[Vendorsmi] A Significant Food Service ADA Settlement Agreement
Terry Eagle
terrydeagle at yahoo.com
Mon Dec 24 16:04:16 UTC 2012
Below is information that could have ramifications for BEP snack bars and
cafeterias engaged in on-site food preparation. To be forewarned is to be
forearmed and proactive.
A new settlement agreement with Lesley University, in Cambridge,
Massachusetts, has been added to www.ADA.gov. The agreement concerns
reasonable modifications to Lesley's food services for students with celiac
disease and food allergies. Among other things, the agreement requires
modification to Lesley's policies and practices to enable easy access to
gluten and allergen free food options in its cafeteria, maintenance of a
dedicated space for students with food allergies to store and prepare foods,
training, and, where necessary, a process to permit on-campus students to be
excepted from the meal plan, and the payment of compensatory damages.
The agreement, to the degree it is regarded as precedent outside college
food service operations, can certainly complicate cafeteria operations. I
would have thought that the right to have your meal delivered to you by food
service staff anywhere on campus, and to have the cafeteria devote specific
space to preparing it for you constitute a fundamental alteration of the
service. It seems to me that if good sanitation practices are followed and
cookware & cutting boards are swapped out, dedicated spaces to prevent
allergen cross contamination would not be necessary. The fact this is
applied to a private college may not bode well for those of us in government
settings where such things are enforced more stringently.
If you are interested in learning more about the Americans with Disabilities
Act, or the Department's settlement agreements, you may access the ADA
website at www.ADA.gov or call the toll-free ADA Information Line at (800)
514-0301 or (800) 514-0383 (TTY).
Here is the text of the agreement:
SETTLEMENT AGREEMENT
BETWEEN
THE UNITED STATES OF AMERICA
AND LESLEY UNIVERSITY
DJ 202-36-231
Press Release
horizontal divider
Background
In or around October 2009, the United States Department of Justice ("United
States")
received a complaint alleging that Lesley University ("Lesley" or the
"University")
violated Title III of the Americans with Disabilities Act of 1990, 42 U.S.C.
§§ 12181-12189
("ADA") by failing to make necessary reasonable modifications in policies,
practices,
and procedures to permit students with celiac disease and/or food allergies
(collectively
"food allergies") to fully and equally enjoy the privileges, advantages, and
accommodations
of its food service and meal plan system. The United States initiated an
investigation
of these claims and the University has cooperated. The United States
alleges that
the University's policies and practices concerning students with food
allergies did
not comply with Title III of the ADA. The University maintains that it has
taken
and will continue to take positive, good faith steps to make reasonable
modifications
to its food service policies, practices, and procedures and to work with
students
on a case-by-case basis to address the needs of individual students with
food allergies.
In consideration of the terms set out in this document, the University and
the United
States (the "Parties") agree to enter voluntarily into this Settlement
Agreement
(the "Agreement"). Nothing herein shall be deemed to be an admission or
acknowledgment
by the University that it has violated the ADA, its accompanying
regulations, or
any other federal or state law.
Lesley University is a private nonprofit university with approximately 8,000
students,
located in Cambridge, Massachusetts, and is a public accommodation within
the meaning
of 42 U.S.C. § 12181(7)(J) and 28 C.F.R. § 36.104. As a public
accommodation, Lesley
is subject to the nondiscrimination requirements of Title III of the ADA, 42
U.S.C.
§ 12182, and its implementing regulation. Title III prohibits a private
university
from discriminating against any individual on the basis of disability in the
full
and equal enjoyment of the university's goods, services, facilities,
privileges,
advantages, or accommodations. 42 U.S.C. § 12182 and 28 C.F.R. §§ 36.201,
36.202.
As a public accommodation, Lesley acknowledges that it must also make
reasonable
modifications in policies, practices, or procedures, when the modifications
are necessary
to afford goods, services, facilities, privileges, advantages, or
accommodations
to individuals with disabilities, unless the entity can demonstrate that
making such
modifications would fundamentally alter the nature of the goods, services,
facilities,
privileges, advantages, or accommodations. 42 U.S.C. § 12182(b)(2)(A)(ii);
28 C.F.R.
§ 36.302
Food allergies may constitute a disability under the ADA, 42 U.S.C. § 12102.
Individuals
with food allergies may have an autoimmune response to certain foods, the
symptoms
of which may include difficulty swallowing and breathing, asthma, and
anaphylaxis.
For example, celiac disease is an autoimmune disorder that affects the major
life
activity of eating and the major bodily functions of the immune, digestive,
bowel,
and neurological systems. Celiac disease is triggered by consumption of the
protein
gluten (found in foods containing wheat, barley, or rye), which can cause
permanent
damage to the surface of the small intestines and an inability to absorb
certain
nutrients, leading to vitamin deficiencies that deprive the brain,
peripheral nervous
system, bones, liver and other organs of vital nourishment.
See, e.g., Celiac Disease Definition
, U.S. Nat'l Library of Medicine, Nat'l Inst. of Health, A.D.A.M. Medical
Encyclopedia
(Jan. 20, 2010),
available at
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001280/. The Parties agree
that it
is in the Parties' best interests, and the United States believes that it is
in the
public interest, to resolve this dispute amicably and without litigation.
The Parties
have therefore voluntarily entered into this Agreement, agreeing as follows:
Resolution Terms
1. Compliance with the ADA
The University, its officers, employees, successors, and assigns, agree to
comply
with Title III of the Americans with Disabilities Act, 42 U.S.C. §§
12181-12189,
and 42 U.S.C. § 12203, and the implementing regulation, 28 C.F.R. pt. 36,
including,
but not limited to, the following:
(a) The University acknowledges that it has a continuing obligation, and
it is the
University's policy, to make reasonable modifications in policies,
practices, and
procedures when the modifications are necessary to afford the University's
goods
or services to students and prospective students (collectively "students")
with disabilities,
42 U.S.C. § 12182(b)(2)(A)(ii) and 28 C.F.R. § 36.302; and
(b) The University acknowledges that is has a continuing obligation, and
it is the
University's policy, to refrain from engaging in retaliation, coercion,
interference,
intimidation, or any other action prohibited by 42 U.S.C. § 12203 and 28
C.F.R. §
36.206.
2. Disability Services for Students Policy
As of the effective date of this Agreement, the University agrees to amend
its Disability
Services for Students Policy (the "Amended Policy"). A copy of the Amended
Policy
is attached as Exhibit A. In addition,
(a) Within thirty (30) business days
1
of the effective date of this Agreement, the University agrees to provide a
link
on the first page of its internal website service to the Disability Services
Main
Page and will post the Amended Policy on the Disability Services Main Page
at www.lesley.edu/services/disability.
(b) The University also agrees to separately distribute copies of the
Amended Policy
to employees and contractors in the Admissions, Residence Life, and
Disability Services
Offices who have contact with students and their families. Thereafter, the
University
agrees to provide a copy of the Amended Policy to all newly hired employees
in the
Admissions, Residence Life, and Disability Services Offices who have contact
with
students and their families, within seven (7) business days of their hire
date.
(c) Within thirty (30) business days of the effective date of this
Agreement, the
University will physically post the Amended Policy on a bulletin board in
the Disability
Services office and distribute the Amended Policy to all undergraduate and
graduate
students via e-mail. Beginning in academic year 2013-2014, the University
will insert
a summary of the Amended Policy, with a web address link to the full Amended
Policy,
in the University's undergraduate and graduate Student Handbooks.
(d) Within forty-five (45) business days of the effective date of this
Agreement,
the University agrees to provide the United States with proof of the
adoption of
the Amended Policy and the posting of the Amended Policy on its website(s),
and will
provide the United States with a photograph of the posting of the Amended
Policy
in the Disability Services office.
(e) Within sixty (60) business days of the effective date of this
Agreement, the
University will amend its contract with the University's food service
provider (the
"Food Service Provider") to formalize its current practice of requiring the
Food
Service Provider to comply with the University's policies and procedures on
reasonable
modifications. In addition, the University agrees to amend its contract
with the
Food Service Provider to formally include a requirement that each of the
Food Service
Provider's staff be provided with the educational training program described
in Paragraph
6 of this Agreement. The University agrees to enforce the Food Service
Provider's
compliance with the contractual provisions referenced in this Paragraph.
3. Disability Services
(a) The University will obtain and retain a record of identifying
information from
persons who seek information about food-related disability services at the
University
throughout the term of this Agreement. Identifying information includes,
but is
not limited to, the following: name; address; telephone numbers (home, work,
mobile);
best number and best time to call; and email address.
(b) The University will advise students with food allergies (or others
acting on
a student's behalf) who request reasonable modifications to contact
Disability Services.
As set forth in the University's Procedures for Requesting Modifications
(which is
referenced in the Amended Policy), upon receiving a request or inquiry
concerning
reasonable modifications, Disability Services will meet with the student
individually
and work with the student cooperatively to fashion an individualized plan
for the
student. This is intended to be an interactive process in which the student
and
the University work together to formulate the best modification plan
available for
the student. Depending upon the individual circumstances, the University
may allow
students to be exempt from the mandatory meal plan as a possible form of a
reasonable
modification. The University will ensure that any modification plan is
provided
in the most integrated setting appropriate to the needs of the individual
with the
disability. 42 U.S.C. § 12182(b)(1)(B) and 28 C.F.R. § 36.203. After
engaging in
this interactive process, the University will provide students with food
allergies
with written disability modification letters detailing the specific
modification
plan tailored to that student. The University recognizes that the
modification process
may be an ongoing one that requires additional changes throughout the
student's enrollment
at the University and will work with students to update their food allergy
modification
plans, as necessary.
(c) Notwithstanding the process set forth in Paragraph 3(b), the
University agrees
to provide reasonable modifications to students with food allergies during
the interactive
process described above. After the student and the University engage in the
interactive
process, even if a student has not executed a written disability
modification letter,
the University agrees to provide modifications if the modification is
reasonable
and does not fundamentally alter the nature of the University's goods,
services,
facilities, privileges, advantages, or accommodations.
4. Dining Services
(a) Upon the effective date of this Agreement, the University agrees to
post prominent
notices concerning food allergies at each of its five student dining halls
or food
eatery facilities; the notices will be printed in a bold font no smaller
than 40
points and will state the following, or something substantially similar to
the following:
"Food-Allergic Individuals: Be aware that we handle and prepare egg, milk,
wheat,
shellfish, fish, soy, peanut, tree nut products, and other potential
allergens in
our cafes and kitchens. Before placing your order, please inform your
server if
you or a person in your party has a food allergy. Please direct questions
to the
manager."
(b) The University agrees to display the notice located at
http://www.foodallergy.org/files/FoodAllergiesEnglish
2009 HR.pdf in a prominent location in the cooking areas and/or food
preparation
areas in each dining hall or food eatery.
(c) The University agrees that its Food Service Provider will continue
to provide
meals made without specific allergens to students with food allergies who
have food
allergy modification plans under the process described in Paragraph 3. The
Food
Service Provider will take reasonable steps to prevent the food from
containing the
specific allergens at issue for the student, to the extent possible. The
food will
also be nutritionally comparable to the food choices offered to other
students, to
the extent reasonably possible. The University's dining hall food lines
will continue
to offer and identify a variety of food options made without certain
allergens (e.g.,
wheat, dairy, nuts), and the Food Service Staff will take reasonable steps
to avoid
cross-contamination. To further minimize the risk of cross-contamination
from meals
obtained in the general dining hall food lines, the University may also
offer students
with food allergies the option to pre-order their meals, consistent with the
procedures
outlined in Paragraph 4(d). All students with food allergies who have
registered
with Disability Services and engaged in the interactive process will have
the choice
to pre-order their meals or obtain their meals from the food lines.
(d)Pre-Order Option
: The University agrees to continue to offer a Pre-Order Option for students
with
food allergies to pre-order their daily lunch and dinner in accordance with
the process
defined in this paragraph.
(i) As of the date of this Agreement, the Pre-Order Option will allow
students to
review the online daily dining hall and food eatery menus and to e-mail
their requested
meal choices to the University's Food Service Manager, the Food Service
Executive
Chef, or the Dining Hall Manager.
(ii) The Pre-Order Option will allow students to pre-order their meals if
they give
at least twenty-four (24) hours advanced notice before the meal, to ensure
that the
Food Service Provider has or can obtain the necessary ingredients to prepare
the
specific meal request without the allergen(s) at issue. The Food Service
Provider
will make reasonable efforts to fulfill all reasonable meal requests, even
if the
requests are not made in a timely manner, but cannot guarantee that it will
have
the necessary ingredients on hand to prepare the specific meal request to be
made
without specific allergens if it does not have at least twenty-four (24)
hours advanced
notice.
(iii) If the Food Service Provider is unable to fulfill a student's
particular meal
request because the request is not made in a timely manner, the Food Service
Provider
will make reasonable efforts to provide alternative meal options made
without specific
allergens for the student.
(iv) The Food Service Provider will prepare all meals made without
specific allergens,
including pre-ordered meals, in a designated area within the University's
cooking
and food preparation areas in order to avoid cross-contamination.
(v) The Food Service Provider will provide these meals in a dedicated
space at the
White Hall Dining Hall, referenced in Paragraph 4(f), or transport the meals
to the
University's other dining halls or food eateries, as referenced in Paragraph
4(e).
Subject to review and concurrence by counsel for the United States, the
University
agrees to continually review and revise this process, as necessary, for the
term
of this Agreement.
(e) The University understands that students may be at or near different
parts of
campus during lunch and dinner and might prefer to have their meals
delivered to
these locations. Accordingly, when students order meals via the Pre-Order
Option
described in Paragraph 4(d), students may request that the University
deliver their
meals to the University's other dining hall and food eatery facilities.
Students
should provide the Food Service Provider with reasonable twenty-four (24)
hours advanced
notice to allow the Food Service Provider to prepare and deliver the meal to
the
designated location. The University will make reasonable efforts to deliver
the
meals to the designated location after receiving 24 hours advanced notice,
but in
certain circumstances may be unable to deliver meals in a timely manner due
to inclement
weather or other transportation impediments. Due to the limited size and
capacity
of the University's dining hall kitchens, the University will prepare such
meals
at the White Hall kitchen facility. These meals will then be delivered to
the other
University kitchens, where they are kept separate to avoid
cross-contamination.
(f) The University agrees to continue to provide students with food
allergies a separate
area to store and prepare food (the "dedicated area") in the manner set
forth below.
As of the date of this Agreement, the University will continue to dedicate a
restricted
room adjacent to the White Hall dining room and accessible to the
University's Student
Center. The University will provide identified students with food
allergies, who
have engaged in the interactive process as set forth in Paragraph 3(b), with
card
access to the dedicated area. The University will restrict access to the
dedicated
area to the identified students with food allergies and ensure that these
students
can access the dedicated area at any time during the months in which the
University
is in session. While neither the University nor the Food Service Provider
can fully
ensure that students with access to the dedicated area do not
cross-contaminate the
dedicated area, the University will take reasonable steps to avoid
cross-contamination
in the dedicated area and will develop and maintain a process for educating
students
with food allergies who have access to the dedicated area on how to avoid
cross-contaminating
the dedicated area. The University will maintain the dedicated area and
ensure that
it contains the following:
(i) A sink and counter area, dish rack, and other kitchen supplies,
(i.e., paper
towels, dish soap, sponges, etc.), refreshed as necessary;
(ii) A refrigerator and freezer for perishable items;
(iii) Cabinet space for non-perishable items;
(iv) Separate appliances, including a microwave and toaster; and
(v) A food warmer to keep pre-ordered meals warm.
(g) The University agrees to continue to allow students with access to
the dedicated
area to submit their individualized and specific "shopping lists" of
requested food
made without allergens to the Food Service Provider. The University will
ensure
that the Food Service Provider purchases the requested items in a timely
manner (approximately
once or twice per week). The University also agrees to ensure that the Food
Service
Provider independently monitors the food supply in the dedicated area and
replenishes
the food supply as necessary.
(h) The University recognizes that students with food allergies may wish
to purchase
food outside of the University (at local restaurants, grocery stores, and
other establishments),
through the use of their student CashLynx account. The University agrees to
make
reasonable efforts to retain and obtain vendors that offer food made without
allergens
to participate in the CashLynx card program. As of the date of this
Agreement, there
are multiple vendors that provide allergen-free food options and accept
CashLynx
card payments.
(i) Within thirty (30) business days of the effective date of this
Agreement, the
University will provide a separate link on the first page of its internal
website
to the Dining Service Main Page (the "DS Main Page"). The DS Main Page will
advise
students that the University will provide food options for students with
food allergies
in all Lesley University campus dining halls and food eateries. The DS Main
Page
will also provide a link to the Food Service Providers' online menus of the
dining
halls and food eateries and include updated weekly meal options for students
with
food allergies. The DS Main Page will also provide a link to "Information
Regarding
Food Allergies" (or its equivalent). The link regarding food allergies will
provide:
(i) Contact information for the dining services staff person(s)
designated as the
contact person(s) pursuant to Paragraph 4(d) above;
(ii) A description of and link to the Amended Policy; and
(iii) A description of and link to the Complaint Resolution Procedure
described in
Paragraph 5 below.
5. Modification Appeal Process
The University recognizes that despite its good faith and reasonable efforts
to make
reasonable modifications of its policies, practices, and procedures for
students
with food allergies, students may ultimately disagree with the University's
proposed
modifications. If a student with food allergies disagrees with the
determinations
made by Disability Services after the student has engaged in the interactive
process,
the student may request a review by the Executive Director of Academic
Support Services
(Lesley's ADA/Section 504 Coordinator), consistent with the Amended Policy
referenced
in Paragraph 2. Appeals of this review are heard by the Dean of Student
Life and
Academic Achievement.
6. Complaint Resolution Procedure
In general, students may also file complaints of discrimination pursuant to
the University's
Office of Equal Opportunity and Inclusion Complaint Resolution Procedure
(the "Complaint
Resolution Procedure"), referenced in the Amended Policy.
7. Educational Program
(a) Food Service Managers
(i) Within thirty (30) business days of the effective date of this
Agreement, the
University will require that the Food Service Provider train its managers
and employees
on how to comply with the terms of this Agreement.
(ii) Within sixty (60) business days of the effective date of this
Agreement, the
Food Service Managers will attend a "ServSafe" food handling and food
service management
class offered by the National Restaurant Association Educational Foundation.
The
University will provide the United States with proof of completion of the
course
within ten (10) business days of training.
(iii) Within sixty (60) business days of the effective date of this
Agreement, and
at least annually thereafter, the University will ensure that the Food
Service Provider's
regional nutritionist will, as it has done in the past, visit the University
to discuss
the nutritional needs of students with food allergies and to reevaluate the
Food
Service Provider's policies and procedures. In addition, the University
will ensure
that the Food Service Managers receive annual training concerning the
nutritional
needs of students with food allergies.
(b) Food Service Staff
(i) Within thirty (30) business days of the effective date of this
Agreement, the
University will require that the Food Service staff is trained regarding the
terms
of this Agreement.
(ii) For the duration of this Agreement, to ensure that the Food Service
Provider's
staff complies with the terms of this Agreement, the University will require
the
Food Service Provider to continue to provide educational training to all
food service
staff a minimum of twice per year, including at least once before the fall
and spring
semesters begin. This mandatory training will include the following:
(1) Instruction on celiac disease and food allergies, including food
products that
contain allergens, cross-contamination, and proper food storage and
preparation;
(2) Instruction on how to handle inquiries regarding food allergies,
including questions
regarding ingredients and sub-ingredients in the meals;
(3) Instruction that the on-site Food Service Manager should promptly
notify Disability
Services when a student seeks modifications to, or an exemption from, the
University's
mandatory meal plan; and
(4) A question and answer session to review each of the foregoing areas.
(iii) In addition to the Food Service Provider's formal, twice yearly
mandatory allergy
awareness training, the University will require the Food Service Managers to
conduct
monthly staff meetings that address allergy awareness and food safety
practices.
(c) Lesley University Employees and Contractors
(i) Within ninety (90) business days after the effective date of this
Agreement and
thereafter at least once per year, the University agrees to provide an
educational
training program regarding its obligations under Title III of the ADA to all
employees
and contractors in Residence Life and Disability Services who have contact
with students
and their families. This training can be conducted by the University via a
commercially
available program.
(ii) Within seven (7) business days of the completion of the training
referenced
in Paragraph 6(c), the University will provide the United States with proof
that
this training has occurred, including a dated copy of the agenda and a dated
sign-in
sheet with the names and titles of the employees and contract employees who
received
the training.
8. Reporting and Document Retention
(a) For the duration of this Agreement, the University agrees to
preserve all records
related to this Agreement. The University also agrees that upon ten (10)
business
days' written notice, representatives of the United States are permitted to
inspect
and copy any of the University's records related to this matter or inspect
any premises
under the University's control bearing on compliance with this Agreement at
any and
all reasonable times, provided, however, that the United States will
endeavor to
minimize any inconvenience to the University from such inspections.
(b) Within sixty (60) business days after the effective date of this
Agreement and
thereafter forty-five (45) days prior to each anniversary of the effective
date of
this Agreement, the University agrees to submit a written report to the
United States
describing all actions taken relating to its compliance with this Agreement.
The
University's report will include appropriate documentation, including any
relating
to the Policies referenced in this Agreement and summaries of all Office of
Equal
Opportunity and Inclusion complaints and investigatory reports relating to
food allergies.
9. Monetary Payment
(a) Pursuant to 42 U.S.C. § 12188(b)(2), the University agrees to pay
the sum of
fifty thousand dollars ($50,000) to the individuals previously identified by
the
United States. The University agrees to make such payments to the
previously identified
individuals in an amount and manner agreed to by the Parties. The United
States
will deliver such payments when the identified individual has signed a
Waiver and
Release of Claims and upon receipt of the signed Waiver and Release of
Claims by
counsel for the United States.
10. Miscellaneous Provisions
(a) Failure by the United States to enforce this Agreement with respect
to any of
its provisions or deadlines shall not be construed as a waiver of the right
of the
United States to enforce other deadlines and provisions of this Agreement.
(b) All materials sent to the United States pursuant to this Agreement shall
be sent
either by .pdf attachment or by overnight, prepaid delivery, to Alyse Bass,
Senior
Trial Attorney, and/or William Lynch, Trial Attorney, Disability Rights
Section,
Civil Rights Division, U.S. Department of Justice, Washington, D.C. 20005,
Attn:
DJ #202-36-231.
(c) The effective date of this Agreement is the date of the last
signature to this
Agreement.
(d) This Agreement, including Exhibit A, constitutes the entire Agreement
between
the Parties on the matters raised herein, and no other statement, promise,
or agreement,
either written or oral, made by either party or agents of either party, that
is not
contained in this written Agreement will be enforceable under its
provisions.
(e) This Agreement is limited to resolving claims under the ADA related to
the University's
obligations to make reasonable modifications to its meal plan and services
for students
with food allergies, and does not purport to remedy any other existing or
potential
violations of the ADA or any other federal, state, or local law. The
University
acknowledges that this Agreement does not limit the University's continuing
responsibility
to comply with all aspects of the ADA and all other federal laws.
(f)The Parties agree that, as of the effective date of this Agreement,
litigation
is not "reasonably foreseeable" concerning the matters described in the
introductory
paragraph. To the extent that either party previously implemented a
litigation hold
to preserve documents, electronically stored information (ESI), or things
related
to the matters described in the introductory paragraph, the party is no
longer required
to maintain such a litigation hold. Nothing in this Paragraph relieves
either party
of any other obligations imposed by this Agreement.
(g) A copy of this Agreement and any information contained in it,
including the Amended
Policy, will be made available to any person by the University or the United
States,
upon request.
(h) This Agreement shall be binding on the University and its successors in
interest,
assigns, agents, employees, and contractors. The University has a duty to
notify
any and all successors in interest of this Agreement and the duties and
responsibilities
it imposes on the University. In the event the University seeks to transfer
or assign
all or part of its obligations under its meal program, and the successor or
assignee
intends to carry on some or all of the University's responsibilities, the
University
shall, as a condition of the transfer or assignment, obtain the written
accession
of the successor or assignee to any obligations remaining under this
Agreement for
the remaining term of this Agreement.
(i) The University and the United States recognize that the process and
procedures
necessary to reasonably modify the University's meal plan and services for
students
with food allergies are not static, and that these issues in particular are
constantly
evolving. Accordingly, the University agrees to continue to evaluate the
policies
and procedures set forth herein, and to modify and revise such policies as
necessary
to remain in compliance with Title III of the ADA. Pursuant to Paragraph 7
above,
the University will notify the United States of any substantive changes to
the policies
and procedures set forth in this Agreement.
11. Duration of Agreement
(a) This Agreement will remain in effect for three (3) years from its
effective date.
(b) The United States may review compliance with this Agreement at any
time. If the
United States believes that the University has failed to comply in a timely
manner
with any requirement of this Agreement, the United States will so notify the
University
in writing and attempt to resolve the issue in good faith. If the United
States
is unable to reach a satisfactory resolution of the issue within sixty (60)
days,
after providing notice to the University and allowing the University an
opportunity
to cure, the United States may institute a civil action in federal district
court
to enforce the terms of this Agreement, or take other action to enforce
Title III
of the ADA.
12. Time for Performance
Any time limits for performance imposed by this Agreement may be extended by
the
mutual written consent of the United States and the University.
Executed this 20th day of December, 2012.
[1]
Business days refers to days in which the University is in session.
FOR THE UNITED STATES OF AMERICA
Carmen M. Ortiz
United States Attorney
Eve A. Piemonte Stacey
Assistant United States Attorney
United States Attorney’s Office
One Courthouse Way, Suite 9200
Boston, MA 02210
FOR LESLEY UNIVERSITY
____________________________
Shirin Philipp, Esq.
General Counsel
Lesley University
29 Everett Street
Cambridge, MA 02138
Thomas E. Perez
Assistant Attorney General
Eve Hill
Senior Counselor to the Assistant Attorney General
Civil Rights Division
Gregory B. Friel, Acting Chief
Kathleen P. Wolfe, Special Litigation Counsel
Jana L. Erikson, Deputy Chief
/s/ Alyse S. Bass
Alyse S. Bass, Senior Trial Attorney
William F. Lynch, Trial Attorney
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W. - NYA
Washington, D.C. 20530
Exhibit A
Reasonable Modifications of Policies, Practices, and Procedures for Students
with
Disabilities
Specific Information for Lesley Students with Disabilities
Lesley University is committed to the full participation of its students in
all of
its programs. In addition to this long-standing Lesley philosophy, students
with
disabilities have specific legal rights guaranteed by the Americans with
Disabilities
Act (ADA), a civil rights law enacted to protect individuals from
discrimination
on the basis of disability. Title III of the ADA prohibits discrimination
on the
basis of disability in the full and equal enjoyment of goods, services,
facilities,
privileges, advantages, and accommodations of public accommodations, such as
universities.
1
The following is a summary of Lesley University's policies and procedures
for students
with disabilities seeking reasonable modifications under the ADA (sometimes
colloquially
termed and referred to by Lesley as "reasonable accommodations").
An essential component of Title III of the ADA is the right of an individual
with
a disability to a reasonable modification of policies where necessary to
afford such
individual an equal benefit. The process for obtaining a reasonable
modification
is an interactive one that typically begins with the student's request for a
change
in the usual manner in which things are done. In the context of reasonable
modifications,
Disability Services may ask for documentation concerning an individual's
disability
and/or the need for modifications, if such documentation is necessary (e.g.,
manifestation
of an individual's disability is not readily apparent), is reasonable, and
limited
to the need for the modification requested. While not always necessary,
documentation
may come from a physician, clinician, or other provider and may set forth
recommended
modifications.
Further, in accordance with Title III of the ADA, Lesley University will
make reasonable
modifications to our rules, policies, practices, and procedures, when such
modifications
are necessary to afford goods, services, facilities, privileges, advantages,
or accommodations
to individuals with disabilities. Lesley University does not charge
individuals
with disabilities for reasonable modifications or other actions required by
the ADA.
Example
: Lesley University makes reasonable modifications to its rules, policies,
practices,
and procedures in a variety of ways. For example, Lesley provides testing
modifications
for students with learning disabilities, which may include, but are not
limited to,
allowing students extended time to take tests, allowing for untimed tests,
or providing
students with a distraction-free test taking environment. Other students
residing
on campus may have a food-related disability that limits their ability to
fully and
equally participate in our meal program, such as an autoimmune disease like
celiac
disease or allergies to products like wheat, milk, peanuts, eggs, etc.
These individuals
may need a modification or exception to our rule requiring that students
residing
on campus participate in the University's mandatory meal plan. One
possibility is
to provide food made without allergens, and a specific allergen-free food
preparation
and heating area for students. Another possible reasonable modification,
depending
on the specific circumstances, may be to exempt the student from the
mandatory meal
program. Lesley University offers its students both of these options.
Note
: The obligation to make reasonable modifications extends broadly to all
programs
and services offered by the University. It includes the right to classroom
modifications,
use of service animals and a host of other issues. Furthermore, rights
afforded
by Title III of the ADA extend well beyond reasonable modifications alone,
such as
ensuring effective communication through the use of auxiliary aids and
services,
the provision of testing accommodations, and the obligation to remove
architectural
barriers when readily achievable, among others.
Who is eligible to receive disability support services?
All qualified students with disabilities are eligible for modifications and
support
services. It is the student's responsibility to initiate the modification
process
with Disability Services.
What are the responsibilities of students for obtaining disability support
services
and reasonable modifications?
1. To initiate the process with Disability Services.
2. To provide documentation of the disability or disabilities if necessary,
and to provide
other relevant information, e.g., as to food allergies or dietary needs, or
as to
specific classroom modifications.
3. To deliver modification letters, or arrange for their delivery through
Disability
Services, to course instructors, if relevant and necessary for the
modification.
4. To notify Disability Services of any changes each semester.
5. To work cooperatively with the University.
It is not necessary to say the words "reasonable modification" when making a
reasonable
modification request. Any request for an exception, modification, or
adjustment
to a rule, policy, practice, or procedure because of a disability will be
treated
as a reasonable modification request. Reasonable modification requests can
be submitted
orally or in writing and can be made by a student with a disability or by
someone
acting on the student's behalf if the student also wants the requested
modification
and works cooperatively with the University.
What type of services can students with disabilities expect to receive?
While some modifications to policies are made generally, support services
and reasonable
modifications are determined in most circumstances on an individual basis by
the
Disability Services administrators in consultation with you and, when
necessary,
medical professionals or others with helpful information.
Policies
Confidentiality
Denial & Grievance
Pets, Service Animals, and Assistance Animals for Resident Students
Publications
Confidentiality
Lesley University is committed to ensuring that all student disability
information
is maintained confidentially. Disability related information should be
treated as
medical information and handled under strict rules of confidentiality. A
student's
documentation is filed securely with Disability Services. It is not kept
with any
other student records on campus. As such, the information can only be
shared on
a limited "need to know" basis within the institutional community.
Modification letters contain only the modification information, and not
specifics
of the disability.
Denial and Grievance
Based on individual circumstances, Disability Services may not approve a
request
for modification(s) or may discontinue an existing modification. See
Procedures
for Requesting Accommodations [pdf].
Grievance
If you disagree with the determination made by Disability Services to deny
or discontinue
a modification, you can have the decision reviewed by the Executive Director
of Academic
Support Services (Lesley's ADA/Section 504 Coordinator). Appeals of this
review
are heard by the Dean of Student Life and Academic Achievement. For
details, please
see the Accommodation Appeal Review Form [pdf].
In general, students may also file complaints of discrimination with the
University's
Office of Equal Opportunity and Inclusion.
2
For details regarding the formal grievance policy, please see the Lesley
University
Discrimination, Harassment, Sexual Harassment, and Sexual Violence Policy
for details.
http://www.lesley.edu/policies/university/discrimination-harassment.html.
Pets, Service Animals, and Assistance Animals for Resident Students
Students with disabilities who use Service or Assistance Animals may bring
such animals
on campus in compliance with the laws concerning Service and Assistance
Animals.
For information on definitions, requests, approval, provisions, and
responsibilities,
see the Lesley University Policy on Pets, Service Animals, and Assistance
Animals
for Resident Students [pdf].
Publications
All publications generated at the University should include a statement in
the front
of the publication that informs the reader that the publication is available
in alternate
format. The statement should read as follows:
Information included in this publication is available in alternate format
upon request.
[1]
Postsecondary institutions, whether public or private, that receive Federal
financial
assistance are also subject to Section 504 of the Rehabilitation Act of
1973, which
prohibits discrimination against otherwise qualified individuals with
disabilities.
[2]
Of course, nothing in this policy precludes an individual from pursuing
State or
Federal remedies for violation of the ADA, Rehabilitation Act or any other
applicable
law.
last updated December 20, 2012
Thisinformation, except the actual agreement text, was posted by Bill Reif
on national Vendtalk, and by Ross Doerr on Blindlaw talk, NFB lists.
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