Press Release

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

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UNITED STATES OF AMERICA,

Plaintiff,

v.

NOBEL LEARNING COMMUNITIES, INC.,

Defendant.

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Civ. No. 09-1818-MAM

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EXHIBIT A

NLC Disability Non-Discrimination Policy

  1. Nobel Learning Communities, Inc. (“NLC”) is committed to providing a fine education to all of its students (which term includes, but is not limited to, any child enrolled in any NLC facility). As part of that commitment, NLC makes its programs, facilities, and services available on a non-discriminatory basis, including to students with disabilities, as required under Title III of the Americans with Disabilities Act, as amended, 42 U.S.C. §§ 12101, et seq. (“ADA”).
  2. In accordance with this commitment, NLC has instituted this Disability Non-Discrimination Policy (“the Policy”).
  3. NLC shall designate a person who reports to corporate senior management at NLC headquarters (“ADA Compliance Officer”).  The ADA Compliance Officer will review for compliance with the Policy all decisions not to enroll a student with a disability, or to disenroll a student with a disability. The ADA Compliance Officer will make notifications on behalf of NLC to parent(s)/guardian(s) as is required by the Policy. 
  4. NLC shall not make unnecessary inquiries into the existence of a disability and shall not impose or apply eligibility criteria that screen out or tend to screen out students with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations (together referred to in the Policy as “NLC Programs and Services”) unless such criteria are necessary for the provision of NLC Programs and Services.  42 U.S.C. § 12182(b)(2)(A)(i); 28 C.F.R. § 36.301(a).
  5. In accordance with the ADA, NLC will make reasonable modifications as necessary to afford NLC Programs and Services to students with disabilities unless such modifications result in a fundamental alteration (including an undue burden). Furthermore, NLC is not required to enroll or keep enrolled a student when that student poses a direct threat to the health or safety of others.  The terms “fundamental alteration,” “undue burden,” and “direct threat” are defined herein belowand in the ADA’s implementing regulations. 28 C.F.R. § 36.302(a); 28 C.F.R. § 36.208(a)-(c); 28 C.F.R. 36.104.
  6. Reasonable modifications will be considered following any request made by a student’s parent(s)/guardian(s) or upon staff recommendation (provided that such staff recommendation is made after consultation with the student’s parent(s)/guardian(s)).  A request for modification made by a parent(s)/guardian(s) must be made to any NLC principal, assistant principal and/or NLC’s ADA Compliance Officer.  Such request may be made orally or in writing and need not be “formal” (for instance, it need not use the words “reasonable modification”).  However, in the event that a parent(s)/guardian(s) discusses a proposed reasonable modification with a teacher or assistant teacher, the teacher or assistant teacher is obligated to report the request to the regional executive, assistant principal, principal, or NLC’s ADA Compliance Officer, and that will be treated by NLC as a request for a reasonable modification.   
  7. Nothing in the Policy is intended to cause NLC to violate any provision of any state, local or municipal law.
  8. The Policy shall be interpreted and applied consistently with the requirements of the ADA.
  9. NLC is entitled to refuse to enroll or disenroll a student in accordance with the provisions of the ADA and the Policy.

    Definitions

  10. For the purposes of the Policy:
    1. “Disability” means a physical or mental impairment that substantially limits one or more major life activities; a record of such impairment; or being regarded as having such an impairment. 42 U.S.C. § 12102(1); 28 C.F.R. § 36.104.
    2.  “Reasonable modifications” are modifications to NLC’s policies, practices, or procedures when such modifications are necessary to afford NLC Programs and Services to students with disabilities, unless NLC can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations. 42 U.S.C. §12182 (b)(2)(A)(ii); 28 C.F.R. § 36.302(a).
    3. “Undue burden” means significant difficulty or expense. In determining whether an action would result in an undue burden, factors to be considered include: (1) The nature and cost of the action needed; (2) The overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site; (3) The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity; (4) If applicable, the overall financial resources of any parent corporation or entity; the overall size of any parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and (5) If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of any parent corporation or entity.  28 C.F.R. § 36.104.
    4.  A “fundamental alteration” is one that fundamentally alters the nature of goods, services, facilities, privileges, advantages, or accommodations afforded by NLC.  28 C.F.R. § 36.302(a). 
    5. “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.  28 C.F.R. § 36.208. 

    Policies and Practices

  11. During the enrollment process, NLC can make only the following disability-related inquiries on application materials, which inquiries must be posed uniformly on the application materials of all potential enrollees:  “Would your child need assistance and/or modifications to NLC’s Programs and Services in order to fully participate in NLC’s Programs and Services?  (Yes or No – circle one).  Any requests for assistance and/or modifications must be made to the school’s principal, assistant principal and/or NLC’s ADA Compliance Officer.”
  12. When NLC receives a request for a reasonable modification, NLC will initiate, within a reasonable period of the receipt of the request not to exceed twenty-one (21) calendar days under routine circumstances, a discussion with the parent(s)/guardian(s) to determine whether the student has a disability for which reasonable modifications may be made and to explore what reasonable modifications may be feasible. NLC shall hold open a slot for an applicant with a disability while a reasonable modification decision is being made. 
  13. After receiving a new or revised request for a reasonable modification, or upon determination (after consultation with the student’s parent(s)/guardian(s)) by NLC staff that a reasonable modification may be appropriate, NLC may consult, as necessary at its discretion, with NLC educators or administrators, with the student’s parent(s)/guardian(s), with experts suggested by the parent(s)/guardian(s), and any expert or experts retained or employed by NLC, as needed, in order to determine whether the student may be enrolled or may continue to be enrolled with reasonable modification.
  14. When NLC receives a request for reasonable modification, or NLC staff have determined (after consultation with the student’s parent(s)/guardian(s)) that a reasonable modification may be appropriate, parent(s)/guardian(s) may submit any information they deem relevant to NLC’s decision (including, but not limited to, statements from the student’s medical or treating professional), and NLC may ask the student’s parent(s)/guardian(s), in writing, for the following information:
    1. A description from a health care or learning professional of how the student’s impairment may limit his or her participation in NLC’s Programs and Services.  This description may include:
      1. The specific limitation of the student;
      2. A description of  the duration and severity of the condition;
      3. Any modifications to NLC Programs and Services which the health care or learning professional suggests are necessary to permit the student to participate in NLC Programs and Services.
    2. If one exists, an educational evaluation, such as an Individualized Family Service Plan (“IFSP”), Individualized Educational Plan (“IEP”) or other professional evaluation or assessment of the student.  However, to the extent that such information is provided, the parent(s)/guardian(s) of the student may redact any sensitive personal information contained therein, including information on the student’s family members (such as medical history or genetic information regarding a student’s sibling(s), parent(s) or guardian(s)) as long as that information is unrelated to the core objectives of the IEP or similar plan.
    3. A description of the circumstances in which NLC should notify the parent(s)/guardian(s) of changes in a student’s condition or seek emergency medical attention.
  15. The information provided pursuant to the immediately previous paragraph is for the exclusive purpose of enabling NLC to make a decision about whether reasonable modifications in its policies, practices, or procedures can be made if necessary to provide NLC Programs and Services to a student with a disability and for use in providing NLC Programs and Services to such student. The information shall be shared, on an as-needed basis, only with NLC staff involved in the reasonable modification determination and who are involved in the implementation of any reasonable modification.

    If NLC believes that it lacks enough information to decide whether it can make reasonable modifications for the student, NLC will use its best efforts to describe with specificity what additional information it needs and will contact the parent(s)/guardian(s) in writing and request such additional information.  NLC will notify parent(s)/guardian(s) that, under routine circumstances, if they provide no further information within twenty-one (21) calendar days, NLC may proceed with its reasonable modification decision without that information.
  16. In determining whether a requested modification is reasonable, NLC personnel shall take into account the following:
    1. Whether the requested modification if provided would require a fundamental alteration to NLC Programs and Services.
    2. Whether the requested modification would result in an undue burden.
    3. NLC is not required to enroll, or keep enrolled, a student when that student poses a direct threat to the health or safety of others.  28 C.F.R. §36.208 (a)-(c). 
    4. If a modification request includes the presence of one or more individual aides, assistants, para-educators or support providers to assist the student:
      1. NLC shall not deny admission to or disenroll a student with a disability because the student needs the assistance of an aide, assistant, para-educator or support provider, whether in or outside of the classroom, unless such modification would fundamentally alter NLC Programs and Services or result in an undue burden.  NLC shall not be required to provide or pay for non-NLC employed individual aides, assistants, para-educators or support providers.
      2.  NLC is not required to enroll, or keep enrolled, a student when that student poses a direct threat to the health or safety of others.  28 C.F.R. §36.208(a)-(c).
      3. NLC may require that the parent(s)/guardian(s) of a student who has been professionally evaluated through an IEP, an IFSP, or similar evaluation provided through the student’s parent(s)/guardian(s) as requiring one-on-one assistance at all times in a classroom ensure that the aide, assistant, para-educator or support provider be present at all times.  NLC will make reasonable modifications to allow such students to attend NLC Programs and Services unless such reasonable modifications result in a fundamental alteration (including an undue burden).
      4. NLC shall be entitled to ensure that any aide, assistant, para-educator or support provider provided by other persons or entities meets all requirements that apply to other non-NLC educational service providers who provide services directly to students and who come into NLC schools.
      5. Where NLC has some concern about the presence of multiple aides in a single classroom, NLC will evaluate on a case-by-case basis and in accordance with the ADA and this Policy whether in a particular instance the presence of multiple aides in a single classroom will constitute a fundamental alteration to NLC Programs or Services or result in an undue burden.
      6. NLC may impose legitimate safety requirements that are necessary for safe operation.  Safety requirements must be based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities. 28 C.F.R. § 36.301(b). 
  17. NLC will not admit a prospective student or may disenroll a student whose parent(s)/guardian(s) unreasonably withhold their cooperation (such as by refusing to provide information necessary to making a reasonable modification determination) during the reasonable modification process.
  18. Decisions about whether to provide reasonable modifications to NLC’s Programs and Services for a given student will be reduced to writing, signed by the principal and the student’s parent(s)/guardian(s) and provided to the parent(s)/guardian(s) in the form of a modification plan within a reasonable period following NLC’s receipt of the information needed to make its decision (which period is not to exceed twenty-one (21) calendar days, under routine circumstances, from the date of NLC’s receipt of the information needed to make its decision).
  19. NLC may refuse to enroll or may disenroll a student if that student’s parent(s)/guardian(s) fail to sign the modification plan within a reasonable time of the receipt by the parent(s)/guardian(s) of the modification plan, such time not to exceed twenty-one (21) calendar days under routine circumstances from the date of the communication of the modification plan to the parent. The twenty-one (21) day time frame referenced in this paragraph shall be communicated to the parent(s)/guardian(s) upon transmission to them of the modification plan.
  20. The modification plan will describe the student’s disability and any identified limitations caused by the disability, any modifications requested, any modifications agreed to, and next review date (if one is scheduled). Modification plans may be reviewed earlier than the review date at the discretion of NLC or at the request of a student’s parent(s)/guardian(s).  If NLC determines that a requested modification is not reasonable, NLC will communicate the decision summarizing the reasons for the decision to the parent(s)/guardian(s) in writing (signed by the ADA Compliance Officer) within a reasonable time after the decision, not to exceed twenty-one (21) calendar days under routine circumstances, and will not enroll or will disenroll the student.

 

EXHIBIT B

ACKNOWLEDGEMENT OF TEACHER/ASSISTANT TEACHER REGARDING NLC DISABILITY NON-DISCRIMINATION POLICY

 

I hereby acknowledge that I have read the NLC Disability Non-Discrimination Policy.

I further acknowledge that I will report any requests for modifications related to a disability to a regional executive, assistant principal, principal, or NLC’s ADA Compliance Officer. I understand that such requests may be in writing (including, but not limited to, notes, letters, faxes, and email) or may be made orally.

Signed this _______ day of ____________, 20­­­__­_

 

NAME OF TEACHER/ASSISTANT TEACHER (signature)

NAME OF TEACHER/ ASSISTANT TEACHER (printed)

 

EXHIBIT C

RELEASE OF ADA CLAIMS

D.J. No. 202-82-77, Civil Action No. 09-1818-MAM (E.D. Pa.)

For and in consideration of the acceptance of $_______ (dollars) in damages, offered to me/us (for and as parent(s) and/or guardian(s) of the minor____________________), by Nobel Learning Communities, Inc. (NLC), pursuant to a Settlement Agreement resolving United States v. Nobel Learning Communities, Inc., Civ. Action No. 09-1818-MAM, in the U.S. District Court for the Eastern District of Pennsylvania: I/we, the parent(s) and/or guardian(s) of ______________________, do forever release and discharge NLC, and its respective shareholders, members, managers, legal successors and assigns, heirs, administrators, subsidiaries, affiliates, insurers, successors and assigns, and its current, past and future shareholders, attorneys, agents, servants, employees, officers, directors and partners of and from any and all legal and equitable claims under title III of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12181-12189, arising out of or related to D.J. No. 202-82-77 and Civil Action No. 09-1818-MAM (E.D. Pa.), that may hereinafter be sustained by the said minor or the undersigned, in consequence of the above-referenced minor’s alleged exclusion from/disenrollment from/other discrimination on the basis of disability by NLC.

The undersigned agree(s) as a further consideration and inducement for this release, that it shall apply to all unknown and unanticipated injuries and damages directly and indirectly resulting from the above-referenced minor’s alleged exclusion from/disenrollment from/other discrimination on the basis of disability by NLC, as well as to those disclosed.

The undersigned further understand(s) and agree(s) that said payment is made to terminate further controversy respecting all claims for damages that said minor or the undersigned have or might personally or through personal representatives hereafter assert because of the above-referenced minor’s alleged exclusion from/disenrollment from/other discrimination on the basis of disability by NLC.

This Release constitutes the entire agreement between myself/ourselves and NLC as of the date of signature, below, without exception or exclusion, concerning the ADA matter raised in D.J. No. 202-82-77 and in Civil Action No. 09-1818-MAM (E.D. Pa.). This Release will be considered null and void in the event that NLC fails to provide compensation as established above.

I/we acknowledge that a copy of the Settlement Agreement in Civil Action No. 09-1818-MAM has been made available to me/us. I/we further acknowledge that I/we have had the opportunity to review the terms of this Release with an attorney of my/our choosing, and, to the extent that I/we have not obtained that legal advice, I/we voluntarily and knowingly waive my/our right to do so.

I/WE HAVE READ THIS RELEASE AND UNDERSTAND THE CONTENTS THEREOF AND I/WE EXECUTE THIS RELEASE OF MY/OUR OWN FREE ACT AND DEED.

Signed this _______ day of ____________, 2011.

NAME (Parent or Guardian)

NAME (Parent or Guardian)

Sworn and subscribed to before me this _______ day of ____________, 2011.

Notary public

My commission expires:____________

 

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January 19, 2011