1 CYNTHIA J. LARSEN (State Bar No. 123994) TIMOTHY J. LONG (State Bar No. 137591) 2 JENNIFER P. BROWN (State Bar No. 173439) ORRICK, HERRINGTON & SUTCLIFFE 3 400 Capitol Mall, Suite 3000 Sacramento, California 95814-4407 4 Telephone: (916) 447-9200 5 ARLENE B. MAYERSON (State Bar No. 7931 ILLEGIBLE DIANE J. LIPTON (State Bar No. 120836) 6 DISABILITY RIGHTS EDUCATION AND DEFENS: 2212 Sixth Street 7 Berkeley, California 94710 Telephone: (510) 644-2555 8 Attorneys for Plaintiffs 9 GIL A. ABRAMSON 10 ANDREW C. TOPPING HOGAN & HARTSON LLP. 11 111 S. Calvert Street, Suite 1600 12 Telephone (410) 659-2700 13 Attorneys for Defendant 14 UNITED STATES DISTRICT COURT 15 EASTERN DISTRICT OF CALIFORNIA 16 17 SHERRY ORR; WILLIAM ORR; and ) No. CV-S-95-507 EJG GGH JEREMY ORR, a minor, through ) 18 his guardian ad litem Elaine ) JOINT APPLICATION FOR APPROVAL Huffstutler, ) OF CONSENT DECREE, PROPOSED 19 ) SETTLEMENT AND VOLUNTARY Plaintiffs, ) DISMISSAL WITH PREJUDICE 20 ) v. ) Date: September 22, 1995 21 ) Time: 9:00 a.m. ) Courtroom: Judge Edward J. 22 KINDERCARE LEARNING CENTERS, ) Garcia INC., ) 23 ) Defendant. ) 24 ) 25 Pursuant to Federal Rule of Civil Procedure Section 26 41(a)(2) and Local Rule 202, Plaintiffs Sherry Orr, William Orr 27 and Jeremy Orr, a minor child, by and through his guardian ad 28 litem (collectively "Plaintiffs"), and Defendant KinderCare 1 Learning Centers, Inc. ("KinderCare") hereby submit this Joint 2 Application for Approval of Consent Decree, Proposed Settlement 3 and Voluntary Dismissal With Prejudice (the "Application"). 4 I. 5 INTRODUCTION 6 The Court is familiar with the facts underlying the 7 Plaintiffs' claims in this case. Briefly, Jeremy Orr ("Jeremy"), 8 a ten-year-old boy with tuberous sclerosis, has attended 9 KinderCare's Elk Grove center since September 1994. In February 10 1995, KinderCare gave William and Sherry Orr 30 days notice of 11 KinderCare's intent to disenroll Jeremy from its after-school 12 program on the grounds that KinderCare could not meet Jeremy's 13 individualized needs in a group-care setting. On March 16, 1995, 14 Jeremy and his parents filed a complaint against KinderCare 15 alleging discrimination under Title III of the Americans With 16 Disabilities Act ("ADA") and two state law statutes, California 17 Civil Code sections 51 and 54.1, as well as a motion for a 18 preliminary injunction. On June 2, 1995, this Court granted, in 19 part, Plaintiffs' motion for a preliminary injunction and 20 KinderCare was ordered to retain Jeremy at its Elk Grove center 21 pending the resolution of the merits of the case. 22 Approximately seven weeks ago, the parties entered into 23 settlement negotiations. By virtue of these negotiations, the 24 parties reached an agreement as to the terms of the settlement on 25 September 6, 1995. This Application sets forth the terms of the 26 Consent Decree and Settlement Agreement agreed to by the parties 27 and discusses the matters required by Local Rule 202(b) and (c). 28 /// 2 1 II. 2 THE TERMS OF THE SETTLEMENT AGREEMENT, CONSENT DECREE AND DISMISSAL ORDER 3 4 The non-confidential terms of the Settlement Agreement 5 signed by the parties is attached hereto as Exhibit A. Because 6 certain terms of the Settlement Agreement are confidential, they are 7 being submitted to the Court under seal and attached hereto as 8 Exhibit B. The Consent Decree, which incorporates relevant portions 9 of the Settlement Agreement, is attached hereto as Exhibit C. 10 Finally, a proposed Order granting this Application and dismissing the 11 case with prejudice pursuant to Federal Rule of Civil Procedure 12 41(a)(2) is attached hereto as Exhibit D.1 As part of the 13 settlement, the parties request that the Court retain jurisdiction in 14 order to enforce provisions of the Consent Decree. See Kokkonen v. 15 Guardian Life Ins. Co., 114 S. Ct. 1673 (1994); Hagestad v. Tragesser 16 49 F.3d 1430 (9th Cir. 1995). 17 III. 18 MATTERS TO BE DISCLOSED PURSUANT TO LOCAL RULE 202 19 A. The Age and Sex of the Minor 20 Jeremy is a nine-year-old boy. 21 B. The Nature of the Causes of Action to Be Settled 22 The complaint Jeremy and his parents filed against 23 KinderCare contains causes of action under Title III of the ADA 24 and sections 51 and 54.1 of the California Civil Code. 25 /// 26 /// 27 28 1 Exhibits C and D are also being submitted to the Court in 3 1 C. Circumstances Out of Which the Causes of Action Arose 2 Jeremy is a nine-year-old boy who suffers from tuberous 3 sclerosis, a developmental disability which causes mental 4 retardation, low vision and mild seizures.2 Jeremy needs 5 assistance eating, walking and interacting with other persons. 6 In addition, he cannot talk and is not toilet-trained. Since 7 both of Jeremy's parents work full time, he needs care during and 8 after school. During school hours, between 8:30 a.m. and 2:30 9 p.m., Jeremy attends a special education program at an Elk Grove 10 elementary school. In September 1994, Jeremy's parents enrolled 11 Jeremy in the after-school daycare program at KinderCare Elk 12 Grove for approximately three hours per day, from 2:30 p.m. to 13 5:30 p.m. Since he was enrolled in KinderCare in September 1994, 14 Jeremy has been placed in the two-year-old room. 15 KinderCare Learning Centers, Inc. is a provider of 16 daycare services, with 1200 locations throughout the United 17 States. The centers located in California are licensed by the 18 State of California. KinderCare provides part-time and full-time 19 daycare programs in a group setting for children aged six weeks 20 through five years. In addition, KinderCare offers an after- 21 school daycare program, also in a group setting, for children 22 aged five years through twelve years attending local elementary 23 schools. 24 While no aide or additional staff member was sought by 25 or offered to Jeremy as a condition of his enrollment, Jeremy's 26 27 2 This recitation of the circumstances out of which the causes of action arose is taken in large part from the Court's 28 Memorandum Opinion and Order issued on June 9, 1995. 4 1 parents initiated discussions with KinderCare and Alta California 2 Regional Center ("Alta") to explore the possibility of providing 3 an aide at state expense to attend the KinderCare program with 4 Jeremy. The aide would change Jeremy's diapers and generally 5 assist him as needed to facilitate his participation in the 6 program. At all times Alta has been willing and able to either 7 reimburse KinderCare for the cost of an aide hired by KinderCare 8 to assist Jeremy, or provide an aide at no cost to KinderCare 9 through a contract with the United Cerebral Palsy Association. 10 On February 17, 1995, KinderCare gave the Orrs 30 days 11 notice of KinderCare's intent to disenroll Jeremy from the 12 program on the grounds that KinderCare could not meet Jeremy's 13 individualized needs in a group care setting. 14 D. Manner in Which Compromise Amount Was Determined 15 The parties entered into settlement negotiations 16 approximately seven weeks ago. As a result of these 17 negotiations, Plaintiffs obtained portions of the nonmonetary 18 relief sought in their Complaint against KinderCare. In 19 addition, KinderCare agreed to pay Plaintiffs a monetary sum 20 which the parties have agreed to keep confidential.3 Plaintiffs 21 will place the proceeds of the settlement in a custodial account 22 or accounts to be used for the benefit of Jeremy. 23 E. Employment of Plaintiffs' Counsel 24 The Plaintiffs retained two law firms to litigate this 25 matter: Disability Rights and Education Defense Fund and Orrick, 26 Herrington & Sutcliffe. Plaintiffs' counsel has no relationship 27 28 3 The monetary settlement is set forth in detail in Exhibit B. 5 1 with KinderCare's counsel. Pursuant to the parties' Settlement 2 Agreement, Plaintiffs' counsel will receive attorneys' fees and 3 costs in amounts set forth in Exhibit B. Plaintiffs' counsel 4 will not receive either of these amounts until the Court has 5 approved the parties' settlement. 6 III. 7 CONCLUSION 8 The parties believe that the terms of the settlement 9 are fair and equitable and in the best interests of all 10 concerned, including Jeremy. The parties respectfully request 11 that the Court approve this settlement on the terms set forth in 12 the accompanying documents. 13 Dated: September 8, 1995 CYNTHIA J. LARSEN TIMOTHY J. LONG 14 JENNIFER P. BROWN ORRICK, HERRINGTON & SUTCLIFFE 15 16 By Cynthia J. Larsen 17 Attorneys for Plaintiffs 18 Dated: September 8, 1995 ARLENE B. MAYERSON 19 DIANE J. LIPTON DISABILITY RIGHTS EDUCATION 20 AND DEFENSE FUND, INC. 21 By 22 Arlene Mayerson Attorneys for Plaintiffs 23 24 Dated: September 11, 1995 GIL A. ABRAMSON ANDREW C. TOPPING 25 HOGAN & HARTSON LLP. 26 By 27 Gil A. Abramson Attorneys for Defendant 28 6 SETTLEMENT AGREEMENT AND MUTUAL RELEASE This Settlement Agreement and Mutual Release ("Agreement") is made by and between KinderCare Learning Centers, Inc. ("KinderCare") and Sherry A. Orr, William Orr and Jeremy Orr, a minor, through his guardian ad litem Elaine Huffstutler (collectively "the Orrs"). WHEREAS, KinderCare and the Orrs desire to fully resolve the pending action styled Sherry A. Orr, William Orr and Jeremy Orr, a minor, through his guardian ad litem Elaine Huffstutler v. KinderCare Learning Centers, Inc., Civil Action No. S-95-507 EJG/GGH, filed in the United States District Court for the Eastern District of California, in full and complete accord and satisfaction of this action and all matters relating to the subject matter thereof. NOW, THEREFORE, for and in consideration of the mutual promises and releases as set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, KinderCare and the Orrs agree as follows: 1. Jeremy Orr will be allowed to attend and receive child care in KinderCare's after-school program until he has reached the upper-age limit for which KinderCare provides care for any child, which is currently the completion of twelve years of age, and, during that time period, he will be included in KinderCare's activities as required by Paragraph 3 of Judge Edward J. Garcia's Order dated June 9, 1995, which provides: "KinderCare shall make available to Jeremy Orr, to the extent practicable, all opportunities that are made available to other children attending the after school daycare program at the Elk Grove center." It is understood that Jeremy Orr will comply with KinderCare's rules and that he will have the same rights as other children at KinderCare except that Jeremy has the rights provided by the Americans With Disabilities Act ("ADA") and Sections 51 and 54.1 of the California Civil Code or regulations or law thereunder and as provided herein. 2. Jeremy Orr will be allowed to attend KinderCare not only after school but also during school breaks, holidays, vacations, minimum days, or at any other time when his regular special education classroom is not open during school hours. 3. Jeremy Orr will be permitted to attend KinderCare with a personal assistant not funded by KinderCare provided that an agreement with KinderCare is in place with any agency providing a personal assistant (or in lieu of said agreement, a Certificate of Insurance provided by said agency is provided to KinderCare) that said agency will provide liability insurance in the amount of $1,000,000 (or for the same amount as the general liability coverage maintained by KinderCare, whichever is lower) to indemnify KinderCare for liability to third parties in connection with the personal assistant (in the event that such agency ceases to provide the coverage specified in this paragraph, the Orrs agree to arrange with such agency providing a personal assistant that the agency shall notify the Orrs if and when the amount of insurance coverage is below the amount specified in this paragraph and to inform KinderCare expeditiously in writing of such notification by such agency, and KinderCare will determine fairly, reasonably and in good faith whether such insurance is sufficient for the purposes of this provision), that the personal assistant meets all applicable state standards for care of a child by a person providing the type of service that the personal assistant will provide to Jeremy, that the personal assistant will not be an employee or independent contractor of KinderCare, and that the personal assistant will be subject to the overall supervision of KinderCare while he or she is present at KinderCare with Jeremy as Jeremy's personal assistant. If KinderCare receives a notice of Noncompliance or a notice that an Accusation or any written notice or document - 2 - having a similar legal effect will be issued by the licensing or similar authorities in connection with the presence or conduct of the personal assistant, the parties agree that the Orrs will provide a different personal assistant until the problem is resolved or, if they do not, that Jeremy Orr will attend without a personal assistant. It is understood that applicable licensing ratio requirements will be met by KinderCare independent of the presence of the personal assistant. It is also understood that KinderCare will not be required to make programmatic changes on account of the personal assistant's presence except as the ADA and Sections 51 and 54.1 of the California Civil Code may require with respect to persons with disabilities, and that the personal assistant will function as Jeremy's personal assistant and will not be permitted or required to provide any services to other children. 4. Following the entry of the Consent Decree, William and Sherry Orr and KinderCare/Elk Grove will have a meeting, which shall occur as expeditiously as possible, to discuss the personal assistant's presence and services, and Jeremy Orr will then be permitted to attend KinderCare in the 6-12 room during such hours as that room is in session. For hours that the 6-12 room is not in session, Jeremy Orr may attend in another classroom. It is understood that Jeremy Orr will be required to attend the 6-12 room with a personal assistant for the first 45 days only. Jeremy Orr may at any time he is at KinderCare attend the two year old room without a personal assistant. The parties agree that KinderCare will not insist as a condition of Jeremy's attendance at KinderCare that Jeremy attend KinderCare with a personal assistant. The Orrs understand that, if Jeremy does not attend the 6-12 room with a personal assistant, KinderCare has not undertaken to involve him in 6-12 room activities as fully as he would be involved with a personal assistant. - 3 - 5. KinderCare and the Orrs will have meetings no less than monthly to discuss Jeremy's participation at KinderCare, which may, at the Orrs' option, be attended by an inclusion specialist. KinderCare will permit an individual designated by the Orrs and trained in integrating special needs children to observe Jeremy upon reasonable notice prior to each such visit at KinderCare and to provide advice to KinderCare management in integrating Jeremy at the meetings referenced in this paragraph. It is understood that such visits will be planned so as not to be unreasonably intrusive to KinderCare. 6. KinderCare agrees to discontinue policies, practices and procedures inconsistent with the terms hereof or involving special enrollment requirements for the enrollment of children with disabilities at its Elk Grove facility and has certified that each of its Elk Grove staff has read The ADA and KinderCare. 7. The parties agree to file with the United States District Court for the Eastern District of California a Consent Decree which shall incorporate Paragraphs 1 through 6 herein and shall do so jointly upon the execution of this Agreement. KinderCare will be given the opportunity to participate in all court proceedings in connection with the approval of the Consent Decree and any minor's settlement and each party shall notify the other twenty-four (24) hours in advance of any other court filing in connection with the approval of the Consent Decree and any minor's settlement. In the Consent Decree to be filed with the Court, the parties will request the Court to enter the Consent Decree as a decree and Order of the Court enforceable, inter alia, through the contempt powers of the Court, and further request that the Court retain continuing jurisdiction to enforce the terms of the Consent Decree subsequent to dismissal of the pending action. The parties agree that the Consent Decree will terminate upon the earlier of Jeremy Orr reaching the upper-age limit for attendance at KinderCare, which is currently the - 4 - completion of twelve years of age, or if Jeremy's attendance at KinderCare ceases, except that if any such cessation is temporary, the Consent Decree will not terminate. If William and Sherry Orr consider a cessation in attendance to be temporary, they must advise KinderCare of such in writing and KinderCare will be bound by such notice. 8. It is understood and agreed that KinderCare has and continues to deny any and all liability with respect to the allegations made in the Complaint and that nothing in this Agreement, including the payment of any sums by KinderCare, constitutes an admission by KinderCare of any such wrongdoing, or liability, or otherwise constitutes a violation of the ADA or Sections 51 or 54.1 of the California Civil Code. 9. The provisions of this paragraph are confidential and have been filed with the Court under seal as Exhibit B to the Joint Application for Approval of Consent Decree, Proposed Settlement and Voluntary Dismissal With Prejudice ("Joint Application"). 10. The provisions of this paragraph are confidential and have been filed with the Court under seal as Exhibit B to the Joint Application. 11. The provisions of this paragraph are confidential and have been filed with the Court under seal as Exhibit B to the Joint Application. 12. This Agreement shall constitute, and in executing this Agreement the parties hereby enter into, a full release as to any and all claims, including cross-claims or third-party claims, as to any and all events, actions, or matters that were or could have been raised in the above-referenced action Sherry A. Orr, William Orr and Jeremy Orr, a minor, through his guardian ad litem Elaine Huffstutler v. KinderCare Learning Centers, Inc., as well as all other disputes or controversies arising from any and all transactions or relationships between or among them, occurring through the date of this Agreement, and except - 5 - as to the rights and obligations created by the Agreement, the parties hereby fully and forever release and discharge each other, their parents, subsidiaries, successors, predecessors, affiliates, agents, directors, trustees, officers, employees, members, attorneys and assigns, both past and present, from all claims, causes of action, losses, liabilities, and demands of any kind whatsoever, whether or not accrued, whether contingent or otherwise, whether liquidated or unliquidated, and whether known or unknown. Each party is aware that it may hereafter discover claims or facts in addition to or different from those it now knows or believes to be true with respect to the other parties to this Agreement. Nevertheless, it is the intention of the parties to fully, finally, and forever settle and release all matters relating to each other, and all claims related thereto, which do now exist or may heretofore have existed between them. In furtherance of such intention, the releases given herein shall be and shall remain in effect as full and complete releases of all such matters notwithstanding the discovery or existence of any additional or different claims or facts related thereto. 13. Simultaneous with the execution of this Agreement, the Orrs agree to file with the United States District Court for the Eastern District of California, a Stipulation for Voluntary Dismissal with Prejudice of all of their claims raised in the litigation styled Sherry A. Orr, William Orr and Jeremy Orr, a minor, through his guardian ad litem Elaine Huffstutler v. KinderCare Learning Centers, Inc. 14. The Orrs agree to maintain on a confidential basis the monetary amounts set forth in the paragraphs numbered 9, 10 and 11 in Exhibit B to the Joint Application; provided, however, that the amounts set forth in Exhibit B to the Joint Application may be disclosed in settlement negotiations in other cases in which Orrick, Herrington & Sutcliffe and/or the Disability Rights Education Defense Fund (hereinafter "DREDF") are counsel of record. Orrick, Herrington & - 6 - Sutcliffe and DREDF agree to request, but cannot require, that counsel receiving such information maintain its confidentiality. The parties further agree that if the United States District Court for the Eastern District of California requires filing of this Agreement, that monetary amounts set forth in the paragraphs numbered 9, 10 and 11 in Exhibit B will be filed with the Court under seal. 15. The persons executing this Agreement represent and warrant that they are duly and validly authorized to do so, and that all requisite corporate action has been obtained and that no further action is necessary to make this Agreement and all transactions contemplated hereby valid and binding upon each of the parties hereto in accordance with the terms hereof. 16. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns. 17. This Agreement is, and is intended by the parties to be, an integrated agreement, setting forth all of the promises, undertakings, understandings, and warranties that have been made with respect to the matters to which reference is made above or below. There are no other promises, understandings, or warranties by or between the parties relating to any of these matters. No representation or promise pertaining to this Agreement, or the subject matter thereof, shall be binding upon any of the parties hereto except as expressly provided herein. 18. Each party has received independent legal advice from its attorneys with respect to the advisability of making the settlement provided for herein and with respect to the advisability of executing this Agreement. 19. Except as expressly provided in this Agreement, no party (nor any officer, agent, employee, representative or attorney of or for any party) has made any statement or representation to any other party regarding any fact relied upon in entering into this Agreement, and each party does not rely upon any - 7 - statement, representation or promise of any other party (or any officer, agent, employee, representative or attorney of or for any other party) in executing this Agreement or in making the settlement provided for herein. 20. Each party to this Agreement has made such investigation of the facts pertaining to this Agreement and of all the matters pertaining hereto, as it deems necessary. 21. Each party or representative has read this Agreement and understands the contents hereof. 22. Each party represents and warrants that this Agreement is entered into in good faith and will be performed in all respects in good faith. 23. This Agreement may be executed in duplicate counterparts. 24. This Agreement shall become effective and shall be binding upon the parties hereto only upon complete execution of the Agreement. 25. The parties shall execute any further additional instruments and they shall perform any acts which may become necessary in order to effectuate and carry out the purposes of this Agreement. 26. The provisions of this Agreement are severable. If any provision of this Agreement is deemed overbroad by a tribunal of competent jurisdiction, such provision shall be narrowed by the tribunal as necessary for the provision to become enforceable and complied with applicable law. If any provision of this Agreement is found to be invalid, illegal, void or unenforceable, such provision will be regarded as stricken from the Agreement and will not affect the validity of enforceability of the remainder of the Agreement. 27. This Agreement shall be interpreted in accordance with the laws of the State of California, exclusive of its choice of law provisions. - 8 - IN WITNESS WHEREOF, the parties have executed this Settlement Agreement and Mutual Release as of the date(s) set forth below. KINDERCARE LEARNING CENTERS, INC. SHERRY A. ORR By: Title: Date: 9/8/95 Date: WILLIAM ORR JEREMY ORR, a minor, through his guardian ad litem Elaine Huffstutler Date: 9/8/95 Date: 9-8-95 - 9 - IN WITNESS WHEREOF, the parties have executed this Settlement Agreement and Mutual Release as of the date(s) set forth below. KINDERCARE LEARNING CENTERS, INC. SHERRY A. ORR By: Title: Date: Date: WILLIAM ORR JEREMY ORR, a minor, through his guardian ad litem Elaine Huffstutler Date: Date: - 9 - 1 EXHIBIT B 2 3 4 5 6 PARAGRAPHS 9, 10 AND 11 OF THE SETTLEMENT AGREEMENT AND MUTUAL RELEASE ARE BEING FILED SEPARATELY 7 WITH THE COURT UNDER SEAL. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 CYNTHIA J. LARSEN (State Bar No. 123994) TIMOTHY J. LONG (State Bar No. 137591) 2 JENNIFER P. BROWN (State Bar No. 173439) ORRICK, HERRINGTON & SUTCLIFFE 3 400 Capitol Mall, Suite 3000 Sacramento, California 95814-4407 4 Telephone: (916) 447-9200 5 ARLENE B. MAYERSON (State Bar No. 79310) DIANE J. LIPTON (State Bar No. 120836) 6 DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC. 2212 Sixth Street 7 Berkeley, California 94710 Telephone: (510) 644-2555 8 Attorneys for Plaintiffs 9 GIL A. ABRAMSON 10 ANDREW C. TOPPING HOGAN & HARTSON LLP. 11 111 S. Calvert Street, Suite 1600 Baltimore, Maryland 21202 12 Telephone: (410) 659-2700 13 Attorneys for Defendant 14 15 UNITED STATES DISTRICT COURT 16 EASTERN DISTRICT OF CALIFORNIA 17 18 SHERRY ORR; WILLIAM ORR; and ) No. CV-S-95-507 EJG GGH JEREMY ORR, a minor, through ) 19 his guardian ad litem Elaine ) Huffstutler, ) CONSENT DECREE 20 ) Plaintiffs, ) 21 v. ) ) 22 KINDERCARE LEARNING CENTERS, ) INC., ) 23 ) Defendant. ) 24 ) 25 /// 26 /// 27 /// 28 /// 1 I. 2 INTRODUCTION 3 A. Nature of Action 4 1. Plaintiffs Sherry Orr, William Orr and Elaine 5 Huffstutler (collectively "Plaintiffs") commenced this action, 6 Sherry Orr, William Orr, and Jeremy Orr, a minor, through his 7 guardian ad litem Elaine Huffstutler v. KinderCare Learning 8 Centers, Inc., CV-S-95-507, against KinderCare Learning Centers, 9 Inc. ("KinderCare") based on alleged discriminatory treatment of 10 Jeremy Orr in KinderCare's Elk Grove, California facility 11 ("KinderCare Elk Grove"). In their Complaint, Plaintiffs allege 12 that KinderCare has discriminated against Jeremy Orr and his 13 parents on the basis of his disability. 14 B. Jurisdiction 15 2. This Court has jurisdiction over the parties and 16 the subject matter in this action pursuant to 28 U.S.C. S 1331 and 17 42 U.S.C S 12188 for the claims involving the Americans With 18 Disabilities Act of 1990 (the "ADA"). This Court has 19 supplemental jurisdiction over the Plaintiffs' state law claims 20 pursuant to 28 U.S.C. S 1367. The Court retains jurisdiction 21 over the parties and this action for the duration of this Consent 22 Decree, and for entry of such orders as may be necessary to 23 enforce the provisions of the Consent Decree and to carry out the 24 purpose and intent of the parties' agreement as memorialized by 25 the Consent Decree. The parties expressly consent to the Court 26 retaining jurisdiction following dismissal for these purposes. 27 Violations of the Consent Decree may be enforced through, inter 28 alia, the contempt power's of this Court. The Complaint states 2 1 claims which, if proven, could authorize the Court to grant 2 relief against KinderCare under the ADA and the state law claims. 3 C. Purposes of the Consent Decree 4 3. The Plaintiffs and KinderCare have concluded, 5 after considering the risks involved in further litigation and 6 the likelihood that the litigation, if not settled now, will be 7 protracted and expensive, that it would be desirable and in the 8 parties' best interests to settle this action in the manner and 9 upon the terms set forth below. 10 4. The Plaintiffs have entered into this Consent 11 Decree for the following purposes: 12 a. To provide appropriate injunctive and 13 monetary relief with finality for the Plaintiffs regarding 14 disability discrimination; and 15 b. To further promote Jeremy Orr's participation 16 in the after-school program at KinderCare Elk Grove. 17 II. 18 NON-ADMISSION/NON-DETERMINATION 19 5. The Court has made no findings concerning 20 KinderCare's alleged violations of the ADA or sections 51 or 54.1 21 of the California Civil Code. 22 6. By agreeing to and voluntarily entering into this 23 Consent Decree, there is no admission or concession by the 24 Plaintiffs or KinderCare, express or implied, that KinderCare has 25 in any way violated the ADA or sections 51 or 54.1 of the 26 California Civil Code and nothing in this Consent Decree, 27 including the payment of any sums by KinderCare, constitutes an 28 admission by KinderCare of any wrongdoing or liability or 3 1 violation of the ADA or sections 51 or 54.1 of the California 2 Civil Code. This Consent Decree does not contain, and will not 3 be interpreted or construed as containing, any such admission. 4 III. 5 EFFECTIVE DATE AND DURATION OF CONSENT DECREE 6 7. The terms of this Consent Decree will become 7 effective immediately upon its final approval, without 8 modification, by the Court. This Consent Decree will be 9 effective and binding on the parties, as well as to each of the 10 parties' successors or assigns, until the earlier of Jeremy Orr 11 reaching the upper-age limit for attendance at KinderCare, which 12 is currently the completion of twelve years of age, or if Jeremy 13 Orr's attendance at KinderCare ceases, except that if any such 14 cessation is temporary, the Consent Decree will not terminate. 15 If William and Sherry Orr consider a cessation in attendance to 16 be temporary, they must advise KinderCare of such in writing and 17 KinderCare will be bound by such a notice. 18 IV. 19 SCOPE AND EFFECT OF SETTLEMENT 20 8. Jeremy Orr will be allowed to attend and receive 21 child care in KinderCare's after-school program until he has 22 reached the upper-age limit for which KinderCare provides care 23 for any child, which is currently the completion of twelve years 24 of age, and, during that time period, he will be included in 25 KinderCare's activities as required by paragraph 3 of this 26 Court's Order dated June 9, 1995. That paragraph provides as 27 follows: 28 /// 4 1 KinderCare shall make available to Jeremy, to the extent practicable, all opportunities 2 that are made available to other children attending the after school daycare program at 3 the Elk Grove center. 4 It is understood that Jeremy Orr will comply with KinderCare's 5 rules and that he will have the same rights as other children at 6 KinderCare except that Jeremy Orr has the rights provided by the 7 ADA, 42 U.S.C S 12101 et seq., and sections 51 and 54.1 of the 8 California Civil Code, or regulations or law thereunder and as 9 provided herein; 10 9. Jeremy Orr will be allowed to attend KinderCare 11 not only after school but also during school breaks, holidays, 12 vacations, minimum days, or at any other time when his regular 13 special education classroom is not open during school hours; 14 10. Jeremy Orr will be permitted to attend KinderCare 15 with a personal assistant not funded by KinderCare provided that 16 an agreement with KinderCare is in place with any agency 17 providing a personal assistant (or in lieu of said agreement, a 18 Certificate of Insurance provided by said agency is provided to 19 KinderCare) that said agency will provide liability insurance in 20 the amount of $1,000,000 (or for the same amount as the general 21 liability coverage maintained by KinderCare, whichever is lower) 22 to indemnify KinderCare for liability to third parties in 23 connection with the personal assistant (in the event that such 24 agency ceases to provide the coverage specified in this 25 paragraph, the Orrs agree to arrange with such agency providing a 26 personal assistant that the agency shall notify the Orrs if and 27 when the amount of insurance coverage is below the amount 28 specified in this paragraph and to inform KinderCare SCI-93508.1 5 1 expeditiously in writing of such notification by such agency, and 2 KinderCare will determine fairly, reasonably and in good faith 3 whether such insurance is sufficient for the purposes of this 4 provision), that the personal assistant meets all applicable 5 state standards for care of a child by a person providing the 6 type of service that the personal assistant will provide to 7 Jeremy Orr, that the personal assistant will not be an employee 8 or independent contractor of KinderCare, and that the personal 9 assistant will be subject to the overall supervision of 10 KinderCare while he or she is present at KinderCare with Jeremy 11 Orr as Jeremy Orr's personal assistant. If KinderCare receives a 12 notice of Noncompliance or a notice that an Accusation or any 13 written notice or document having a similar legal effect will be 14 issued by the licensing or similar authorities in connection with 15 the presence or conduct of the personal assistant, the parties 16 agree that William and Sherry Orr will provide a different 17 personal assistant until the problem is resolved or, if they do 18 not, that Jeremy Orr will attend without a personal assistant. 19 It is understood that applicable licensing ratio requirements 20 will be met by KinderCare independent of the presence of the 21 personal assistant. It is also understood that KinderCare will 22 not be required to make programmatic changes on account of the 23 personal assistant's presence except as the ADA and sections 51 24 and 54.1 of the California Civil Code may require with respect to 25 persons with disabilities, and that the personal assistant will 26 function as Jeremy Orr's personal assistant and will not be 27 permitted or required to provide any services to other children. 28 /// SCI-93508.1 6 1 11. Following the entry of this Consent Decree, 2 William and Sherry Orr and KinderCare Elk Grove will have a 3 meeting, which shall occur as expeditiously as possible, to 4 discuss the personal assistant's presence and services, and 5 Jeremy Orr will then be permitted to attend KinderCare in the 6- 6 12 room during such hours as that room is in session. For hours 7 that the 6-12 room is not in session, Jeremy Orr may attend in 8 another classroom. It is understood that Jeremy Orr will be 9 required to attend the 6-12 room with a personal assistant for 10 the first 45 days only. Jeremy Orr may at any time he is at 11 KinderCare attend the two-year-old room without a personal 12 assistant. The parties agree that KinderCare will not insist as 13 a condition of Jeremy Orr's attendance at KinderCare that Jeremy 14 Orr attend KinderCare with a personal assistant. William and 15 Sherry Orr understand that, if Jeremy Orr does not attend the 6- 16 12 room with a personal assistant, KinderCare has not undertaken 17 to involve him in 6-12 room activities as fully as he would be 18 involved with a personal assistant. 19 12. KinderCare and William and Sherry Orr will have 20 meetings no less than monthly to discuss Jeremy Orr's 21 participation at KinderCare, which may, at William and Sherry 22 Orrs' option, be attended by an inclusion specialist. KinderCare 23 will permit an individual designated by William and Sherry Orr 24 and trained in integrating special needs children to observe 25 Jeremy Orr at KinderCare upon reasonable notice prior to each 26 such visit at KinderCare and to provide advice to KinderCare 27 management in integrating Jeremy Orr at the meetings referenced 28 /// SCI-93508.1 7 1 in this paragraph. It is understood that such visits will be 2 planned so as not to be unreasonably intrusive to KinderCare; and 3 13. KinderCare agrees to discontinue policies, 4 practices and procedures inconsistent with the terms hereof or 5 involving special enrollment requirements for the enrollment of 6 children with disabilities at KinderCare's Elk Grove facility, 7 and has certified that each of its Elk Grove staff has read 8 KinderCare and the ADA. 9 V. 10 MONETARY PROVISIONS 11 14. The parties agreed to a confidential monetary 12 settlement. 13 VI. 14 MISCELLANEOUS PROVISIONS 15 15. The terms of this Consent Decree, including the 16 Memorandum of Agreement and all documents submitted to the Court 17 relating to this settlement, are the exclusive and final 18 expression of all agreements by the parties with respect to any 19 and all claims by the Plaintiffs in the above-referenced action, 20 Sherry Orr, William Orr and Jeremy Orr, a minor, through his 21 guardian ad litem Elaine Huffstutler v. KinderCare Learning 22 Centers, Inc. The parties accept entry of this Consent Decree 23 based solely upon its terms and not in reliance upon any 24 representations or promises other than those contained in this 25 Consent Decree. 26 /// 27 /// 28 /// SCI-93508.1 8 1 16. None of the parties is bound by any provisions of 2 this Consent Decree until it is signed by authorized 3 representatives of each party and approved by the Court. 4 Dated: September 8, 1995 CYNTHIA J. LARSEN TIMOTHY J. LONG 5 JENNIFER P. BROWN ORRICK, HERRINGTON & SUTCLIFFE 6 7 By Cynthia J. Larsen 8 Attorneys for Plaintiffs 9 Dated: September 8, 1995 ARLENE B. MAYERSON 10 DIANE J. LIPTON DISABILITY RIGHTS EDUCATION 11 AND DEFENSE FUND, INC. 12 By 13 Arlene Mayerson Attorneys for Plaintiffs 14 15 Dated: September 11, 1995 GIL A. ABRAMSON ANDREW C. TOPPING 16 HOGAN & HARTSON LLP. 17 By 18 Gil A. Abramson Attorneys for Defendant 19 20 21 22 23 24 25 26 27 28 SCI-93508.1 9 1 The Court hereby approves and orders the provisions of 2 the foregoing Consent Decree in its entirety. 3 IT IS SO ORDERED. 4 Dated: September 18, 1995 Edward J. Garcia, Judge 5 United States District Court 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SCI-93508.1 10 1 CYNTHIA J. LARSEN (State Bar No. 123994) TIMOTHY J. LONG (State Bar No. 137591) 2 JENNIFER P. BROWN (State Bar No. 173439) ORRICK, HERRINGTON & SUTCLIFFE 3 400 Capitol Mall, Suite 3000 Sacramento, California 95814-4407 4 Telephone: (916) 447-9200 5 ARLENE B. MAYERSON (State Bar No. 79310) DIANE J. LIPTON (State Bar No. 120836) 6 DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC. 2212 Sixth Street 7 Berkeley, California 94710 Telephone: (510) 644-2555 8 Attorneys for Plaintiffs 9 GIL A. ABRAMSON 10 ANDREW C. TOPPING HOGAN & HARTSON LLP. 11 111 S. Calvert Street, Suite 1600 Baltimore, Maryland 21202 12 Telephone: (410) 659-2700 13 Attorneys for Defendant 14 UNITED STATES DISTRICT COURT 15 EASTERN DISTRICT OF CALIFORNIA 16 17 SHERRY ORR; WILLIAM ORR; and ) No. CV-S-95-507 EJG GGH JEREMY ORR, a minor, through ) 18 his guardian ad litem Elaine ) Huffstutler, ) ORDER APPROVING 19 ) JOINT APPLICATION FOR APPROVAL ) OF CONSENT DECREE, PROPOSED 20 Plaintiffs, ) SETTLEMENT AND VOLUNTARY v. ) DISMISSAL WITH PREJUDICE 21 ) ) 22 KINDERCARE LEARNING CENTERS, ) INC., ) 23 ) Defendant. ) 24 ) 25 Plaintiffs Sherry Orr, William Orr and Jeremy Orr, a 26 minor child, by and through his guardian ad litem Elaine 27 Huffstutler, and Defendant KinderCare Learning Centers, Inc., 28 /// 1 acting through their respective counsel of record, have reached a 2 settlement in the above-captioned action. 3 GOOD CAUSE APPEARING THEREFOR, it is hereby ordered 4 that: 5 1. The Joint Application for Approval of Consent 6 Decree, Proposed Settlement and Voluntary Dismissal With 7 Prejudice is approved in its entirety; 8 2. The above-captioned action is dismissed with 9 prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2). 10 The Court retains jurisdiction over this matter following 11 dismissal to enforce the provisions of the aforementioned Consent 12 Decree and to carry out the purpose and intent of the parties' 13 agreement as memorialized in the Consent Decree. 14 3. The monetary portion of the settlement obtained by 15 the Plaintiffs shall be placed in a custodian account or accounts 16 in Jeremy Orr's name and shall be used for the benefit of Jeremy 17 Orr. 18 IT IS SO ORDERED. 19 Dated: September 18, 1995 Edward J. Garcia, Judge 20 United States District Court 21 22 23 24 25 26 27 28 2 SETTLEMENT AGREEMENT UNDER THE AMERICANS WITH DISABILITIES ACT THIS SETTLEMENT AGREEMENT ("Agreement") is made by and among KinderCare Learning Centers, Inc. ("KinderCare"), Jesi Stuthard, by his next friend Patricia Dollison, the American Diabetes Association, the American Diabetes Association, Ohio Affiliate, Inc. (collectively "Plaintiffs"), and the United States of America ("United States"). WHEREAS, on February 26, 1996, Jesi Stuthard by his next friend Patricia Dollison; the American Diabetes Association; and the American Diabetes Association, Ohio Affiliate, Inc., filed an action entitled Jesi Stuthard, a minor child, by Patricia Dollison, his next friend, et al. v. KinderCare Learning Centers, Inc., as Case No. C2-96-0185, in the United States District Court for the Southern District of Ohio, Eastern Division (the "Stuthard Case") alleging, among other claims, that KinderCare had violated Title III of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. SS 12181-89, and Section 4112.02(G) of the Ohio Revised Code, by refusing to monitor the blood glucose levels of Jesi Stuthard and other children with insulin-dependent diabetes; and WHEREAS, KinderCare maintained a policy which allowed children or their parent(s), guardian(s), or authorized agent(s) to monitor the child's blood glucose levels; and WHEREAS, the United States, which is not a party to the Stuthard Case, simultaneously conducted an investigation prompted by two complaints (DJ 202-58-18 and DJ 202-26S-3) which alleged that KinderCare's policies regarding the monitoring and treatment of children with diabetes violated Section 302 of the ADA, 42 U.S.C. S 12182, and the Department of Justice's implementing regulation, 28 C.F.R. SS 36.201(a), 36.202, 36.301(a), and 36.302, and violated the rights of their parent(s) and/or guardian(s) under Section 302(b)(1)(E), 42 U.S.C. S 12182(b)(1)(E), and the Title III regulation, 28 C.F.R. S 36.205; and WHEREAS, the United States and KinderCare agree that resolution of this investigation is in the public interest and that the matters raised therein can be resolved as set forth below; and WHEREAS, KinderCare has and continues to deny any and all liability with respect to the allegations made in the Complaint by the Plaintiffs or the investigation conducted by the United States and nothing in this Agreement, including the payment of any 2 sums by KinderCare, constitutes an admission by KinderCare of any such wrongdoing, or liability, or otherwise constitutes a violation of the ADA and/or the Ohio Revised Code; and WHEREAS, KinderCare and the Plaintiffs desire to resolve the Stuthard Case and all matters relating to the subject matter thereof. NOW, THEREFORE, for and in consideration of the mutual promises and the releases as set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, KinderCare, the Plaintiffs and the United States agree as follows. 1. KinderCare has cooperated fully in the United States' investigation and has demonstrated a commitment to provide its services to persons with disabilities without discrimination. The parties have agreed that this matter can be resolved without resort to further litigation. 2. KinderCare is a public accommodation within the meaning of Title III of the ADA, 42 U.S.C. S 12181(7), and its implementing regulation, 28 C.F.R. S 36.104, as it owns and operates approximately 1,200 child care centers nationwide. 3 3. KinderCare will not refuse to admit any child to any of its programs on the basis that the child has insulin-dependent diabetes or needs blood glucose testing. Prior to a child's enrollment into its program, KinderCare will not inquire specifically whether a child has diabetes or needs diabetes-related care or monitoring. 4. When informed that a child has insulin-dependent diabetes, KinderCare will advise the child's parent(s) or guardian(s) of the KinderCare Policy on Testing Blood Glucose Levels, a copy of which is attached hereto as Exhibit 1 (the "Policy on Testing Blood Glucose Levels") and, when asked to do so, KinderCare will monitor the child's blood glucose levels, including administration of the finger-prick test, in accordance with the Policy on Testing Blood Glucose Levels. 5. In connection with the monitoring of a child's blood glucose levels, KinderCare will take only those actions instructed on the child's Authorization for Care of Children with Insulin-Dependent Diabetes form (the "Authorization Form") executed by the child's physician and parent(s) or guardian(s), which is attached hereto as Exhibit 2 and which shall be provided in substantially the same format as set forth 4 in Exhibit 2. Some of the actions provided for in the Authorization Form include, but are not limited to, the following: (a) Administering certain fast-acting carbohydrates, as supplied by the parent(s) or guardian(s); (b) Administering certain complex carbohydrates as supplied by the parent(s) or guardian(s); (c) Calling "911" or other emergency medical personnel, parent(s) or guardian(s), and the child's doctor in the event of loss of consciousness or seizure or other medical emergency; (d) Providing notification to the parent(s) or guardian(s) of high blood glucose levels; (e) Telephoning the parent(s) or guardian(s) and the child's physician in the event of very high blood glucose levels; (f) Monitoring the child's diet as instructed by the child's physician; and (g) Monitoring the child's recreational activities as instructed by the child's physician. 6. KinderCare will keep records of any test it performs in accordance with its Policy on Testing Blood Glucose Levels for a period of six (6) months 5 from the date of the test. Kindercare will provide copies of these records to the child's parent(s) or guardian(s), upon written request on a form provided by KinderCare when such a request is made, the reasonable copying costs being borne by the parent(s) or guardian(s). 7. Nothing in this Agreement requires KinderCare to administer insulin shots to anyone. 8. Notwithstanding Paragraphs 4 and 5, KinderCare will allow the parent(s) or guardian(s), or authorized agent(s), to enter KinderCare's premises at any time a child is in KinderCare's care, to monitor the child's blood glucose levels and take appropriate action in response to those levels. KinderCare also will allow the child to monitor her or his own blood glucose levels and take appropriate action in response to those levels when the child's parent(s) or guardian(s) have provided KinderCare with written authorization to do so. 9. KinderCare may request the child's parent(s) or guardian(s) to provide KinderCare with, but not limited to, the following: (a) All equipment, food, and substances, not regularly provided by KinderCare, that are necessary for taking any actions described in the 6 child's authorization form or KinderCare's Policy on Testing Blood Glucose Levels; (b) Permission to undertake the steps indicated on the Authorization Form and to respond to any diabetes-related emergency in a manner consistent with those instructions; (c) An executed Release and Waiver of Liability for Testing of Children with Insulin-Dependent Diabetes form, a copy of which is attached hereto as Exhibit 3 (the "Release"). As set forth in the Release and without derogation of its contents, this form releases KinderCare from liability stemming from any action taken with reasonable care by KinderCare's employees and/or agents in conformance with the child's Authorization Form; (d) Complete maintenance and proper disposal of all materials and equipment, including keeping the blood glucose meter in good working order (i.e., cleaning and performing controlled testing per the manufacturer's instructions); and (e) The parties understand and agree that nothing in Paragraph 3 of the Release shall be construed to supersede or replace any provision of this Agreement. 7 10. KinderCare may require the parent(s) or guardian(s) to update the Authorization Form every six (6) months, or sooner if the child's needs change. 11. KinderCare shall admit (and not place on any waiting list) Jesi Stuthard to its child care program at the KinderCare Learning Center at 3860 Hoover Road in Grove City, Ohio, within three (3) days of the effective date of this Agreement or sooner upon execution of all enrollment forms and completion of all enrollment procedures applicable to all children enrolling in a KinderCare program, and shall maintain his enrollment in an age appropriate program consistent with KinderCare's practices and procedures with respect to all children. KinderCare will admit Jesi Stuthard to any other KinderCare facility in accordance with KinderCare enrollment procedures upon request of his parent or guardian and execution of all enrollment forms applicable to all children enrolling in a KinderCare program. 12. KinderCare shall provide disability sensitivity training to KinderCare personnel who have direct contact with children in its centers and/or direct contact with parent(s)/guardian(s) of children enrolled or seeking enrollment in a KinderCare program. This training obligation shall last for a period of not 8 less than three (3) years and will cover, but is not limited to, the following ADA topics: enrollment of children with disabilities who otherwise qualify for admission to KinderCare, including eligibility criteria and the prohibition of surcharges; making reasonable modifications to its policies, practices, and procedures when necessary to integrate children or parent(s)/guardian(s) with disabilities when doing so does not fundamentally alter the nature of its goods and services and would not impose an undue burden upon KinderCare; integrating children with disabilities into its regular program to the maximum extent appropriate for the needs of the child; providing personal services to children with disabilities when personal services are provided to others; providing effective communication to children and parent(s)/guardian(s) with disabilities by furnishing appropriate auxiliary aids and services unless doing so would impose an undue burden or fundamentally alter the nature of KinderCare's goods and services; and removing architectural barriers where readily achievable. 13. In all centers in which children with insulin-dependent diabetes are enrolled or are about to be enrolled, KinderCare will cooperate with the parent(s) or guardian(s) of any such children so that 9 the caregivers at KinderCare may be instructed as to the working of each child's particular blood glucose meter. In addition, KinderCare shall advise all KinderCare staff members at such centers, who in KinderCare's reasonable judgment have a need to know, which children have insulin-dependent diabetes, provide information about the symptoms and signs of hypoglycemia (low blood glucose), and provide training on the procedures to follow in the event of an emergency. 14. Within ten (10) days of the effective date of this Agreement, KinderCare will appoint a Disability Services Coordinator ("DSC") or equivalent to attempt to resolve disability-related issues raised by customers or potential customers as such issues arise. Responses to disability-related questions shall be provided within a reasonable time. 15. Within thirty (30) days of the effective date of this Agreement, and through December 31, 2001, KinderCare will prominently display an announcement at each KinderCare site throughout the country in an area readily visible to employees and existing and potential customers. This announcement will include, but is not limited to, the following: "KinderCare does not discriminate on the basis of disability. 10 KinderCare has appointed a Disability Services Coordinator to attempt to resolve disability- related issues. [name] [address] [toll-free telephone number] (voice and TDD)". This portion of the announcement will appear in no less than 18 point type in a san-serif font and will be printed in such a way that there is a high level of contrast between the background and print colors. 16. Within fourteen (14) days of the effective date of this Agreement, KinderCare will send notices to each of its child care centers within the United States informing them of the substance of this Agreement and requiring the modification of existing information handouts, enrollment materials, and registration forms to bring them into conformity with the policies adopted herein. 17. Within thirty (30) days of the effective date of this Agreement, KinderCare will distribute to each of its child care centers within the United States new information handouts, enrollment materials, and registration forms that state policies in conformity with this Agreement to the extent that existing handouts, materials and forms cannot be modified. Each of these will contain the full statement referenced in 11 Paragraph 15, which will be printed in 10 point type or larger. KinderCare will instruct each center to destroy all unused copies of such printed matters that reflect company policies rendered invalid under this Agreement to the extent that such printed matters cannot be modified. 18. KinderCare has provided to the United States a copy of the ADA and KinderCare Manual. The United States has provided, with respect to said Manual, and will continue to provide informal technical assistance to KinderCare as it develops employee training materials to implement this Agreement, as authorized by 42 U.S.C. S 12206(c)(1). Statements in KinderCare's employee training materials are not binding upon the Department of Justice. 19. KinderCare will instruct each Center Director to consult with the DSC before rejecting any application for enrollment on behalf of a child with a disability to the extent that the Center Director is aware that such child is an individual with a disability within the meaning of the ADA. KinderCare will maintain a record at its corporate headquarters of all such admission inquiries on behalf of children with disabilities, including insulin-dependent diabetes, and 12 the disposition of such inquiries for a period of one (1) year from the date of inquiry. 20. KindeCare agrees to make the payments listed in a separate letter between counsel for the Plaintiffs and KinderCare the provisions of which are and shall remain confidential. The payments shall be made when this Agreement is fully executed by all parties. 21. The United States agrees not to sue KinderCare in conjunction with its investigations of DJ 202-58-18 and DJ 202-26S-3 and on all matters set forth in this Agreement, unless KinderCare violates this Agreement, in which case the United States agrees to provide KinderCare with an opportunity to cure in accordance with Paragraph 25 herein. 22. Patricia Dollison, as next friend of Jesi Stuthard, agrees that she may enforce this Agreement only to the extent that its provisions directly and individually affect Jesi Stuthard's enrollment, finger-prick testing, care and/or continued enrollment at KinderCare. 23. The United States may enforce all provisions of this Agreement. For three (3) years from the effective date of this Agreement, the United States may request KinderCare to provide the government with 13 information or documentation regarding the implementation of any provision or provisions of this Agreement. If KinderCare receives such a request from the United States, it will use its best efforts to provide a complete, written response to the request within ten (10) business days. 24. KinderCare reports that it has approximately 1,200 centers, 22,000 employees, and 120,000 children enrolled nationwide and has a high employee turnover rate. The United States acknowledges that, in view of these factors, KinderCare's good faith efforts to satisfy the employee education provisions and implementation procedures set forth in this Agreement shall satisfy the good faith standard of 42 U.S.C. S 12188(b) (5), notwithstanding that not all KinderCare employees may be fully knowledgeable about the totality of the company's disability-related policies at all times. 25. In the event that the United States believes that KinderCare is not fully complying with the terms of this Agreement, it will so notify KinderCare in writing and will provide KinderCare with an opportunity to cure, pursuant to Executive Order 12778, even if this Executive Order is amended or repealed. The United States and KinderCare shall 14 engage in good faith negotiations to resolve any dispute arising under this Agreement. If, despite good faith negotiations, the United States and KinderCare are unable to resolve the dispute, the United States may institute a civil action in the United States District Court for the Southern District of Ohio to the extent that the dispute is directly with regard to Jesi Stuthard's enrollment, finger-prick testing, care or continued enrollment at KinderCare, and in all other cases in an appropriate Federal district court as authorized by 42 U.S.C. S 12188(b) (2). The United States agrees that any such action to enforce the terms of this Agreement will be based solely upon KinderCare's actions after the effective date of this Agreement. 26. Failure by the United States to enforce this entire Agreement or any provision hereof with regard to any deadline or any other provision herein shall not be construed as a waiver of its right to do so with regard to other deadlines and provisions of this Agreement. 27. The American Diabetes Association and the American Diabetes Association, Ohio Affiliate, Inc., may enforce the provisions of this Agreement only 15 to the extent that they pertain to children with insulin-dependent diabetes. 28. The parties to the Stuthard Case shall file a joint motion with the Court requesting that the Court dismiss the suit with prejudice provided, however, that in any subsequent lawsuit to enforce this Agreement, neither KinderCare nor Plaintiffs will oppose a request to the Court for expedited procedures to resolve the dispute. 29. This Agreement does not purport to remedy any other potential violations of the ADA not directly addressed in this Agreement. Nothing in this Agreement affects or relieves KinderCare of its responsibility to comply with any other Federal, State, or local law or regulation. Except as set forth herein, nothing in this Agreement is intended or shall be construed as a waiver by the United States of any right to institute any proceeding or action against KinderCare for any past, present, or future violations of any statutes, rules, or regulations administered by the United States. 30. Nothing in this Agreement is intended to cause KinderCare to violate the provisions of any state or local law; provided, however, that in the event KinderCare becomes aware of a state or local law or 16 ordinance that prohibits KinderCare from monitoring the blood glucose levels of children with insulin-dependent diabetes enrolled in its program and so notifies the United States in writing, the United States will refrain from enforcing the Agreement with respect to the centers covered by the state or local law at issue for a period of sixty (60) days or until the United States and/or state and local officials resolve the matter. None of the parties to this Agreement is aware of any state, local and/or municipal laws in Ohio which prevent KinderCare from enrolling and caring for children as provided in this Agreement. 31. A copy of this Agreement shall be made available to any person upon request to the United States. 32. This Agreement is final and binding as to all signatories hereto, including all principals, agents, successors in interest and assigns of KinderCare and Plaintiffs. The undersigned representatives certify that they are authorized to enter into and consent to the terms and conditions of this Agreement and execute and legally bind their respective parties to it. 33. This Agreement shall constitute, and in executing this Agreement Plaintiffs and KinderCare 17 hereto enter into, a full release as to any and all claims, including cross-claims or third-party claims, as to any and all events, actions, or matters that were or could have been raised in the Stuthard Case, as well as all other disputes or controversies arising from any and all transactions or relationships between KinderCare and Plaintiffs, occurring through the date of this Agreement, and except as to the rights and obligations created by the Agreement, KinderCare hereby fully and forever releases and discharges each of the Plaintiffs, their parent companies, subsidiaries, successors, predecessors, affiliates, agents, directors, trustees, officers, employees, members, attorneys and assigns, both past and present, from all claims, causes of action, losses, liabilities, and demands of any kind whatsoever, whether or not accrued, whether contingent or otherwise, whether liquidated or unliquidated, and whether known or unknown and the Plaintiffs hereby fully and forever release and discharge KinderCare, its parent company, subsidiaries, successors, predecessors, affiliates, agents, directors, trustees, officers, employees, members, attorneys and assigns, both past and present, from all claims, causes of action, losses, liabilities, and demands of any kind whatsoever, whether or not accrued, 18 whether contingent or otherwise, whether liquidated or unliquidated, and whether known or unknown. Plaintiffs and KinderCare each are aware that they may hereafter discover claims or facts in addition to or different from those they now know or believe to be true with respect to the other parties to this Agreement. Nevertheless, as set forth above, it is the intention of the Plaintiffs and KinderCare to fully, finally and forever settle and release all matters and all claims related thereto, which do now exist or may heretofore have existed between KinderCare and the Plaintiffs. In furtherance of such intention, the releases given herein shall be and shall remain in effect as full and complete releases of all such matters notwithstanding the discovery or existence of any additional or different claims or facts related thereto. 34. This Agreement may be executed in duplicate counterparts. 35. This Agreement shall be effective from the date of the last execution in accordance with Paragraph 34 herein. 36. This Agreement sets forth and contains the entire agreement between and among Plaintiffs and KinderCare and the United States pertaining to the purpose and subject matter of this Agreement, and fully 19 supersedes any and all prior oral and/or written agreements, understandings, communications or discussions of Plaintiffs, KinderCare and the United States or their counsel pertaining to the purpose and subject matter of this Agreement. No change in, modification of, or addition, amendment or supplement to this Agreement shall be valid unless set forth in writing and signed by or on behalf of Plaintiffs, KinderCare and the United States subsequent to the effective date of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date(s) set forth below. FOR PLAINTIFFS: Patricia Dollison, as Next Friend of Jesi Stuthard The American Diabetes Association, and The American Diabetes Association, Ohio Affiliate, Inc. By: By: ARLENE B. MAYERSON JOHN J. KULEWICZ DREDF Vorys, Sater, Seymour and 2212 Sixth Street Pease Berkeley, CA 94710 P. O. Box 1008 (510) 644-2555 52 East Gay Street Columbus, Ohio 43216-1008 (614) 464-5634 Date: 8-19-96 Date: August 16, 1996 20 FOR THE UNITED STATES: DEVAL L. PATRICK EDMUND A. SARGUS, JR. Assistant Attorney General United States Attorney for Civil Rights Division the Southern District of Ohio By: By: JOHN L. WODATCH, Chief MAUREEN E. MURPHY L. Irene Bowen, Deputy Assistant United States Mary Lou Mobley Attorney Kaye Pestaina 2 Nationwide Plaza Disability Rights Section 280 N. High Street, P.O. Box 66738 4th Floor Washington, D.C. 20035-6738 Columbus, Ohio 43215 (202) 307-0663 (614) 469-5715 Date: Aug. 22, 1996 Date: 8-20-96 FOR KINDERCARE LEARNING CENTERS, INC.: By: GIL A. ABRAMSON Hogan & Hartson L.L.P. 111 South Calvert Street Suite 1600 Baltimore, MD 21202-6191 (410) 659-2700 Date: August 22, 1996 21 KINDERCARE LEARNING CENTERS, INC. POLICY ON TESTING BLOOD GLUCOSE LEVELS Children with insulin-dependent diabetes may require routine monitoring and regulating of their blood glucose levels. Parent(s)/guardian(s) of children with diabetes have several options for monitoring and regulating, each of which must be authorized by the parent(s)/guardian(s) in writing. Parent(s)/guardian(s) can choose to have any of the following people test the blood glucose levels of any such children: 1. The child can test himself or herself, if old enough and responsible enough and authorized by the parent(s)/guardian(s) on the Authorization for Care of Children with Insulin-Dependent Diabetes (the "Authorization Form"); 2. The parent(s)/guardian(s) is welcome to come to KinderCare and do his or her own testing; 3. KinderCare staff will test blood glucose levels (including administering a "finger-prick" test) and take those steps to regulate the child's blood glucose as authorized by the parent(s)/guardian(s) on the Authorization Form; or 4. Parent(s)/guardian(s) can arrange for someone else to provide testing and treatment. Parent(s)/guardian(s) must provide the following: 1. A signed copy of KinderCare's Authorization Form. This form must be filled out completely by the child's doctor and parent(s)/guardian(s), and must be updated every six (6) months or more often, if needed. The form is designed to provide KinderCare with information necessary for ensuring proper management of the child's diabetes and quick and effective response to emergencies. 2. All equipment and specialty foods needed for testing or treatment. The parent(s)/guardian(s) is responsible for the maintenance of materials and equipment, including ensuring that the blood glucose meter is in good working order. KinderCare is not responsible for damage or loss of equipment or specialty foods, so long as KinderCare has exercised reasonable care in storing and using these items. EXHIBIT 1 3. A signed copy of KinderCare's "Release and Waiver of Liability for Testing of Children with Diabetes." This form releases KinderCare and its employees from liability for administering the blood glucose test and taking actions set out on the Authorization Form, provided KinderCare exercises reasonable care in following the doctor's and parent's(s')/guardian's(s') instructions. If you have any questions, please contact KinderCare's Disability Services Coordinator at 1-800- or your Center Director. 2 KINDERCARE LEARNING CENTERS, INC. (Form) Authorization for Care of Children with Insulin-Dependent Diabetes EXHIBIT 2 (Form) To Be Filled Out By Parent(s) and/or Guardian(s) 2 (Form) HYPOGLYCEMIA (Low Blood Sugar) KINDERCARE LEARNING CENTERS, INC. RELEASE AND WAIVER OF LIABILITY FOR TESTING OF CHILDREN WITH INSULIN-DEPENDENT DIABETES THIS IS A RELEASE AND WAIVER OF LIABILITY FOR TESTING OF CHILDREN WITH INSULIN-DEPENDENT DIABETES (hereinafter referred to as "Release") made this XX day of XX , 19XX , by and between KINDERCARE LEARNING CENTERS, INC. ("KinderCare") and XX and XX residing at XX , who are the parent(s) or guardian(s) of XX . WHEREAS, KinderCare provides child care services at numerous facilities throughout the country and the Parent(s) or Guardian(s) has engaged KinderCare to provide child care services for XX ; WHEREAS, KinderCare has been requested by the Parent(s) or Guardian(s) to provide blood glucose testing to the child during certain time periods when the child is enrolled in KinderCare and to take certain actions as a result of the blood glucose testing as prescribed in writing on the child's "Authorization for Care of Children with Insulin-Dependent Diabetes", all in accordance with, and subject to, the KinderCare Policy on Testing Blood Glucose Levels. NOW, THEREFORE, in consideration of the agreements and covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: 1. The Parent(s) or Guardian(s) hereby release and forever discharge KinderCare and its employees or agents from any and all liability arising in law or equity as a result of KinderCare's employees or agents performing with reasonable care blood glucose testing and/or taking actions in conformance with the child's "Authorization for Care of Children with Insulin- Dependent Diabetes". The Parent(s) or Guardian(s) also hereby release and forever discharge KinderCare from any loss or damage incurred in the exercise of reasonable care to any materials and/or equipment supplied by the Parent(s) or Guardian(s) in connection with the blood glucose testing. EXHIBIT 3 2. This Release shall be governed by the laws of the State of XX , which is the location of the KinderCare facility, in which the child is enrolled, excluding its choice of law provisions. 3. This Release supersedes and replaces all prior negotiations and all agreements proposed or otherwise, whether written or oral, concerning all subject matters covered herein. This instrument, along with the form entitled "Authorization for Care of Children with Insulin-Dependent Diabetes," which is hereby incorporated by reference, constitutes the entire agreement among the parties with respect to the subject matters discussed herein. 4. The reference in this Release to the term KinderCare shall include its affiliates, successors, directors, officers, employees and representatives. The terms Parent(s)/Guardian(s) shall include the dependents, heirs, executors, administrators, assigns and successors or each. 5. If one or more of the provisions of this Release shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect or impair any other provision of this Release. This Release shall be construed as if such invalid, illegal or unenforceable provisions had not been contained herein. KINDERCARE LEARNING CENTERS, INC. By: Name: Title: Date: PARENT(S) or GUARDIAN(S) By: Name: Title: Date: 2 By: Name: Title: Date: 3 09116196 -0163617.01 1 KERRY ALAN SCANLON, Deputy Assistant Attorney General for Civil Rights, 2 JOHN L. WODATCH, Chief, JOAN A. MAGAGNA, Deputy Chief, 3 MARY LOU MOBLEY, Attorney Disability Rights Section 4 Civil Rights Division United States Department of Justice 5 P.O. Box 66738 Washington, DC 20035-6738 6 Tel: (202) 307-0663 7 CHARLES J. STEVENS United States Attorney, 8 EDMUND F. BRENNAN, Deputy Civil Chief, 9 650 Capitol Mall Sacramento, CA 95814 10 Tel: (916) 554-2700 11 IN THE UNITED STATES DISTRICT COURT 12 FOR THE EASTERN DISTRICT OF CALIFORNIA 13 ) 14 SHERRY A. ORR as Guardian ad Litem ) for JEREMY ORR, a Minor Child; ) No. CIV-S-95-507 EJG PAN 15 SHERRY A. ORR; and WILLIAM ORR, ) ) 16 Plaintiffs, ) ) 17 v. ) ) 18 KINDERCARE LEARNING CENTERS, INC., ) ) 19 Defendant ) 20 ) 21 22 23 REPLY BRIEF OF THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF 24 PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION 25 26 27 28 1 TABLE OF CONTENTS 2 TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . ii 3 I. The United States' Interpretation of the ADA is Entitled 4 to Substantial Deference . . . . . . . . . . . . . . . . . . . . . 2 5 II. The Davis Decision and Related Cases Are Not Dispositive Here . . . . . . . . . . . . . . . . . . . . . . . 4 6 III. KinderCare Must Provide Personal Services to Jeremy Orr, 7 As It Does for Younger Non-disabled Children . . . . . . . . . . . 7 8 IV. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 TABLE OF AUTHORITIES 2 CASES 3 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 4 467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . . . . . 2 5 Easley v. Snider, 36 F.3d 297, 305 (3d Cir. 1994), . . . . . . . . . . 6 6 Martin v. Occupational Safety and Health Review Comm'n, 499 U.S. 144 (1991) . . . . . . . . . . . . . . . . . . . . . . . 3 7 Southeastern Community College v. Davis, 8 442 U.S. 397 (1979) . . . . . . . . . . . . . . . . . . . . . 4, 6 9 Thomas Jefferson University v. Shalala, 114 S. Ct. 2381 (1994) . . . . . . . . . . . . . . . . . . . . . 2 10 STATUTES 11 28 C.F.R. S 36 . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 7 12 29 U.S.C. S 794 . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 13 42 U.S.C. S 302(b)(2)(A)(ii) . . . . . . . . . . . . . . . . . . . . . 5 14 42 U.S.C. SS 12181-89 . . . . . . . . . . . . . . . . . . . . . . . . 1 15 42 U.S.C. S 12182(b)(2)(A)(ii) . . . . . . . . . . . . . . . . . . . . 7 16 42 U.S.C. S 12186(b) . . . . . . . . . . . . . . . . . . . . . . . . . 3 17 42 U.S.C. S 12188(b)(1) . . . . . . . . . . . . . . . . . . . . . . . 3 18 19 20 21 22 23 24 25 26 27 28 ii 1 KERRY ALAN SCANLON, Deputy Assistant Attorney General for Civil Rights, 2 JOHN L. WODATCH, Chief, JOAN A. MAGAGNA, Deputy Chief, 3 MARY LOU MOBLEY, Attorney Disability Rights Section 4 Civil Rights Division United States Department of Justice 5 P.O. Box 66738 Washington, DC 20035-6738 6 Tel: (202) 307-0663 7 CHARLES J. STEVENS United States Attorney, 8 EDMUND F. BRENNAN, Deputy Civil Chief, 9 650 Capitol Mall Sacramento, CA 95814 10 Tel: (916) 554-2700 11 IN THE UNITED STATES DISTRICT COURT 12 FOR THE EASTERN DISTRICT OF CALIFORNIA 13 ) 14 SHERRY A. ORR as Guardian ad Litem ) for JEREMY ORR, a Minor Child; ) No. CIV-S-95-507 EJG PAN 15 SHERRY A. ORR; and WILLIAM ORR, ) ) REPLY BRIEF OF THE 16 Plaintiffs, ) UNITED STATES ) AS AMICUS CURIAE 17 v. ) IN SUPPORT OF ) PLAINTIFFS' MOTION FOR 18 KINDERCARE LEARNING CENTERS, INC., ) PRELIMINARY INJUNCTION ) 19 Defendant ) ) 20 ) 21 The complaint in this case alleged that KinderCare Learning 22 Centers, Inc., has violated title III of the Americans with 23 Disabilities Act (ADA), 42 U.S.C. SS 12181-89, by expelling a nine- 24 year old child with a disability from its after-school child care 25 program. Plaintiffs' motion for a preliminary injunction to prevent 26 the expulsion is scheduled for hearing on May 26, 1995. In its 27 opening brief as amicus curiae, the United States urged the Court to 28 1 1 grant the motion because Plaintiffs are likely to prevail on the 2 merits of their claim and because the balance of hardships and the 3 public interest weigh in favoring of granting the injunction. 4 This reply addresses three issues raised by KinderCare in its 5 response: 6 (1) the level of deference due to the government's interpretations of title III and its implementing 7 regulation; 8 (2) the proper application of Southeastern Community College v. Davis and related case law; and 9 (3) the limited scope of the personal services exemption of 28 10 C.F.R. S 36.306. 11 All other substantive issues raised by KinderCare, as well as those 12 raised by Plaintiffs, are discussed at length in the United States' 13 opening brief. 14 15 I. The United States' Interpretation of the ADA is Entitled to Substantial Deference. 16 KinderCare concedes, as it must, that the statutory and 17 regulatory interpretations of an agency charged with promulgating 18 implementation regulations are entitled to controlling weight so 19 long as they are reasonable and not clearly erroneous or contrary to 20 the statute or regulation. See Chevron, U.S.A., Inc. v. Natural 21 Resources Defense Council, Inc., 467 U.S. 837, 844 (1984); Thomas 22 Jefferson University v. Shalala, 114 S. Ct. 2381, 2386 (1994). 23 While KinderCare challenges the government's analysis, in fact, as 24 detailed in its brief, the United States' interpretations of the key 25 title III provisions -- including the mandate to make reasonable 26 modifications and the limited scope of the personal services 27 exemption -- are consistent with legislative intent, the statute, 28 2 1 the regulation, and the Department's previously published 2 interpretations of title III. Each of the Department's arguments is 3 supported by citations to relevant authority. 4 KinderCare further suggests that the government's views should 5 be discounted because they are put forth as amicus curiae. However, 6 even the cases cited by KinderCare indicate that some measure of 7 deference must be afforded the views of the agency that authored the 8 regulations at issue, regardless of whether those views have 9 previously been articulated. See also Martin v. Occupational Safety 10 and Health Review Comm'n, 499 U.S. 144 (1991). In Martin, the 11 Supreme Court held that even though the Secretary of Labor's 12 interpretation of Occupational Safety and Health Act standards were 13 first advanced during an adjudicative proceeding, they were entitled 14 to deference because the Secretary was charged with establishing 15 standards though the exercise of workplace rulemaking powers and 16 enforcing them by issuing citations for violations of those 17 standards. The Supreme Court held that the Secretary's litigation 18 positions were "as much an exercise of delegated lawmaking powers as 19 is . . . promulgation of a workplace health and safety standard," 20 and not simply appellate counsel's "post hoc rationalizations" of 21 agency actions that had already occurred. Id at 156 (citations 22 omitted). 23 Here, the Department of Justice is the agency charged by 24 Congress with both implementing title III of the ADA by promulgating 25 a regulation, see 42 U.S.C. S 12186(b), and enforcing it by 26 investigating complaints and litigating matters that cannot be 27 resolved through voluntary compliance. See 42 U.S.C. S 12188(b)(1). 28 The Department's position, therefore, is analogous to the position 3 1 in which the Secretary of Labor stood in Mratin. Hence, the 2 Department's positions, even if first espoused in the context of 3 this litigation, are still entitled to some deference. 4 5 II. The Davis Decision and Related Cases Are Not Dispositive Here. 6 The Supreme Court held in Southeastern Community College v. 7 Davis, 442 U.S. 397 (1979), that entities subject to the 8 Rehabilitation Act of 1973, 29 U.S.C. S 794, did not have to modify 9 their programs to accommodate persons with disabilities if doing so 10 would fundamentally alter those programs. The Davis court found 11 that a nursing college did not have to enroll a deaf applicant who 12 relied on lipreading for verbal communication, in part because it 13 appeared unlikely that the applicant could succeed in the program, 14 i.e., become a licensed registered nurse. The college's curriculum 15 included a clinical component involving "'many situations, such as 16 an operation room intensive care unit, or post-natal unit, [in 17 which] all doctors and nurses wear surgical masks which would make 18 lip reading impossible.'" Id. at 403 (quoting from the district 19 court's decision, 424 F. Supp. 1341, 1343 (E.D.N.C. 1976)). 20 Exempting the deaf applicant from these clinical components would 21 fundamentally alter the nature of the college's nursing program, as 22 she would not be fully prepared for the career of a licensed 23 registered nurse. 24 Similarly, in Easley v. Snider, 36 F.3d 297, 305 (3d Cir. 25 1994), the Third Circuit found that a Pennsylvania program designed 26 to teach persons with physical disabilities to live independently 27 and to become active and useful members of society did not have to 28 4 ILLEGIBLE modified to include persons with mental impairments who, the ILLEGIBLE administrators had determined, could not meet the program's ILLEGIBLE purpose: to develop fully-functioning, independent citizens. ILLEGIBLE persons with mental disabilities to participate in the ILLEGIBLE with the use of surrogates as decision-makers would be ILLEGIBLE inconsistent with the level of achievement -- i.e., ILLEGIBLE living -- expected of program participants. The "fundamental alteration" defense from Davis was ILLEGIBLE incorporated into title III's reasonable modification ILLEGIBLE 42 U.S.C. S 302(b)(2)(A)(ii), and its implementing ILLEGIBLE 28 C.F.R. S 36.302(a). KinderCare has used this defense ILLEGIBLE justify expelling Jeremy, arguing that he cannot benefit from ILLEGIBLE child care," and, as such, it would fundamentally alter the ILLEGIBLE program to require it to retain him. This arguement is ILLEGIBLE. It ignores the fact that the Supreme Court's analysis in ILLEGIBLE was based primarily on the achievement-oriented nature of ILLEGIBLE school. KinderCare relies on Davis and Easley to say that ILLEGIBLE the Rehabilitation Act nor the ADA imposes any "requirement ILLEGIBLE an 'educational institution to lower or effect substantial ILLEGIBLE of standards to accommodate a handicapped person.'" ILLEGIBLE Brief at 13, quoting Davis at 413. However, this ILLEGIBLE is inapposite: simply put, KinderCare is not a competitive ILLEGIBLE program designed to lead to a degree or professional ILLEGIBLE, nor is it a program with a specific goal of achieving ILLEGIBLE living. Instead, it is a program that offers children a ILLEGIBLE supervised place to play and rest after school while parents ILLEGIBLE are otherwise occupied. Jeremy attends KinderCare after attending his regular school -- 5 1 normally provided to younger children available to Jeremy as well.1 2 Indeed, KinderCare has provided diapering services to Jeremy since 3 he enrolled in its after-school program in September 1994. There is 4 nothing in the record to suggest that this has been difficult or 5 problematic.2 6 7 8 9 10 11 12 13 14 15 16 17 1 Of course, if KinderCare permits a personal care attendant to accompany Jeremy, the aide could provide personal services such 18 as diapering or assistance with eating, eliminating KinderCare's need to provide these services directly. 19 KinderCare argues that it would have to supervise the aide very 20 closely, something it suggests would be very burdensome. KinderCare has other aides in its program and concedes, as it must, that these 21 aides do not jeopardize the quality or stability of its programs. KinderCare has done next to nothing to determine how best to 22 structure its relationship with the aide or with the Alta Center or United Cerebral Palsy to ameliorate any of these concerns. Even if 23 a personal care attendant provides services that are different from those provided by other aides, there are undoubtedly ways to 24 successfully integrate this kind of service provider into KinderCare's program. Under title III's reasonable modification 25 requirement, KinderCare has a duty to explore ways of achieving this integration. 26 2 However, there might be circumstances where diapering older 27 children with disabilities would not be a reasonable modification. This is not the case with Jeremy. 28 8 1 IV. Conclusion. 2 The Court should issue a preliminary injunction to prevent 3 KinderCare from expelling Jeremy and to require KinderCare to permit 4 an aide to accompany him in its after-school program. 5 6 Dated: 7 May 14, 1995 May , 1995 Sacramento, CA Washington, DC 8 9 10 Respectfully submitted, 11 CHARLES J. STEVENS, KERRY ALAN SCANLON, 12 United States Attorney, Deputy Assistant Attorney Eastern Dist. of California General for Civil Rights 13 14 By: By: 15 EDMUND F. BRENNAN, JOHN L. WODATCH, Chief Deputy Civil Chief JOAN A. MAGAGNA, Deputy Chief 16 Office of the U.S. Attorney MARY LOU MOBLEY, Attorney Eastern Dist. of California U.S. Department of Justice 17 555 Capitol Mall, Suite 1150 Civil Rights Division Sacramento, CA 95814 Disability Rights Section 18 Tel: (916) 554-2700 P.O. Box 66738 Washington, D.C. 20035-6738 19 Tel: (202) 307-0663 20 21 22 23 24 25 26 27 28 9 IV. Conclusion. The Court should issue a preliminary injunction to prevent KinderCare from expelling Jeremy and to require KinderCare to permit an aide to accompany him in its after-school program. Dated: May , 1995 May 17, 1995 Sacramento, CA Washington, DC Respectfully submitted, CHARLES J. STEVENS, KERRY ALAN SCANLON, United States Attorney, Deputy Assistant Attorney Eastern Dist. of California General for Civil Rights By: By: EDMUND F. BRENNAN, JOHN L. WODATCH, Chief Deputy Civil Chief JOAN A. MAGAGNA, Deputy Chief Office of the U.S. Attorney MARY LOU MOBLEY, Attorney Eastern Dist. of California U.S. Department of Justice 555 Capitol Mall, Suite 1150 Civil Rights Division Sacramento, CA 95814 Disability Rights Section Tel: (916) 554-2700 P.O. Box 66738 Washington, D.C. 20035-6738 Tel: (202) 307-0663 1 * * CERTIFICATE OF SERVICE * * 2 The undersigned hereby certifies that she is an employee in the 3 office of the United States Attorney for the Eastern District of California and is a person of such age and discretion as to be 4 competent to serve papers. 5 That on May 19, 1995, she served a copy of the attached: 6 Reply Brief of the United States as Amicus Curiae in Support of 7 Plaintiff's Motion for Preliminary Injunction 8 by placing said copy in a postage paid envelope addressed to the 9 person(s) hereinafter listed, by depositing said envelope in the United States Mail at Sacramento, California. 10 11 By United States Mail: 12 Victor J. James II LITTLER, MENDELSON, FASTIFF 13 TICHY & MATHIASON 400 Capitol Mall, 16th Floor 14 Sacramento, CA 95814-4410 15 Arlene Brynne Mayerson Disability Rights Education & Defense 16 2212 Sixth Street Berkeley, CA 94710 17 Gil A. Abramson 18 HOGAN & HARTSON 111 S. Calvert Street 19 Suite 1600 Baltimore, MD 21202 20 Jennifer Brown 21 ORRICK, HERRINGTON & SUTCLIFFE 400 Capitol Mall 22 Suite 3000 Sacramento, CA 95814 23 24 25 Donna M. Perez 26 Legal Secretary 27 28 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT FOR THE 6 EASTERN DISTRICT OF CALIFORNIA 7 8 SHERRY ORR, WILLIAM ORR, 9 and JEREMY ORR, through his guardian ad litem 10 Elaine Huffstutler, CIV. NO. S-95-507 EJG/GGH 11 Plaintiffs, 12 v. MEMORANDUM OPINION AND ORDER 13 KINDERCARE LEARNING CENTERS, INC., 14 Defendant. 15 / 16 This matter was before the court on May 26 and June 2, 1995, 17 for hearing on plaintiffs' motion for a preliminary injunction. 18 Cynthia Larsen and Arlene Mayerson appeared on behalf of the 19 plaintiffs. Gil Abramson, Andrew Topping and Victor James 20 appeared on behalf of the defendant. Mary Lou Mobley and 21 Assistant U.S. Attorney Edmund Brennan appeared on behalf of the 22 United States Department of Justice, as amicus curiae. After 23 considering the parties' written and oral arguments and the record 24 in this matter, the court orally granted plaintiffs' motion for a 25 preliminary injunction. The court writes now to confirm its oral 26 ruling and to set forth its findings and conclusions. See Fed. R. Civ. P. 52(a); 65(d). BACKGROUND 1 This is an action by a disabled child and his parents against 2 a daycare center, alleging discrimination on the basis of 3 disability. Plaintiffs contend that defendant has denied 4 plaintiffs the opportunity to participate in or benefit from the 5 services offered by Kindercare, and has failed to make reasonable 6 modifications to its policies, practices and procedures, to enable 7 plaintiffs to benefit from the services offered by Kindercare, in 8 violation of the Americans with Disabilities Act ("ADA") and the 9 Unruh Civil Rights Act. 10 The following facts are taken from the pleadings and the 11 briefs and, for the most part, are undisputed. Plaintiff Jeremy 12 Orr is a nine-year-old boy who suffers from tuberous sclerosis, a 13 developmental disability which causes mental retardation, low 14 vision and mild seizures. Jeremy needs assistance eating, walking 15 and interacting with other persons. In addition, he cannot talk 16 and is not toilet-trained. Since both of Jeremy's parents work 17 full time, he needs care during and after school. During school 18 hours, between 8:30 a.m. and 2:30 p.m., Jeremy attends a special 19 education program at an Elk Grove elementary school. In September 20 1994, Jeremy's parents, plaintiffs Sherry & William Orr, enrolled 21 Jeremy in the Elk Grove Kindercare after school daycare program 22 for approximately three hours per day, from 2:30-5:30 p.m. 23 Kindercare Learning Centers, Inc. is a provider of daycare 24 services, with 1200 locations throughout the United States. The 25 centers located in California are licensed by the State of 26 California. Kindercare provides part-time and full-time daycare 2 1 programs in a group setting for children aged six weeks through 2 five years. In addition, Kindercare offers an after school 3 daycare program, also in a group setting, for children aged five 4 through twelve, attending local elementary schools. The ratio of 5 caregivers to children depends upon the age of the children and 6 the qualifications of the caregiver. The ratios are established 7 by the State and are a licensing criteria. Generally speaking, 8 the younger the child, the greater the number of caregivers since 9 younger children are less self-sufficient and require more 10 individualized attention. 11 Since he was enrolled at Kindercare in September 1994, Jeremy 12 Orr, a nine-year-old, has been placed in the two-year-old room. 13 At Kindercare, the ratio in the two-year-old room is one caregiver 14 for each ten children. In the school age room (ages 5-12) of the 15 after school program, the ratio is one caregiver to every 14 16 children. 17 While no aide or additional staff member was sought by or 18 offered to Jeremy as a condition of enrollment, plaintiffs Sherry 19 and William Orr initiated discussions with Kindercare and Alta 20 California Regional Center to explore the possibility of providing 21 an aide at state expense to attend the Kindercare program with 22 Jeremy. The aide would change Jeremy's diapers and generally 23 assist him as needed to facilitate his participation in the 24 program. At all times the Alta Regional Center has been willing 25 and able to either reimburse Kindercare for the cost of an aide 26 hired by Kindercare to assist Jeremy, or provide an aide at no 3 1 cost to Kindercare through a contract with United Cerebral Palsy 2 Association. 3 On February 17, 1995, without expressly approving or 4 rejecting the request for an aide, Kindercare gave the Orrs 30 5 days notice of Kindercare's intent to terminate Jeremy from the 6 program on the grounds that Kindercare could not meet Jeremy's 7 individualized needs in a group care setting. 8 Kindercare has agreed to allow Jeremy to remain at the center 9 pending a decision on plaintiffs' motion for preliminary 10 injunction. However, Kindercare has refused to either move Jeremy 11 from the two-year old room to the school-age room, or allow an 12 aide to attend the program with Jeremy, pending the hearing. 13 DISCUSSION 14 Plaintiffs' motion for preliminary injunction seeks four 15 types of preliminary injunctive relief, some of which are 16 prohibitory, and some of which are mandatory. The primary relief 17 sought is an order preventing Kindercare from disenrolling Jeremy 18 during the pendency of this action. Additionally, and apparently 19 equally important, are plaintiffs' requests that Jeremy be placed 20 in an age-appropriate setting, i.e. moved from the two-year old 21 room to the school-age room (5-12 year-olds), and that Kindercare 22 allow an aide to accompany Jeremy during his time at the center. 23 Lastly, plaintiffs seek an order preventing defendant from 24 discriminating against all children with disabilities and 25 directing defendant to implement policies to comply with state and 26 federal laws prohibiting discrimination on the basis of 4 1 disability. This latter request was not reiterated in oral 2 argument and, therefore, was not considered by the court. 3 A. Role of United States, as Amicus 4 Initially, it is necessary to comment upon the role of the 5 United States in this lawsuit and in connection with the Americans 6 with Disabilities Act, in order to resolve the parties' 7 disagreements concerning how much, if any, deference to accord the 8 government's arguments. Plaintiffs and the government urge the 9 court to give substantial weight to the government's brief, 10 failing to distinguish between the government's interpretation of 11 the ADA and its accompanying regulations, and the government's 12 litigation position advanced in this lawsuit. 13 The United States Attorney General, through the Department of 14 Justice, is charged with enforcing Title III of the ADA. See 42 15 U.S.C. S 12188(b). In that connection, the government has been 16 delegated the responsibility of promulgating regulations to 17 implement these portions of the Act. See 42 U.S.C. S 12186(b). 18 As the agency charged with promulgating implementing regulations, 19 its interpretation of those regulations is entitled to controlling 20 weight, as long as the interpretations are reasonable. 21 Additionally, the regulations themselves, are entitled to 22 substantial deference. See Chevron v. Natural Resources Defense 23 Council, 467 U.S. 837, 844 (1984); Thomas Jefferson University v. 24 Shalala, 114 S.Ct. 2381, 2386 (1994) However, where an agency 25 advances a position for the first time in connection with its role 26 as amicus in ongoing litigation, it is entitled to little, if any, weight. See Bowen v. Georgetown University Hospital, 488 U.S. 5 1 204, 212-13 (1988); National Broiler Council v. Voss, 44 F.3d 740, 2 747 n.9 (9th Cir. 1994). 3 While the parties disagree as to the amount of weight to 4 accord the government's fact-specific arguments raised in this 5 case, it is clear that its existing regulations are entitled to 6 substantial deference and its interpretations of those regulations 7 are entitled to controlling weight. Additionally, the 8 government's interpretations of the statute and regulations 9 implemented thereunder, articulated for the first time in this 10 lawsuit, are at the very least, informative and useful. 11 B. Preliminary Injunction Standards 12 In the Ninth Circuit, to prevail on a motion for preliminary 13 injunction, the moving party must demonstrate a likelihood of 14 success on the merits and the possibility of irreparable harm, or 15 that serious questions are raised and the balance of hardships tip 16 in favor of the moving party. See Chalk v. U.S. District Court, 17 840 F.2d 701, 704 (9th Cir. 1988). In addition, when relevant, 18 the public interest is a factor to be considered. See id. at 711. 19 Further, "federal law provides the standards governing injunctive 20 relief with respect to both . . federal and state law claims." 21 Sullivan v. Vallejo City Unified School District, 731 F.Supp. 947, 22 957 (E.D. Cal. 1990).1 23 1 While the two state claims were touched upon by the 24 plaintiffs in their opening brief, it is clear that for purposes of the instant motion, the parties' focus is on the federal claim. 25 Plaintiffs confirmed at oral argument that they were not seeking preliminary injunctive relief on their state law claims. 26 Accordingly, only the federal claim has been considered by the court. 6 In this case, as Kindercare points out, plaintiffs' request 1 for an aide is equivalent to mandatory injunctive relief, for 2 which plaintiffs bear a higher burden. They must show that both 3 the facts and law clearly favor their position and that extreme or 4 very serious damage will result. Anderson v. United States, 612 5 F.2d 1112, 1115 (9th Cir. 1979). When "a party seeks mandatory 6 preliminary relief that goes well beyond maintaining the status 7 quo pendente lite, courts should be extremely cautious about 8 issuing a preliminary injunction." Martin v. International 9 Olympic Committee, 740 F.2d 670, 675 (9th Cir. 1984). 10 Kindercare also argues that plaintiffs' injuries are 11 compensable by money damages, thus negating the need for mandatory 12 injunctive relief. However, this is unclear. While plaintiffs 13 seek unspecified damages in the prayer of their complaint and have 14 not allocated them between the state and federal claims, money 15 damages are not available to private plaintiffs under Title III of 16 the ADA. See 42 U.S.C. S 12188(a)(1) (noting that remedies are 17 the same as those provided in 42 U.S.C. S 2000a-3(a), which are 18 limited to injunctive relief and attorneys' fees). Although the 19 state claims allow recovery of monetary damages, only the federal 20 claim is before the court on this motion. See footnote no. 1, 21 supra. 22 Plaintiffs attempt to escape from the mandatory nature of the 23 relief sought, and thus the higher burden, by altering the wording 24 of their request from an order directing Kindercare to allow an 25 aide to attend with Jeremy, to an order "that Jeremy not be 26 prevented from attending Kindercare with an aide". However, 7 creative semantics cannot change the nature of the remedy sought. 1 Since an aide has never attended with Jeremy during the eight 2 months he has been enrolled at the center, an injunction requiring 3 Kindercare to allow an aide to accompany Jeremy alters the status 4 quo -- no matter how such a request is phrased. Thus, for the 5 court to issue an order requiring Kindercare to allow Jeremy to 6 attend with an aide, plaintiffs must meet the heightened burden 7 for mandatory relief. Likewise, the request for an order 8 directing Kindercare to move Jeremy to another classroom is also 9 mandatory in nature and, if granted, would require the court to 10 micro-manage defendant's business. Since Kindercare knows its 11 business and asserts that it has a proven track record of 12 assimilating disabled children into its program, the decision 13 whether, and when, to move Jeremy should be left to his caregivers 14 at Kindercare. 15 C. Probable success on the merits/serious questions, 16 Plaintiffs contend they are likely to succeed on the ADA 17 claim because they have met all its elements. First, Kindercare 18 is a public accommodation subject to the provisions of Title III 19 of the ADA. See 42 U.S.C. S 12181(7)(K) (listing day care centers 20 as public accommodations). This is undisputed by defendant. 21 Second, plaintiffs argue that Kindercare has violated both the 22 general and specific prohibitions against discrimination contained 23 in section 12182. Plaintiffs maintain that Kindercare's refusal 24 to allow Jeremy to continue to attend the center, which refusal is 25 admittedly based on the severity of Jeremy's disability, violates 26 the Act's general prohibition against denial of participation on 8 the basis of disability. See 42 U.S.C. S 12182(b)(1)(A)(i).2 As 1 plaintiffs point out, there is no requirement that a disabled 2 person benefit from a service to the same extent as a non-disabled 3 person. Rather, the law merely requires that he be given the 4 opportunity to benefit, to the extent he is able. In addition, 5 plaintiffs assert that Kindercare's refusal to allow an aide to 6 attend with Jeremy, violates the Act's specific prohibition 7 against failing to make reasonable modifications to policies, 8 practices and procedures to ensure access for disabled persons. 9 See 42 U.S.C. S 12182(b)(2)(A)(ii).3 Third, plaintiffs Sherry 10 and William Orr, as Jeremy's parents, contend they are also 11 protected by the Act which prohibits discrimination based on a 12 person's association with a person with a disability. See 42 13 14 15 16 17 18 2 That section, in relevant part, provides: 19 It shall be discriminatory to subject an individual . . 20 . on the basis of a disability . . . to a denial of the opportunity of the individual . . .to participate in or 21 benefit from the . . . services, facilities . . . or accommodations of an entity. 22 3 That section, in relevant part, provides: 23 [D]iscrimination includes -- (ii) a failure to make 24 reasonable modifications in policies, practices, or procedures, when such modifications are necessary to 25 afford such . . . services . . . to individuals with disabilities, unless the entity can demonstrate that 26 making such modifications would fundamentally alter the nature of such . . . services; 9 U.S.C. S 12182(b)(1)(E).4 Plaintiffs argue that a public 1 accommodation such as Kindercare provides services not only to 2 children, but also to the parents of the children by providing 3 after school care, a service the parents would otherwise have to 4 provide themselves. 5 Defendant raises four arguments in support of its position 6 that plaintiffs cannot prevail on the merits of their ADA claim. 7 First, defendant argues that Jeremy requires custodial care and 8 cannot function in a group setting; therefore, requiring 9 Kindercare to provide after school care to Jeremy will 10 fundamentally alter the nature of its services. Since any 11 fundamental alteration of services is, by definition, not a 12 violation of the Act, Kindercare argues that plaintiffs have not 13 shown a likelihood of success on the merits. See 42 U.S.C. S 14 12182(b)(2)(A)(ii), text in footnote no. 3, supra. Second, 15 Kindercare asserts that Jeremy's need for custodial care threatens 16 Kindercare's ability to care for other children and jeopardizes 17 its student to teacher ratios mandated by state law. Third, 18 Kindercare maintains that requiring it to allow an aide to 19 accompany Jeremy is an unreasonable accommodation. Lastly, 20 Kindercare states that Jeremy's parents have no standing, and are 21 not proper plaintiffs, under the ADA. 22 23 4 That section, in relevant part, provides: 24 (E) ASSOCIATION. It shall be discriminatory to . . . 25 deny equal . . . services . . . to an individual . . . because of the known disability of an individual with 26 whom the individual . . . is known to have a relationship or association. 10 For reasons discussed below, both the United States, through 1 the Disability Rights Section of the Civil Division of the 2 Department of Justice, and plaintiffs, successfully refute 3 defendant's first and second arguments in the context of this 4 motion for preliminary injunctive relief.5 However, the court is 5 not convinced that plaintiffs have met the higher burden required 6 for mandatory relief with respect to their request for an aide or 7 their request that Jeremy be placed in a different classroom; 8 therefore, these portions of plaintiffs' motion are denied. Nor 9 is the court satisfied that William and Sherry Orr have standing 10 to sue in their own right under the ADA. However, since Jeremy's 11 claim is severable from that of his parents, their failure to 12 demonstrate a likelihood of success is not fatal to this motion. 13 a. Whether allowing Jeremy to attend Kindercare 14 is "fundamental alteration" of Kindercare's services 15 In its Technical Assistance Manual the Department of Justice 16 has defined "fundamental alteration" as a modification so 17 significant it alters the essential nature of the services 18 offered. See Title III Technical Assistance Manual, p. 27, 19 attached as Exhibit A to plaintiffs' motion. The agency's 20 definition is accorded controlling weight since it is a reasonable 21 interpretation of the statute and because defendant has interposed 22 no objection nor offered a different definition. See e.g., 23 24 5 It is important to stress that the merits of the case are not being resolved at this stage of the litigation. Despite the 25 all or nothing approach taken by each side in connection with this hearing, neither party has requested, nor has the court ordered, 26 that the motion be converted to a motion for summary judgment. See Fed. R. Civ. P. 65(a)(2). 11 Fiedler v. American Multi-Cinema, Inc., 871 F.Supp. 35, 36-37 n.4 1 (D.D.C. 1994) (court deems government's publication: The Americans 2 with Disabilities Act Title III Technical Assistance Manual 3 Covering Public Accommodations, and Americans with Disabilities 4 Act Accessibility Guidelines to be regulations and interpretations 5 of regulations). 6 Kindercare argues that its primary function is to provide 7 daycare in a group setting. This service, Kindercare argues, 8 would be fundamentally altered by Jeremy's presence because he 9 requires "custodial" care. See e.g., Tronick declaration, 10 attached as Exhibit E to defendant's opposition ("Jeremy is in 11 desperate need of custodial services"; "Kindercare does not 12 provide the type of custodial services of which Jeremy is in 13 need"). Nowhere in its briefs does Kindercare define this term. 14 However, by reference to the declarations and depositions of staff 15 persons, it appears that custodial care means one-on-one 16 attention. For example, the Director of the Elk Grove Kindercare 17 states that Jeremy needs custodial care when he is diapered, when 18 he eats, and when he goes in and out the classroom. See Wilcox 19 declaration, attached as Exhibit D to defendant's opposition. A 20 classroom teacher states that Jeremy is incapable of functioning 21 by himself and needs custodial care. See Hacha declaration, 22 attached as Exhibit J to defendant's opposition. These same staff 23 persons also state that Jeremy does not interact with the other 24 children, and is not capable of engaging in any of the group 25 activities, thereby suggesting that the group setting is not 26 appropriate for the personal care Jeremy requires. 12 In support of its position that one-on-one assistance is a 1 fundamental alteration of the nature of its program, defendant 2 relies heavily on Southeastern Community College v. Davis, a case 3 decided under the Rehabilitation Act, the forerunner of the ADA. 4 See 442 U.S. 397 (1979). In fact, at oral argument, Kindercare 5 said Davis is dispositive of the issue. In that case the Supreme 6 Court held that the Rehabilitation Act did not require a community 7 college to admit a hearing disabled individual to its nursing 8 program where the school's curriculum would have to be changed to 9 accommodate the student's handicap. Specifically, the school 10 would have to provide the student with "close" and individual 11 attention by a nursing instructor" in order to ensure patient 12 safety in the clinical component of the program. Davis, 442 at 13 409. Alternatively, the plaintiff argued that the school could 14 alter its program and allow the student to matriculate absent 15 participation in the clinical classes. The court concluded that 16 "[s]uch a fundamental alteration in the nature of a program is far 17 more than the 'modification' the regulation requires." Id. at 410. 18 Relying on this language, defendant argues that Jeremy's 19 disability precludes him from participating in the after school 20 daycare program at Kindercare unaided and that providing the 21 personal one-on-one services he requires is a fundamental 22 alteration in the program. Davis cannot be analogized to the 23 instant facts as easily as defendant maintains. That case 24 involved an academic program, with a structured curriculum and 25 several component parts, one of which required the school to teach 26 and the students to learn how to ensure the safety of other 13 persons. Kindercare's after school daycare program contains no 1 similar requirements. 2 Kindercare's own staff members concede that the after school 3 portion of its program is non-academic. Therefore, Davis is 4 inapposite. While Kindercare is to be lauded for its attempts to 5 integrate a curriculum similar to its full time daycare into the 6 after school setting, the evidence does not support the effort. 7 The after school component of Kindercare's program is just that -- 8 a time for unwinding and relaxation from the rigors of a 9 structured classroom. Between 3:00 and 6:00 p.m., children are 10 engaged in less structured "free play". See Hacha deposition, 11 23:8. 12 Kindercare also relies on 28 C.F.R. section 36.306 which 13 states that a public accommodation is not required to provide its 14 participants with services of a personal nature including 15 assistance in eating, toileting, or dressing. What defendant 16 fails to point out is that the "no personal service" regulation 17 applies only to facilities which do not provide the personal 18 service as part of their standard operating procedures. "Of 19 course, if personal services are customarily provided to the 20 customers or clients of a public accommodation, e.g., in a 21 hospital or senior citizen center, then these personal services 22 should also be provided to persons with disabilities using the 23 public accommodation." 28 C.F.R. pt.36, Appendix B, at p. 614 24 (July 1, 1994). 25 In a daycare setting, much like a hospital or senior citizen 26 center, providing assistance with eating, toileting and dressing 14 is a normal part of the service provided. All children under the 1 age of three need help with these basic functions. Since 2 providing these personal services to children under three years of 3 age is part of Kindercare's normal program, plaintiffs have made 4 a strong showing that it is a reasonable modification, but not a 5 fundamental alteration, for Kindercare to provide these services 6 to an older child like Jeremy who needs the services, not because 7 of his age, but because of his disability. The Department of 8 Justice is in agreement. "[W]here a program serves both infants 9 (who require diapering) and school age children, it seems 10 reasonable to provide diapering service for a school age child 11 with a disability even if in another classroom." Letter of 12 December 8, 1994, from John Wodatch, Civil Rights Division, U.S. 13 Department of Justice, to Abby Cohen, Child Care Law Center, 14 attached as Exhibit A to Mayerson declaration. 15 Presumably the best way to assess whether Jeremy's attendance 16 at Kindercare has caused a fundamental alteration in the essential 17 nature of its services, is to evaluate his eight months at the 18 center. In this connection, plaintiffs' evidence paints an 19 entirely different picture of Jeremy than that portrayed by 20 defendant. Both his pediatrician and his pediatric neurologist 21 have certified that Jeremy can attend Kindercare without 22 limitations and that his disability "does not render [him] unable 23 to participate in daycare." See Chretein and Lee declarations. 24 Additionally, Jeremy's inactivity and lack of interaction 25 with other children appears to be attributable to a greater extent 26 to defendant that to Jeremy's disability. Depositions of 15 Kindercare staff persons, as well as declarations of educational 1 consultants hired by plaintiffs in connection with this lawsuit to 2 observe Jeremy at Kindercare, reveal the following. Since 3 attending Kindercare, Jeremy has not engaged in any behavior which 4 necessitates constant one-on-one attention by a staff person. In 5 fact, Jeremy has been pretty much left to his own devices, 6 unattended and isolated on a rug. To the extent other children 7 seek to interact with Jeremy, they have been discouraged from 8 doing so. The staff, as well, leave Jeremy alone, and do not 9 attempt to engage him in any of the activities. Jeremy's 10 caregivers state that after their initial efforts to involve him 11 in classroom activities failed, they made no further attempts. 12 Plaintiffs, however, submit evidence diametrically opposed to 13 that submitted by defendant, which refutes the contention that 14 Jeremy is unable to participate in group activities and needs 15 constant one-on-one care. The most telling is the declaration of 16 Jeremy's special education teacher, Jan Donough. Based on her 17 observations of Jeremy on a daily basis for the past 18 months in 18 a group setting, Donough states that Jeremy does not pose a 19 behavioral problem and that he does interact with other children 20 and reacts well to encouragement and guidance. While Jeremy's 21 response to and participation in a special education class cannot 22 be viewed in the same light as his participation at Kindercare, 23 the programs are not intended to provide the same type of 24 services. 25 While the parties dispute whether Jeremy derives any benefit 26 from the daycare program, defendant has not shown that Jeremy's 16 presence has or will require Kindercare to alter the nature of its 1 group daycare setting. No evidence has been presented to suggest 2 that in the eight months Jeremy has attended Kindercare he has 3 been disruptive, engages in inappropriate behavior, or otherwise 4 distracts from the nature of the after school daycare services 5 provided. In other words, defendant has offered no evidence that 6 Jeremy's presence has caused a "modification that is so 7 significant that it alters the essential nature of the . . . 8 services . . . offered." See Title III Technical Assistance 9 Manual, p. 27, attached as Exhibit A to plaintiff's motion. 10 Kindercare was, before Jeremy enrolled, and continues to be, a 11 provider of, among other things, after school daycare in a group 12 setting. In the context of this motion Kindercare has not shown 13 that Jeremy's attendance at the center fundamentally alters this 14 service. 15 b. Whether Jeremy's presence 16 jeopardizes student/teacher ratios 17 Next, Kindercare argues that Jeremy's constant need for 18 custodial care places Kindercare at risk of violating the teacher 19 to student ratio provisions on which Kindercare's state license 20 depends. This argument is unsupported by any evidence.6 21 6 Kindercare states that Jeremy's need for diapering in a 22 bathroom stall instead of on the diaper changing table in the classroom where the teacher can remain in full view of the class, 23 requires the classroom teacher to leave the other children unattended for short periods of time and has forced Kindercare to 24 decrease the number of children in the two-year-old classroom. See Wilcox deposition, 60:5-19. However, evidence was presented 25 that the student/teacher ratio was adjusted in the two-year-old room for reasons unrelated to Jeremy's diapering needs. See 26 Wilcox deposition, 63:15 - 64:8. Moreover, the evidence shows that when any child requires one-on-one attention of more than 17 c. Whether allowing an aide is an 1 unreasonable accommodation 2 Kindercare's