SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
AND
YMCA OF THE TRIANGLE
UNDER THE AMERICANS WITH DISABILITIES ACT
DJ # 202-54-148

BACKGROUND

1. The parties to this Agreement are the United States Department of Justice (United States) and the YMCA of the Triangle (YMCA of the Triangle), located in Raleigh, North Carolina.
2. This matter is based upon a complaint filed with the United States Department of Justice, in which a Complainant alleged that YMCA of the Triangle denied his then five year-old son admission to an after-school program on the basis of his son's disability, in violation of title III of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12181-12189.  Specifically, Complainant alleges that his son was denied admission and the opportunity to participate in a YMCA of the Triangle after-school program on the basis of Complainant's son's type 1 diabetes.
3. The United States and YMCA of the Triangle have reached agreement that it is in the parties' best interests, and the United States believes that it is in the public interest, to resolve this dispute.  The parties have therefore voluntarily entered into this Agreement, as set forth below.

TITLE III COVERAGE AND FINDINGS

4. 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.
5. Complainant's 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, he has a disability within the meaning of 42 U.S.C.  § 12102; 28 C.F.R. § 36.104.
6. YMCA of the Triangle has its principal location at 801 Corporate Center Drive #200, Raleigh, North Carolina 27607.  YMCA of the Triangle serves Wake, Durham, Lee, Johnston, Orange, Chatham and Pamlico counties, with 13 branches and three overnight camps.  It administers after-school programs at 53 sites to nearly 5,000 children.
7. Among its 53 after-school programs in North Carolina, YMCA of the Triangle administers an after-school program at Underwood Elementary School at 1614 Glenwood Avenue, Raleigh, North Carolina 27608. 
8. YMCA of the Triangle owns, leases (or leases to), or operates places of public accommodation within the meaning of 42 U.S.C. § 12182(a); is a nonprofit organization that operates these facilities and is, therefore, a private entity within the meaning of 42 U.S.C. § 12181(6); and is a public accommodation within the meaning of 42 U.S.C. § 12181(7)(K) & (L) because its operations affect commerce and it operates day care centers and places of recreation.  See also 28 C.F.R. § 36.104.
9. 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 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).
10. 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, 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: (1) an individual on the basis of disability and  (2) an individual because of their relationship or association with an individual with a disability.  42 U.S.C. §§ 12182(b)(1)(A)(i) and 12182(b)(1)(E); 28 C.F.R. §§ 36.202(a) and 36.205.  Failure to 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 is also discriminatory unless the modifications would constitute a fundamental alteration.  42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302.  Absent a showing of fundamental alteration, 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 non-nurse (relying on objective medical data as to the current health status of the individual child), allowing a trained layperson to do so would be a reasonable modification under the ADA.  Id.
11. 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).
12. As a result of its investigation, the United States has determined:
    1. Beginning on approximately July 9, 2013, Complainant inquired about enrolling his then five year-old child in a YMCA of the Triangle after-school program at Underwood Elementary School in Raleigh, North Carolina.  The after-school program was scheduled to begin at the beginning of the school year.
    2. Upon informing YMCA of the Triangle staff that his child has type 1 diabetes, and that he would require help monitoring his blood glucose levels and an injection of Glucagon in the event of a low blood glucose level emergency, Complainant was referred to YMCA of the Triangle's Vice President of Risk Management.
    3. On or about July 9, 2013, YMCA of the Triangle's Vice President of Risk Management provided Complainant with a list of applicable program policies, including its medical treatment policies.  At that time, the medical treatment policy for YMCA of the Triangle stated that, other than EpiPen injections, the staff was not authorized to give shots or administer medications that had to be inserted into body cavities.  When special circumstances existed, YMCA of the Triangle would meet with a child's parent(s) or guardian(s) and would strive to develop a mutually acceptable alternative way to make sure the medication requirements of the child were met.
    4. After July 9, 2013, and continuing for a period of time, Complainant engaged in email correspondence and telephone conferences with YMCA of the Triangle's Vice President of Risk Management about his child's diabetes care.  During that period of time, personnel from YMCA of the Triangle sought advice from legal and medical professionals regarding possible modifications to the policy. 
    5. On July 17, 2013, the YMCA of the Triangle Vice President of Risk Management informed Complainant that YMCA of the Triangle was not in a position to provide the level of care that Complainant's child needed while attending YMCA of the Triangle's after-school program, but that YMCA of the Triangle was continuing to review and reassess these kinds of situations.  
    6. Approximately ninety (90) days after Complainant first made inquiries regarding enrolling his child in the after-school program at Underwood Elementary School, YMCA of the Triangle modified its medical treatment policy.  The modified policy states that it will, when necessary, have trained personnel on-site who are qualified to administer injections in urgent, non-routine situations.  At that time, YMCA of the Triangle also agreed to provide trained personnel at Underwood Elementary School who could administer injections.
    7. Thereafter, YMCA of the Triangle informed Complainant that they would provide the modification that he had requested and offered to enroll his child in the after-school program at Underwood Elementary School.  Complainant declined YMCA's offer because, by that time, he had made other child care arrangements.
13. The United States, having considered all information gathered in the course of its investigation, has determined that YMCA of the Triangle violated the ADA by failing to make reasonable modifications to policies, practices and procedures when necessary to ensure participation in the after-school program, denying Complainant's child the opportunity to participate in the after-school program on the basis of his child's type 1 diabetes, and, by association, denying Complainant the opportunity to enroll his child in and utilize the after-school care services in violation of 42 U.S.C. § 12182; 28 C.F.R. §§ 36.202(a), 36.205 & 36.302.
14. Complainant and Complainant's child are aggrieved persons pursuant to 42 U.S.C. § 12188(b)(2)(B).
15. YMCA of the Triangle disputes that Complainant and Complainant's child are aggrieved persons pursuant to 42 U.S.C. § 12188(b)(2)(B) and that Complainant's child was denied the opportunity to participate in the after-school program at Underwood Elementary.  In signing this Agreement, YMCA of the Triangle denies any liability with respect to Complainant and Complainant's child.  By entering into this Agreement, YMCA of the Triangle makes no admission of liability in this matter.

ACTIONS TO BE TAKEN BY YMCA OF THE TRIANGLE

16. Effective immediately, YMCA of the Triangle, including its 13 branches, three overnight camps, and after-school programs at all sites in its service area: (1) will not discriminate against any individual on the basis of disability 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 not deny reasonable modifications to policies, practices, and procedures when such modifications are necessary to afford access to 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.
17. ADA Compliance Officer:  Within thirty (30) days of the effective date of this settlement agreement, YMCA of the Triangle shall designate and maintain an ADA Compliance Officer who shall have responsibility for monitoring compliance with this Agreement, including ensuring that the YMCA of the Triangle adopts and implements the policies and procedures set forth in Paragraph 18, below.  YMCA of the Triangle will provide the ADA Compliance Officer with sufficient authority and resources to perform the tasks required by this Agreement, including review of all denied reasonable modification requests and any decisions to exclude from enrollment a child with a disability.  The ADA Compliance Officer will maintain records regarding his or her review of all denied reasonable modification requests and all decisions to exclude a child with a disability from enrollment.  As set forth in Paragraph 26, below, every six (6) months for the duration of this Agreement, YMCA of the Triangle shall submit a written report to the United States that documents the ADA Compliance Officer's reviews and decisions.
18. Modification of Policies and Procedures:  Within sixty (60) days of the effective date of this Agreement, YMCA of the Triangle shall submit to the United States, for review and approval, written policies and procedures regarding YMCA of the Triangle's obligations under title III of the ADA, to be adopted and implemented at all YMCA of the Triangle associated branches.  YMCA of the Triangle will adopt and implement the revised policies and procedures within thirty (30) days of the United States' approval, which approval will not be unreasonably withheld.  YMCA of the Triangle's policies and procedures shall, at a minimum, include the following:
    1. A nondiscrimination policy that states that YMCA of the Triangle does not discriminate in the provision of services to persons with disabilities, including children with diabetes, in all YMCA of the Triangle programs, including but not limited to child care, camps, before and after-school programs, classes and recreational programs; and inclusion of the nondiscrimination policy on the YMCA of the Triangle's website at http://www.ymcatriangle.org/ and in the employee and parent handbooks.  The nondiscrimination policy shall also state that the provision of reasonable modifications, including diabetes management, is not limited to urgent, non-routine situations.
    2. The designation of one individual per branch who is authorized to receive and review requests for reasonable modifications with respect to children with disabilities.  The contact information for each branch designee, as well as the contact information for YMCA of the Triangle's ADA Compliance Officer, shall be publicized in the parent handbook and on YMCA of the Triangle's website, http://www.ymcatriangle.org/, and disseminated with application materials provided to parents or guardians of prospective enrollees.
    3. Information for parents or guardians of children with disabilities, explaining how to request reasonable modifications to YMCA of the Triangle's policies, practices, and procedures with respect to child care services.  This information shall be publicized in the parent handbook and on YMCA of the Triangle's website, http://www.ymcatriangle.org/, and disseminated with application materials provided to parents or guardians of prospective enrollees.
    4. Continued implementation of medical policies and practices, to reflect that upon request from a child's parent(s) or guardian(s), YMCA of the Triangle will appropriately consider requests for reasonable modifications, including, for example, a request that YMCA of the Triangle administer insulin or administer Glucagon in the event of an emergency.  YMCA of the Triangle 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, YMCA of the Triangle will follow the procedure specified in Paragraph 22 for considering that request. 
    5. Materials for annual training on the general nondiscrimination requirements of title III, which shall include training on diabetes management for employees and volunteers with responsibility for granting or denying enrollment, considering requests for reasonable modification and providing reasonable modifications to enrolled children. 
19. Within thirty (30) days from the date upon which the YMCA of the Triangle implements the policies and procedures set forth in Paragraph 18, above, YMCA of the Triangle shall publicize the policies and procedures by distributing them to all associated branches.
20. Within thirty (30) days from the date upon which the YMCA of the Triangle implements the policies and procedures set forth in Paragraph 18, above, YMCA of the Triangle will provide live training on the general nondiscrimination requirements of title III of the ADA to all employees and volunteers with responsibility for granting or denying enrollment and/or considering requests for reasonable modification.  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.  For the duration of this Agreement, YMCA of the Triangle will provide annual, refresher live 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 modification and providing reasonable modifications to enrolled children.
21. YMCA of the Triangle will create and maintain an attendance log that documents the name of each individual who attends the trainings required in Paragraph 20, his or her title, and the date he or she attended the training.  YMCA of the Triangle shall provide copies of the attendance sheets to the United States within ten (10) days of any request for them. 
22. Upon receiving a request for a modification, the YMCA of the Triangle 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.  Following the discussion, the YMCA of the Triangle 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, the YMCA of the Triangle will document each reason for the denial of the request and shall submit the documentation to the ADA Compliance Officer for review.  YMCA of the Triangle shall provide documentation about requests for reasonable modifications and decisions denying such requests to the United States consistent with the requirements of Paragraph 26, below. 
23. A response to a request for a reasonable modification will be provided by YMCA of the Triangle in writing, within twenty-one (21) days from the date the request is received.  If a request for a reasonable modification is denied, the YMCA of the Triangle shall notify the child's parent(s) or guardian(s), in writing, of the reason(s) for the denial.
24. Within seven (7) business days of a decision to deny admission to a child with a disability (where YMCA of the Triangle knew that the child had a disability) or deny a requested modification of polices, practices or procedures based on a child's disability, the ADA Compliance Officer must provide to the United States the documents related to the decision, as indicated in Paragraph 22(c) above; the identities of all individuals who participated in the decision; and all reasons underlying the decision.  This information should be sent by overnight mail to the address specified in Paragraph 26 or email.
25. Within the later of 15 days of the effective date of this Agreement and the date the Complainant provides YMCA of the Triangle with an IRS Form W-9 and a signed copy of the attached release, YMCA of the Triangle will pay $5,000 to the Complainant to compensate him for the alleged harm he and his child have endured as a result of YMCA of the Triangle's alleged failure to provide child care.  YMCA of the Triangle will issue an IRS Form 1099 to Complainant for this payment.  YMCA of the Triangle 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.
26. Every six months, for the duration of this Agreement, the YMCA of the Triangle will provide the United States written monitoring reports that include activities described in Paragraphs 16-24.  Upon request, YMCA of the Triangle will provide the United States all documentation underlying or related to the reports of YMCA of the Triangle's compliance with this Agreement.  YMCA of the Triangle shall send their written monitoring reports via electronic mail to the United States (to the attention of charlotte.lanvers@usdoj.gov or other person specified by the United States) or via Federal Express to:

    Disability Rights Section
    Civil Rights Division
    U.S. Department of Justice
    Charlotte Lanvers
    1425 New York Ave., NW
    Washington, DC  20005        
    [DJ # 202-54-148]

27. If any issues arise that affect the anticipated completion dates set forth in those Paragraphs, YMCA of the Triangle 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 constitutes a violation of this Agreement. 

OTHER PROVISIONS

28. In consideration for the Agreement set forth above, the United States will close its investigation of DJ # 202-54-148.
29. The United States may review YMCA of the Triangle's 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 U.S. District Court to enforce this Agreement and/or title III of the ADA. 
30. Failure by the United States to enforce any provision in this Agreement is not a waiver of its right to enforce any provision of this Agreement.
31. 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 YMCA of the Triangle 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.
32. This Agreement is binding on YMCA of the Triangle, including all principals, agents, executors, administrators, representatives, employees, successors in interest, beneficiaries, and assignees.  In the event that YMCA of the Triangle 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, YMCA of the Triangle 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.
33. The signatory for YMCA of the Triangle represents that he is authorized to bind YMCA of the Triangle to this Agreement.
34. This Agreement constitutes the entire agreement between the United States and YMCA of the Triangle 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.
35. This Agreement does not constitute a finding by the United States that YMCA of the Triangle is in full compliance with the ADA.  This Agreement is not intended to remedy any other potential violations of the ADA or any other law that is not specifically addressed in this Agreement, including any other claims for discrimination on the basis of type 1 diabetes.  Nothing in this Agreement relieves YMCA of the Triangle of its obligation to fully comply with the requirements of title III of the ADA.
36. YMCA of the Triangle shall not discriminate or retaliate against any person because of his or her participation in this matter.

EFFECTIVE DATE/TERMINATION DATE

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