasonable cause to believe that a pattern or practice of discrimination exists or where the case raises an issue of general public importance. 42 U.S.C. §§ 12188(b), 12212; 28 C.F.R. §§ 36.502, 36.503, 36.506.
3. NexGen operates a preschool and daycare that provides child care services for infants, toddlers, and school age children.  NexGen provides personal services, including diapering and toileting assistance, for younger children.  Once children are generally at least three years of age, they typically attend class in the “Prepper Two” classroom, where children are not diapered or assisted with diapering.  In early 2018, NexGen accepted the Complainant’s son (“the Child”) into its Prepper Two classroom.  The parties dispute whether prior to enrollment, the Child’s parents communicated that the Child was not toilet-trained.  After enrollment, the Child had problems toileting and was eventually diagnosed with encopresis, a condition that causes involuntary defecation in children who are past the age of toilet training.  Complainant alleges that she provided NexGen with a doctor’s note stating that the Child should be allowed to use pull-ups for a “medical issue.” The Complainant was given options to place the Child in a classroom with younger children who were not toilet trained, toilet train the child within approximately two weeks, or remove him from the school.  Ultimately, NexGen and the Child’s parents failed to reach a mutually acceptable resolution regarding the Child’s situation, and the parents removed the Child from NexGen’s childcare facility.
4. Complainant alleges that NexGen denied participation in its goods, services, facilities, privileges, advantages, or accommodations, and did not afford equal goods, services, facilities, privileges, advantages, or accommodations to the Complainant’s son, on the basis of her son’s disability.  NexGen denies the Complainant’s allegations.
5. The parties agree that it is in their best interests, and the United States believes that it is in the public interest, to resolve this dispute without engaging in protracted litigation.  The parties have therefore voluntarily entered into this Agreement, agreeing as follows: 
2. TITLE III COVERAGES
6. 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.
7. The child is a person with a disability.  He has encopresis, a physical impairment that substantially impacts the operation of a major bodily function, including the digestive or gastro-intestinal systems of the body.  42 U.S.C. §§ 12102(1), 28 C.F.R. § 36.105(c)(1)(ii). The Complainant is a person associated with a person with a disability within the meaning of 42 U.S.C. § 12182(B)(1)(E) and 28 C.F.R. § 36.205.
8. NexGen is a private entity within the meaning of 42 U.S.C. § 12181(6) and its facility is a place of public accommodation within the meaning of 42 U.S.C. § 12181(7)(K) because it is a day care center.  See also 28 C.F.R. § 36.104.  NexGen’s facility is therefore a public accommodation subject to Title III of the ADA.  42 U.S.C. § 12182(a); 28 C.F.R. § 36.104.
9. Title III of the ADA prohibits a public accommodation from discriminating against individuals on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages and accommodations of a place of public accommodation.  42 U.S.C. §12182(a); 28 C.F.R. § 36.201(a).  Specifically, a public accommodation shall make reasonable modifications in policies, practices, or procedures when necessary to afford its goods, services, facilities, privileges, advantages, or accommodations to an individual with a disability, unless the public accommodation can demonstrate that making the reasonable modifications is a fundamental alteration to the nature of its goods and services.  42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.202.  Title III also prohibits public accommodations from excluding or otherwise denying equal goods, services, 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.
10. As a result of its investigation, the United States has determined, and NexGen denies, that NexGen discriminated against both the Complainant and the Child 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.  See also 28 C.F.R. §§ 36.201, 36.205.  The United States has determined, and NexGen denies, that NexGen discriminated against the Child by failing to make reasonable modifications and did not demonstrate that reasonable modifications would be a fundamental alteration.  42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302.
3. INJUNCTIVE RELIEF
11. Effective immediately, NexGen: (1) will not discriminate against any individual on the basis of disability, including encopresis, 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 NexGen’s goods, services, facilities, privileges, advantages, or accommodations to individuals with disability unless it demonstrates that the requested modifications would fundamentally alter the nature of its goods, services, or facilities.
12. Within thirty (30) days of the Effective Date (as defined by Para. 15, below) of this Agreement, NexGen will add a statement to its current Non-Discrimination Policy that states: “At all facilities where diaper changing or toileting assistance is provided, we will provide toileting assistance, including diaper changing, for a child with a disability where such assistance is necessary because of disability, unless such a modification would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations we provide.”
13. Within sixty (60) days of the effective date of this Agreement, NexGen shall:
    1. Adopt a nondiscrimination policy that states that NexGen does not discriminate on the basis of disability.  The nondiscrimination policy shall either be set forth in the Parent Handbook or included in a facility-specific addendum to such handbook.
    2. Modify its policies, practices, and procedures, including modifying the Parent Handbook or adding a facility-specific addendum to such handbook (specifically to the sections entitled “Children With Special Needs” and “Children with Special Healthcare Needs”), to include a process for considering reasonable modifications on the basis of disability.  The revised reasonable modifications policy requires that:
       1. NexGen will make reasonable modifications for children with disabilities, and their parents or guardians, unless such requested modifications amount to a fundamental alteration to NexGen’s program.  NexGen 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. Upon receiving a request for modification, NexGen 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.
       3. NexGen will provide a response to a request for a reasonable modification in writing, within fourteen (14) days from the date the request is received.  NexGen may:
          1. Grant the request;
          2. Make a narrowly tailored request for medical documentation relating to the child’s disability and any necessary modification(s); or,
          3. Deny the request.  If a request for modification is denied, NexGen will document each reason for the denial of the request and shall submit the documentation to the individual designated in Paragraph 13(c) for review.  NexGen shall notify the child’s parent(s) or guardian(s), in writing, of the reason(s) for the denial.
       4. For the duration of this Agreement, within seven (7) business days of a decision to deny admission to a child with a disability (where NexGen knew that the child had a disability) or to deny a requested modification of policies, practices, or procedures based on a child’s disability, the individual designated in Paragraph 13(c) 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 for counsel for the United States as indicated on the signature pages of this Agreement.
    3. Designate one individual responsible for monitoring compliance with this Agreement, including ensuring that NexGen adopts and implements the policies and procedures set forth in this Paragraph.  NexGen 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. 
14. Within forty-five (45) days from the date upon which NexGen adopts the policies and procedures set forth in Paragraph 13, NexGen will provide copies of its amended policies and the amended Parent Handbook to any employees responsible for considering and providing requests for reasonable modification of applicants and enrollees and/or terminating enrollment. 
    1. New employees with comparable responsibilities hired during the term of this Agreement shall be provided with copies of the amended policies and amended Parent Handbook within thirty (30) days of their start date.
    2. At any annual training for NexGen employees, NexGen will include a segment on the ADA, to educate employees on non-discrimination policy and procedures set forth in Paragraph 13, and relevant handbook and addendum policies and procedures.
4. MISCELLANEOUS PROVISIONS
   15. The effective date of this Agreement is the date of the last signature below.
   16. The duration of this Agreement will be two (2) years from the effective date.
   17. In consideration of this Agreement, the United States agrees to close its investigation DJ No. 202-48-320 without further enforcement action, except as provided in Paragraphs 18-19 of this Agreement.  The Parties agree and acknowledge that this consideration is adequate and sufficient.
   18. The United States may review compliance with this Agreement at any time.  NexGen will cooperate fully with the United States’ efforts to monitor compliance with this Agreement, including but not limited to, providing the United States with reasonable requested information.  If the United States believes that NexGen 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 NexGen 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 NexGen, 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.
   19. 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, NexGen 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.
   20. 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.
   21. 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.
   22. The individuals signing this Agreement represent that they are authorized to do so on behalf of the respective entity for which they have signed.
   23. 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 NexGen 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 1-4.  Nothing in this Agreement relates to other provisions of the ADA or affects NexGen’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 the Agreement.
   24. This Agreement constitutes the entire agreement between the United States and NexGen 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 shall be enforceable.
   25. 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 NexGen shall provide a copy of this Agreement to any person upon request.
   26. This Agreement shall be binding upon NexGen, its agents, employees, successors, and assigns.  If NexGen acquires a new facility during the term of this Agreement, NexGen shall immediately take steps to implement the requirements of this Agreement with respect to the facility.
   27. This Agreement does not affect NexGen’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: