SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
AND
OC KIDS INFANT AND PRESCHOOL
UNDER THE AMERICANS WITH DISABILITIES ACT

BACKGROUND

1. The parties to this Settlement Agreement ("Agreement") are the United States of America ("United States") and OC Kids Infant and Preschool ("OC Kids") in Garden Grove, California.
2. This matter is based upon a complaint filed with the United States alleging that OC Kids discriminated against Complainant's child based on the child's disability, severe food allergy, in violation of Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12181-12189. Specifically, Complainant alleges that OC Kids discriminates against children with severe allergies by maintaining a policy of not administering the emergency drug EpiPen (a disposable device used to administer a pre-measured dose of epinephrine to children with severe allergies) to children in its care who experience severe allergic reactions. The complaint also alleges that the OC Kids' Parent Handbook contained the following language in violation of the ADA: "We do not accept the responsibility of Nebulizer care or the administration of Epipen or other similar injections."

TITLE III COVERAGE AND DETERMINATIONS

3. Attorney General is responsible for administering and enforcing Title III of the ADA, 42 U.S.C. §§ 12181-12189, and the relevant regulation implementing Title III, 28 C.F.R. Part 36.
4. Complainant's child has a severe food allergy, a physical impairment that substantially limits one or more major life activities, including the operations of the immune system, digestion, bowel functions, and respiratory functions, which are major bodily functions. Accordingly, Complainant's child has a disability within the meaning of 42 U.S.C. § 12102 and 28 C.F.R. § 36.104.
5. OC Kids operates a preschool and infant care facility in Orange County, California.
6. OC Kids owns, leases (or leases to), or operates a place of public accommodation, a nursery or other place of education, within the meaning of 42 U.S.C. § 12182(a) and 28 C.F.R. § 36.104 (Place of public accommodation).
7. OC Kids is a public accommodation within the meaning of 42 U.S.C. §§ 12181(7)(J) and (K) because its operations affect commerce and because it owns and operates a place of public accommodation. 28 C,F,R, § 36.104 (Public accommodation).
8. Under Title III of the ADA, no person who owns, leases (or leases to), or operates a public accommodation may discriminate against an individual on the basis of a disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a public accommodation. 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a).
9. The ADA prohibits a public accommodation from discriminating against an individual on the basis of disability in the full and equal enjoyment of its good and services. 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201. Specifically, the ADA prohibits a public accommodation from denying the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity to an individual on the basis of disability. 42 U.S.C. §§ 12182(b)(1)(A)(i); 28 C.F.R. §§ 36.202(a). A failure to make reasonable modifications to policies, practices, or procedures, when such modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities is discrimination unless the modifications sought are not reasonable and would constitute a fundamental alteration of the nature of the goods, services, facilities, privileges, advantages or accommodations of the public accommodation. 42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302.
10. The Department has determined that allowing a trained layperson to administer the emergency drug EpiPen -- where a parent and a child's physician or other qualified health care professional deem it appropriate for the child to be so assisted when he/she has an allergic reaction (relying on the objective medical data as to the current health status of the individual child) -- is a reasonable modification under the ADA, absent a fundamental alteration.
11. Ensuring that childcare 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, where appropriate to use alternative means of dispute resolution, 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).
12. Complainant and Complainant's child are aggrieved persons pursuant to 42 U.S.C. § 12188(b)(2)(B).
13. OC Kids and the Department understand and agree that this Agreement is a compromise settlement of disputed claims, and that the making of this Agreement shall not be deemed or construed to be an admission by OC Kids of any liability or fault of any kind, which fault or liability is expressly denied.

ACTIONS TO BE TAKEN BY OC KIDS

14. Effective immediately, OC Kids: (1) will not discriminate against any individual on the basis of 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; (2) will make reasonable modifications to policies, practices, and procedures when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities unless the modifications would fundamentally alter the nature of its services or facilities; and (3) will not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations, unless such criteria can be shown to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered.
15. Modification of Policies, Practices, and Procedures

    Within sixty (60) days of the effective date of this Agreement, OC Kids shall submit to the United States, for review and approval, written policies, practices, and procedures setting out OC Kids' obligations under Title III of the ADA, to be adopted and implemented at OC Kids. OC Kids will adopt and implement the revised policies, practices, and procedures within thirty (30) days of the United States' approval. OC Kids' policies and procedures shall, at a minimum, include the following:

    1. A nondiscrimination policy that states that OC Kids does not discriminate in the provision of its services to persons with disabilities, including, but not limited to children with food allergies, in all OC Kids' programs, including but not limited to childcare, before and after-school programs, classes and recreational programs.
    2. Inclusion of the nondiscrimination policy on OC Kids' website, in its employee and parent handbooks, and in any application materials provided to parents or guardians of prospective enrollees.
    3. Adopt and implement a policy stating that OC Kids will make reasonable modifications to its policies, practices and procedures where necessary to afford its goods, services, facilities, privileges, advantages and accommodations to children with disabilities, including children who have food allergies that constitute a disability under the ADA, upon request from the child's parent or guardian, unless such a request amounts to a fundamental alteration of the program or is not in compliance with federal, state, or local laws. In instances where state or local laws conflict with the ADA, OC Kids shall be required to comply fully with the ADA. OC Kids 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. Upon receiving a request, OC Kids will follow the procedure specified in Paragraph 19 for considering that request.
    4. Information for parents of children with disabilities, explaining how to request modifications to OC Kids' policies, practices, and procedures with respect to childcare services. This information shall be publicized in the parent handbook and on OC Kids' website, and disseminated with application materials provided to parents or guardians of prospective enrollees.
    5. Modifications to its current eligibility criteria by removing the blanket policy set out in the parent Handbook that "We do not accept the responsibility of Nebulizer care or the administration of Epipen or other similar injection," or any other unnecessary inquiries that screen out or tend to screen out individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages or accommodations.
    6. Materials for training on the general nondiscrimination requirements of Title III, which shall include training on reasonable modifications including the administration of emergency rescue medications such as the EpiPen, and how and when to administer such medications, for OC Kids' owners, operators, employees, and volunteers.
16. Within thirty (30) days from the date upon which OC Kids implements the policies and procedures set forth in Paragraph 15, above, OC Kids shall publicize the policies and procedures by distributing them to all of its staff.
17. Within sixty (60) days from the date upon which OC Kids implements the policies and procedures set forth in Paragraph 15, OC Kids will provide training as described in paragraph 15(f) above on the general nondiscrimination requirements of Title III of the ADA, including training on reasonable modifications including the administration of emergency rescue medications such as the EpiPen, and how and when to administer such medications to all OC Kids' owners, operators, employees, and volunteers. New personnel, including volunteers, hired during the term of this Agreement shall be provided comparable training within thirty (30) days of their start date. For the duration of this Agreement, OC Kids will provide annual, refresher training on the general nondiscrimination requirements of Title III of the ADA, including training on allergic reactions, and administration of the Epi- Pen to all OC Kids' operators, employees, and volunteers.
18. OC Kids will create and maintain an attendance log that documents the name of each individual who attends the trainings required in Paragraph 17, his or her title, and the date he or she attended the training. OC Kids shall provide copies of the attendance sheets to the United States within ten (10) days of any request for them.
19. Upon receiving a request for a modification to its policies, practices, or procedures, OC Kids 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 available. OC Kids 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. Following the discussion, OC Kids 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, OC Kids will document each and every reason for the denial of the request and shall submit the documentation to the United States.
20. OC Kids will make good faith efforts to provide a response to a request for modification, in writing, no later than seven (7) days from the date the request is received. If a request for reasonable modification is denied, OC Kids shall notify the child's parent(s) or guardian(s), in writing, of the reason(s) for the denial.
21. Within ten (10) days of any decision to deny a requested modification of policies, practices or procedures for a child with a disability, OC Kids must provide to the United States the documents related to the decision, the identities of all individuals who participated in the decision, and all reasons underlying the decision. This information should be sent by overnight mail or email as set forth in Paragraph 22.
22. Every twelve (12) months, for the duration of this Agreement, OC Kids will provide the United States written monitoring reports that include activities described in Paragraphs 14-21. Upon request, OC Kids will provide the United States all documentation underlying or related to the reports of OC Kids' compliance with this Agreement. OC Kids shall send monitoring reports via electronic mail to the United States (to the attention of katherine.hikida@usdoj.gov or other person specified by the United States) or via Federal Express to:

    Katherine M. Hikida
    United States Attorney's Office
    300 N. Los Angeles Street, Rm. 7516
    Los Angeles, CA 90012
    [DJ # 202-12C-563; USAO # 2016V00396]

23. If any issues arise that affect the anticipated completion dates set forth in Paragraphs 14-22, OC Kids will immediately notify counsel for the United States of the issue(s), and the parties will attempt to resolve those issues in good faith. Until the parties have agreed to modify completion dates in writing, the dates in the Agreement remain applicable. A failure to comply with deadlines agreed upon in this Agreement may constitute a violation of this Agreement.

Monetary Relief

24. Within thirty (30) days of the effective date of this Agreement, OC Kids shall pay a total of Three Thousand and 00/100 Dollars ($3,000) to Complainant and Complainant's child to compensate them as authorized by 42 U.S.C. 12188(b)(2)(B); 28 C.F.R. § 36.504(a)(2). Such payment shall be made by check payable to the order of the Complainant (in her legal name) and delivered to the Complainant via overnight, private courier. OC Kids will notify counsel for the United States in writing on the day when any payment of monetary relief to the Complainant required under this Agreement has been made, and will provide counsel for the United States with a scanned copy of the check.
25. Within fifteen (15) days of the effective date of this Agreement, the United States Attorney's Office will deliver to counsel for OC Kids a release signed by the Complainant. The release is attached hereto as Exhibit A.

OTHER PROVISIONS

26. In consideration for the Agreement set forth above, the United States will close its investigation of DJ # 202-12C-563; USAO # 2016V00396.
27. The United States may review OC Kids' compliance with this Agreement or Title III of the ADA at any time. If the United States believes that Title III of the ADA, this Agreement, or any portion of it has been violated, it may institute a civil action in the appropriate United States District Court to enforce this Agreement and/or Title III of the ADA.
28. Failure by the United States to enforce any provision in this Agreement is not a waiver of the United States' rights to enforce any provision of this Agreement.
29. 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 OC Kids 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.
30. This Agreement is binding on OC Kids, including all principals, agents, executors, administrators, representatives, employees, successors in interest, beneficiaries, and assignees. In the event that OC Kids seeks to sell, transfer, or assign all or part of its interest during the term of this Agreement, as a condition of sale, transfer, or assignment, OC Kids will obtain the written agreement of the successor, buyer, transferee, or assignee to all obligations remaining under this Agreement for the remaining term of this Agreement.
31. The signatories for OC Kids represent that they are authorized to bind OC Kids to this Agreement. vThis Agreement constitutes the entire agreement between the United States and OC Kids on the matters raised herein, and no prior or contemporaneous statement, promise, or agreement, either written or oral, made by any party or agents of any party, that is not contained in this written agreement, including any attachments, is enforceable. This Agreement can only be modified by mutual written agreement of the parties.
32. Nothing in this Agreement relieves OC Kids of its obligation to fully comply with the requirements of the ADA.
33. OC Kids shall not discriminate or retaliate against any person because of his or her participation in this matter.

EFFECTIVE DATE/TERMINATION DATE

35. The effective date of this Agreement is the date of the last signature below.
36. The duration of this Agreement will be two (2) years from the effective date of this Agreement.