SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES OF AMERICA
AND YOUTH AND FAMILY SERVICES, UNDER TITLE III OF THE ADA
D.J. No. 202-69-41

Background

1. The Parties to this Settlement Agreement are the United States of America and Youth & Family Services, Incorporated (“YFS”), located in Rapid City, South Dakota.
2. YFS provides educational and recreational activities to girls, ages 6-17, after school and each weekday during the summer months through a program called Girls Incorporated (“Girls Inc.”)
3. This matter was initiated by a complaint from a parent of a child with Type I diabetes (also known as insulin dependent diabetes) alleging that Girls Inc. refused to accommodate her child with certain aspects of the child’s diabetes management, in violation of title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181-12189, and its implementing regulation, 28 C.F.R. Part 36. Based on the complaint, the United States initiated an investigation of Girls Inc.’s treatment of children with diabetes.
4. The United States and YFS have reached an agreement that is in the parties’ best interests, and the United States believes is in the public interest, to resolve this matter. The Parties have therefore voluntarily entered into this Settlement Agreement, as set forth below.
5. This Agreement applies to YFS and its programs.

Title III Coverage and Investigation

6. The United States, through the Attorney General, is responsible for 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 ADA prohibits discrimination on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation. 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201.
8. 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), 12182(b)(1)(E); 28 C.F.R. §§ 36.202(a), 36.205. 
9. The ADA prohibits a public accommodation from failing 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 unless the public accommodation can demonstrate that the modifications would constitute a fundamental alteration to the nature of the public accommodation’s goods, services, facilities, privileges, advantages, or accommodations. 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 management 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.
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), 12212; 28 C.F.R. §§ 36.502, 503, 506.
11. YFS is a private entity that owns, leases (or leases to), or operates places of public accommodation, including day care and after care centers used for its various programs.  42 U.S.C. § 12181(6); 28 C.F.R. § 36.104.  YFS is thus a public accommodation within the meaning of 42 U.S.C. § 12181(7)(K) and (L) and 28 C.F.R. § 36.104, and is subject to title III of the ADA.
12. Type I diabetes is 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, type I diabetes is a disability within the meaning of 42 U.S.C. § 12102; 28 C.F.R. § 36.105(a)(1)(i).
13. During the course of the investigation, the United States determined that Girls Inc. does not provide assistance with diabetes management, including insulin administration, to children with type I diabetes, thereby failing to make reasonable modifications to policies, practices, and procedures when necessary to ensure participation in the goods and services of YFS programming, including Girls Inc.

Actions to Be Taken by YFS

14. YFS will comply with the requirements of title III of the ADA, 42 U.S.C. § 12182, and its implementing regulation, 28 C.F.R. Part 36.
15. YFS will not discriminate against an individual on the basis of disability in the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations. 42 U.S.C. §§ 12182(a); 28 C.F.R. §§ 36.201, 36.205.
16. YFS will evaluate each request for reasonable modification on an individualized basis, based on objective evidence and current medical standards, and in a manner consistent with the terms of this Agreement. If YFS is able to demonstrate that a particular request for reasonable modifications would fundamentally alter the nature of its programs and services, it should consider whether other reasonable modifications would be suitable for the individual with a disability. 
17. YFS agrees that where a parent or guardian ¹ and a child’s physician or other qualified health professional deem it appropriate (based on the child’s current health status) for a child to be assisted in diabetes management by a layperson, that training child care staff members to assist with routine diabetes management tasks, including the administration of insulin by pen, syringe, or pump, is generally a reasonable modification under the ADA unless the individual circumstances cause a fundamental alteration to the nature of the program’s services. See 42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302.
18. ADA Coordination. Within thirty (30) days of the effective date of this Agreement, YFS will designate an individual who will have responsibility for monitoring compliance with this Agreement, including ensuring that YFS adopts and implements the policies and procedures set forth in Paragraph 19, below. YFS will provide such individual with sufficient authority, training, 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. YFS will maintain records regarding the review of all denied reasonable modification requests and all decisions to exclude a child with a disability from enrollment.
19. Modification of Policies and Procedures: Within sixty (60) days of the effective date of this Agreement, YFS will submit to the United States, for review and approval, written policies and procedures regarding YFS’s obligations under title III of the ADA, to be adopted and implemented by all YFS programs. YFS will adopt and implement the revised policies and procedures within thirty (30) days of the United States’ approval. YFS policies will, at a minimum, include the following:
1. A nondiscrimination policy that states: (i) YFS does not discriminate in the provision of services to children with disabilities, including children with diabetes, in all YFS programs, including but not limited to child care, camps, before- and after-school programs, classes, and recreational programs; and (ii) the provision of reasonable modifications, including diabetes management, is not limited to urgent, non-routine situations. The nondiscrimination policy will be publicized on YFS’s website and in its handbooks, and disseminated with application materials provided to parents of prospective enrollees.
2. Information for parents of children with disabilities, explaining how to request modifications to YFS’s policies, practices, and procedures with respect to child care services. This information will be publicized on YFS’s website and in its handbooks, and disseminated with application materials provided to parents of prospective enrollees.
3. A sample Diabetes Medical Management Plan (DMMP) that is consistent with the National Diabetes Education Program’s Sample Diabetes Medical Management Plan: https://www.niddk.nih.gov/health-information/communication-programs/ndep/health-professionals/helping-student-diabetes-succeed-guide-school-personnel/tools-for-effective-diabetes-management. A link to the sample DMMP will be included on YFS’s website and disseminated with application materials provided to parents of prospective enrollees with diabetes.
20. Upon receiving a request for a modification, YFS will conduct an individualized assessment of the child’s needs resulting from his/her disability. This assessment will include, where appropriate, initiating a discussion with the parent(s) to explore what modification(s) may be available.  
1. Following the discussion, YFS may:
1. Grant the request;
2. Make a narrowly tailored request in writing for more information relating to the child’s necessary modifications(s); or
3. Deny the request, in whole or in part, where, consistent with this Agreement and the ADA, YFS can demonstrate that making the requested modification will result in a fundamental alteration.
2. YFS will respond in writing to any individual making a request for reasonable modification within seven (7) days from the date the request is received.
3. If a request for reasonable modification is denied per Paragraph 20(a)(iii), YFS will notify the child’s parent(s), in writing, of the specific reason(s) for the denial and advise the individual making the request that, if circumstances change, they may make a new request. Copies of such denials, and related documents, must be maintained by YFS and provided to the United States in YFS’s report required by Paragraph 24 of this Agreement.
4. Within seven (7) business days of a decision to deny admission to a child with a disability (where YFS knew that the child had a disability) or deny a requested modification of polices, practices, or procedures based on a child’s disability, the individual responsible for monitoring compliance with this Agreement will provide to the United States the documents related to the decision, as indicated in Paragraph 20(c); the identities of all individuals who participated in the decision; and all reasons underlying the decision. This information will be sent by overnight mail to the address specified in Paragraph 24 or by email.
21. Publication/Dissemination of Nondiscrimination Policy: Within thirty (30) days from the date upon which YFS implements the policies and procedures set forth in Paragraph 19, YFS will publicize the policies and procedures by distributing them to all associated programs.
22. Training for Individuals Authorized to Evaluate Requests for Reasonable Modifications: Within sixty (60) days after the Effective Date of this Agreement, YFS will provide training to all employees and volunteers with responsibility for granting or denying enrollment and/or considering requests for reasonable modification.
1. The training will address, at a minimum, the following:
1. The requirements of title III of the ADA;
2. The existence and general content of this Agreement;
3. YFS’s nondiscrimination obligations under the ADA, including the obligations outlined in this Agreement;
4. Diabetes and topics related to aspects of caring for a child with insulin dependent diabetes including information on how to administer insulin.
2. 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.
3. YFS will maintain attendance logs reflecting the name and title of each individual who attends the training required by Paragraph 22.
23. Child-Specific Training. In addition to the training required by Paragraph 22 of this Agreement, YFS will ensure that, as necessary to individual circumstances, each of its programs, working with the parent(s), provides Child Specific Training to appropriate employees where necessary to afford a child with a disability the full and equal enjoyment of the program. In the context of insulin dependent diabetes, this training would typically include, among other things, training on blood sugar testing; administration of insulin though pen, syringe, or pump; administration of the emergency drug Glucagon; and a refresher on practicing universal precautions.
24. Every year for the duration of this Agreement, YFS will provide the United States written monitoring reports that include activities described in Paragraphs 18-23.  Upon request, YFS will provide the United States all documentation underlying or related to the reports of YFS’s compliance with this Agreement. YFS will send their written monitoring reports via electronic mail to Alison.Ramsdell@usdoj.gov or other person specified by the United States, or via Federal Express to: U.S. Attorney’s Office, Alison Ramsdell, 325 S. First Ave., Sioux Falls, SD 57104.
25. If any issues arise that affect the anticipated completion dates set forth in those Paragraphs, YFS 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.
26. Within thirty (30) calendar days of the Effective Date of this Agreement, YFS will pay $2,000 to the Complainant, as authorized by 42 U.S.C. § 12188(b)(2)(B) and 28 C.F.R. § 36.504(a)(2), to compensate her for the harm that she has endured (including actual damages, emotional distress, pain and suffering, and other consequential injuries).

Implementation and Enforcement

27. Enforcement. As consideration for the Agreement set forth above, the United States will not institute any civil action under the ADA based on the allegations in this matter, except as provided in Paragraph 28 below.
28. Compliance Review and Enforcement. The United States may review YFS’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 will raise its concerns with YFS and the parties will attempt to resolve the concerns in good faith. If the parties are unable to reach a satisfactory resolution of the issue(s) raised within thirty (30) days of the date that the United States provides notice to YFS, the United States may institute a civil action against YFS in the appropriate United States District Court to enforce this Agreement or title III of the ADA. 
29. Effective Date. The Effective Date of this Agreement is the date of the last signature below.
30. Term. The duration of this Agreement will be two (2) years from the Effective Date.
31. Entire Agreement. This Agreement constitutes the entire agreement between the United States and YFS 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 any attachments, will be enforceable.
32. Non-Waiver. 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 provision of the Agreement.
33. Severability. If any term of this Agreement is determined by any court to be unenforceable, the other terms of this Agreement will 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 YFS will engage in good faith negotiations 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.
34. Binding Nature of Settlement Agreement. This Agreement will be binding upon YFS, including all principals, agents, executors, administrators, representatives, employees, successors in interest, beneficiaries, and assignees. In the event YFS 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, YFS 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.
35. Authority. The signatories represent that they have the authority to bind the respective parties identified below to the terms of this Agreement.
36. Other Violations. This Agreement is not intended to remedy any other potential violations of the ADA or any other law. 
37. Continuing Responsibility. This Agreement does not affect YFS’s continuing responsibility to comply with all aspects of the ADA.