Voluntary Resolution Agreement Between The United States Department of Health and Human Services, Office for Civil Rights and The Regents of the University of California on Behalf of Its UCLA Intervention Program

OCR 08-21-427973

I. Parties to Agreement

  1. The Parties to this Voluntary Resolution Agreement (“Agreement”) are:
    1. The U.S. Department of Health and Human Services (“HHS”), Office for Civil Rights (“OCR”), pursuant to its jurisdictional authority under Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. § 794, and its implementing regulation, 45 C.F.R. Part 84; Title II of the Americans with Disabilities Act of 1990 (“Title II”), 42 U.S.C. § 12131 et seq. and its implementing regulation at 28 C.F.R. Part 35; and Section 1557 of the Patient Protection and Affordable Care Act (“Section 1557”), 42 U.S.C. § 18116, and its implementing regulation, 45 C.F.R. Part 92; and
    2. The Regents of the University of California on behalf of its UCLA Intervention Program. UCLA Health is owned and operated by the Regents of the University of California, a California Constitutional corporation. The UCLA Intervention Program (“UCLAIP”) is a program of the UCLA David Geffen School of Medicine, which is a component of UCLA Health. UCLAIP is a center-based early intervention program providing educational and therapeutic services to infants and toddlers with a wide range of developmental risks and disabilities. The services offered by UCLAIP include infant services, a toddler program, and individual therapy. The center-based toddler program is a classroom-based early intervention pre-preschool program providing specialized educational and therapeutic services to help optimize all areas of the child’s development (“Toddler Program”).

II. Background

  1. This matter was initiated by a complaint filed with OCR alleging that UCLAIP discriminated against a minor child on the basis of the child’s disabilities.
  2. The complaint alleged that UCLAIP terminated the minor’s participation in its Toddler Program after the child experienced a seizure on their second day of attendance. The complaint further alleged that UCLAIP failed to provide reasonable modifications for the minor to continue to participate in and benefit from UCLAIP’s Toddler Program.
  3. As a result of this complaint, OCR initiated an investigation of UCLAIP’s compliance with Section 504, Title II, and Section 1557.

III. Jurisdiction

  1. OCR is responsible for investigating disability discrimination complaints and conducting compliance reviews to determine whether recipients of HHS funding operate their programs and activities in compliance with Section 504 and, where appropriate, negotiate and secure voluntary compliance agreements.
  2. OCR is the designated agency under 28 C.F.R. Part 35, Subpart G, authorized to investigate complaints and conduct compliance reviews of public entities to ascertain compliance with Title II relating to disability discrimination in the provision of health care and social services, and, where appropriate, negotiate and secure voluntary compliance agreements.
  3. OCR is also responsible for enforcing Section 1557, which prohibits discrimination on the basis of disability. The Section 1557 implementing regulation provides that an individual shall not, on the grounds prohibited under Section 504 of the Rehabilitation Act of 1973, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving federal financial assistance (“FFA”) from HHS.
  4. UCLA Health is a recipient of financial assistance from HHS and therefore UCLAIP is subject to the requirements of Section 504. 45 C.F.R. § 84.2.
  5. UCLAIP is part of UCLA Health, which is owned and operated by the Regents of the University of California, a California Constitutional corporation that is charged with the duty under Section 9 of Article IX of the Constitution of the State of California to administer the University as a public trust, and is therefore a “public entity” for purposes of Title II. 28 C.F.R. § 35.102.
  6. As a health program or activity receiving financial assistance from HHS, UCLAIP is subject to Section 1557. 45 C.F.R. § 92.3.
  7. Under Section 504, Title II, and Section 1557, and the relevant implementing regulations, no qualified individual with a disability shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination by reason of disability in any public health program or health program or activity receiving financial assistance from HHS. 29 U.S.C. § 794; 42 U.S.C. § 18116; 45 C.F.R. §§ 84.4(a), 84.52(a)(1); see also 45 C.F.R. § 92.101.
  8. Section 504, Title II, and Section 1557 also require a covered entity to make reasonable modifications in policies, practices, and procedures when such modifications are necessary to avoid discrimination on the basis of disability, unless the entity can demonstrate that making a modification would fundamentally alter the nature of the service, program, or activity. Reasonable modifications should be appropriately tailored to the needs of individuals with disabilities. 28 C.F.R. § 35.130(b)(7); 45 C.F.R. § 92.205; see also 45 C.F.R. §§ 84.68(a), and (b)(7)(i)-(ii).
  9. The subject of OCR’s investigation is a qualified individual with a disability within the meaning of Section 504, 29 U.S.C. § 705(20)(B) (incorporating the ADA definition of disability in 42 U.S.C. § 12102), and Section 1557, 45 C.F.R. § 92.4. Due to their disabilities, the minor required a reasonable modification of a support person or 1:1 classroom aide in order to participate in the Toddler Program.
  10. The Parties have determined that this matter can be resolved promptly through the terms of this Agreement and without further burden or additional investigation, enforcement proceedings, or litigation. The Parties have therefore voluntarily entered into this Agreement.
  11. UCLAIP agrees to the terms stipulated in this Agreement and affirms that it fully intends to comply with its obligations to comply with all applicable provisions of Section 504, Title II, and Section 1557.

IV. Definitions

For purposes of this Agreement, the terms listed below shall have the following meaning:

  1. The term “Duration of this Agreement” means the period of time this Agreement remains in effect.
  2. The term “Effective Date of this Agreement” means the date the Agreement is signed by all Parties.
  3. The term “participant” means any individual who, with or without reasonable modification, meets the essential eligibility requirements for any UCLAIP service, program, or activity.
  4. The term “UCLAIP personnel” means all employees, agents, and contractors working for or on behalf of UCLAIP who have or are reasonably likely to have direct contact with participants.
  5. The term “days” refers to calendar days.

V. Actions to be Taken by UCLAIP

A. General Nondiscrimination Obligations

  1. Nondiscrimination. UCLAIP agrees to comply with the requirements of Section 504, Title II, Section 1557, and their implementing regulations. UCLAIP shall provide individuals with disabilities an equal opportunity to participate in, and enjoy the benefits of, its services, programs, or activities, as required by this Agreement, Section 504, Title II, and Section 1557.
  2. Reasonable Modifications. UCLAIP will make reasonable modifications to its policies, practices, or procedures when such modifications are necessary to avoid discrimination on the basis of disability, unless it can demonstrate that making a modification would fundamentally alter the nature of UCLAIP’s services, programs, or activities.
  3. Retaliation and Coercion. UCLAIP shall not retaliate against or coerce any person who made, or is making, a complaint; exercised, or is exercising, their rights under Section 504, Title II, or Section 1557; or who has assisted or participated in the investigation of any matter covered by this agreement.

B. Policies and Procedures

  1. Within one hundred twenty (120) days of the Effective Date of this Agreement, UCLAIP shall review its nondiscrimination policies and any related procedures (including its nondiscrimination statement and its grievance procedure), and revise as necessary, to ensure it is taking all necessary steps to provide reasonable modifications to individuals with disabilities, consistent with the requirements of this Agreement, Section 504, Title II, and Section 1557.
  2. Interactive Assessment. Within one hundred twenty (120) days of the Effective Date of this Agreement, UCLAIP will expand and update its reasonable modification policies and procedures to include an individualized, interactive assessment of the circumstances for making determinations regarding requests, including that the process (1) must be documented; and (2) must show the following: that each request for a reasonable modification is assessed individually; that decisions regarding reasonable modifications are not based on assumptions, stereotypes, or beliefs about individuals with disabilities; that a good faith effort is made to identify a modification that is effective and reasonable; that questions are objective and limited to understanding the barrier to the participant’s ability to participate in the service, program, or activity, and the nature of a modification that will remove that barrier; and that, when applicable, alternatives are identified that will effectively address the participant’s disability-related needs.
  3. Reasonable Modification Decisions. Within one hundred twenty (120) days of the Effective Date of this Agreement, UCLAIP will expand and update its reasonable modification policies and procedures to establish the administrative level at which reasonable modification decisions are made.
  4. Fundamental Alteration Analysis and Review. Within one hundred twenty (120) days of the Effective Date of this Agreement, UCLAIP will expand and update its reasonable modification policies and procedures to (1) require that all fundamental alteration analyses be written and documented, including information such as: the date(s) of all meeting(s) with the name(s) of all attendee(s) and a detailed explanation of each decision with the justification for the decision demonstrated by supporting information; and (2) effectuate a centralized process with legal review of all fundamental alteration analysis decisions.
  5. Approval by OCR. Within one hundred twenty (120) days of the Effective Date of this Agreement, UCLAIP shall submit its revised draft policies and procedures to OCR for review and approval. Upon receipt, OCR will review the policies and procedure for consistency with Section 504, Title II, and Section 1557, and provide comments to UCLAIP. OCR will make its best effort to review the proposed policies and procedures within thirty (30) calendar days of receipt. OCR will discuss any comments or concerns it has regarding the proposed policies and procedures with UCLAIP and UCLAIP will revise its proposed policies and procedures to reflect the comments or concerns identified by OCR following discussion with UCLAIP.
  6. Within thirty (30) days of receiving approval from OCR, UCLAIP will implement its policies and procedures, and will distribute copies to all UCLAIP personnel. UCLAIP will also incorporate the content of the policies and procedures into the training required under this Agreement.

C. Documentation Relating to Reasonable Modifications

  1. Documentation of all requests and denials for reasonable modifications will be maintained in the participant’s file.
  2. If UCLAIP determines that it will not provide a particular reasonable modification requested by an individual because there is an equally available alternative, UCLAIP personnel shall so advise the individual requesting the reasonable modification, notify the individual of its grievance procedure, and secure an equally available alternative in a timely manner. UCLAIP shall document the basis for the determination, including the date of the determination, the name and title of the UCLAIP personnel who made the determination, and the alternative reasonable modification, if any, that UCLAIP will provide, in the participant’s file. Any equally available alternative will also be documented in the participant’s file. A copy of this documentation shall be provided to the participant or their personal representative upon request.

D. Training

  1. Within sixty (60) days of OCR approval of UCLAIP’s policies and procedures, UCLAIP will draft and submit training materials to OCR for review and approval. The training materials will be used to develop a training program for UCLAIP personnel and will cover: the requirements of this Agreement; relevant nondiscrimination requirements under applicable Federal laws; obligations to provide reasonable modifications under Section 504, Title II, and Section 1557; UCLAIP’s reasonable modification policies and procedures; UCLAIP’s grievance procedure; and the documentation requirements of this Agreement. OCR will make its best effort to review the proposed training materials within sixty (60) calendar days of receipt. OCR will discuss any comments or concerns it has regarding the proposed training with UCLAIP and UCLAIP will revise its proposed training materials to reflect the comments or concerns identified by OCR following discussion with UCLAIP.
  2. Timeframe for the Provision of Training. To ensure compliance with this Agreement and the law as it relates to the provision of reasonable modifications, UCLAIP agrees to conduct trainings for UCLAIP personnel within the timeframes specified in this Agreement. UCLAIP shall maintain copies of the training materials and attendance records for each training. Each training will be of sufficient duration and content to train UCLAIP personnel in the areas outlined in this Agreement relative to their responsibilities for coordinating or providing services, programs, or activities.
    1. UCLAIP Personnel. Within one hundred twenty (120) days of OCR approval of the training materials, and on an annual basis thereafter, UCLAIP will provide to all UCLAIP personnel mandatory training including nondiscrimination requirements under applicable Federal laws; obligations to provide reasonable modifications under Section 504, Title II, and Section 1557; UCLAIP’s reasonable modification policies and procedures; UCLAIP’s grievance procedure; and the documentation requirements of this Agreement.
    2. New UCLAIP Personnel. Within sixty (60) days of their start date, UCLAIP will provide to all new UCLAIP personnel mandatory training including nondiscrimination requirements under applicable Federal laws; obligations to provide reasonable modifications under Section 504, Title II, and Section 1557; UCLAIP’s reasonable modification policies and procedures; UCLAIP’s grievance procedure; and the documentation requirements of this Agreement.

VI. Reporting and Monitoring 

  1. Notices to OCR. Unless otherwise provided, all notices, reports or other such documents required by this Agreement shall be submitted electronically to the HHS Office for Civil Rights, Rocky Mountain Region, by email to Andrea.Oliver@hhs.gov.
  2. Records. UCLAIP shall maintain records to document the information required by this Agreement and shall make them available to HHS within thirty (30) days of a written request throughout the duration of this Agreement.
  3. Complaints. For the duration of this Agreement, UCLAIP shall notify OCR if any person files a lawsuit, written complaint, or formal charge against UCLAIP with a state or federal agency, alleging that UCLAIP failed to provide reasonable modifications or otherwise failed to comply with Section 504, Title II, or Section 1557. Such notification must be provided in writing within thirty (30) days of the date UCLAIP receives notice of the allegation and must include, at a minimum, the nature of the allegation, the name of the person making the allegation, the status of any complaint or how the matter is being handled, and its ultimate disposition. UCLAIP will reference this provision of the Agreement in the notification to OCR.
  4. Compliance Report. UCLAIP shall provide a written report (“Compliance Report”) to OCR regarding the status of its compliance with this agreement annually, and thirty (30) days prior to end of the term of the Agreement.
  5. Required Content for Compliance Reports. Each Compliance Report shall include appropriate documentation of the steps UCLAIP has taken to comply with each term of this Agreement, including:
    1. Any revised policies and procedures;
    2. The distribution of policies and procedures;
    3. The training required by this Agreement, including training materials and attendance records;
    4. The list and description of any reasonable modifications made and any requests for reasonable modifications that have been refused; and
    5. The list of any grievances and/or complaints filed by participants or those acting on their behalf regarding allegations of discrimination on the basis of disability, including a description of the allegations, the date filed, the status and/or outcome of each grievance or complaint, and a copy of the grievance itself.

VII. Enforcement and Miscellaneous Provisions

  1. Duration of this Agreement. This Agreement will be in effect for two (2) years from the Effective Date, provided that OCR determines that UCLAIP demonstrated compliance with this Agreement, at which point OCR’s review and monitoring of this agreement will terminate.
  2. Compliance Review. HHS may review compliance with this Agreement at any time during the term of this Agreement. If OCR determines that UCLAIP has failed to substantially comply with any provision of this Agreement, the Parties will confer and attempt to reach agreement as to what steps may be necessary to resolve the compliance issues to both Parties’ satisfaction. If an agreement is not reached, OCR may terminate this Agreement within thirty (30) calendar days’ prior written notice to UCLAIP and take appropriate measures to effectuate UCLAIP’s compliance with Section 504, Title II, and Section 1557. Such measures may include OCR reopening its investigation of UCLAIP’s compliance with Section 504, Title II, and Section 1557. OCR may incorporate into its reopened investigation any relevant evidence of noncompliance with the Agreement and any relevant evidence obtained by OCR prior to signing of the Agreement. OCR may also exercise all rights available under Section 504, Title II, and Section 1557, including, but not limited to issuing noncompliance findings and the initiation of enforcement proceedings to terminate Federal financial assistance to UCLAIP.
  3. The Parties will not seek to have any court declare or determine that any portion of this Agreement is invalid, illegal, or unenforceable. In the event that a court of competent jurisdiction determines that any provision of this Agreement is unenforceable, such provision shall be severed from the Agreement and all other provisions shall remain valid and enforceable; provided, however, that if the severance of any such provision materially alters the rights or obligation of the Parties, they shall, through reasonable, good faith negotiations, agree upon such other amendments as may be necessary to restore the Parties as closely as possible to the relative rights and obligation initially intended to them within the Agreement.
  4. In consideration of the terms of this Agreement, OCR agrees to refrain from undertaking further investigation in OCR #08-21-427973 against UCLAIP based on the allegations lodged against UCLAIP, except as provided herein. Except as related to the above- mentioned complaint, nothing contained in this Agreement is intended or shall be construed as a waiver by OCR of any right to institute proceedings against UCLA Health or UCLAIP for violations of any statutes, regulations, or rules administered by OCR or to prevent or limit the investigative or enforcement authority of OCR with respect to any other discrimination complaints or compliance reviews under Section 504, Title II, or Section 1557.
  5. This Agreement does not constitute a finding by OCR that UCLAIP is in full compliance with Section 504, Title II, and Section 1557 or in noncompliance with Section 504, Title II, and Section 1557. This Agreement is not intended to remedy any other potential violations of Section 504, Title II, or Section 1557, or any other law that is not specifically addressed in this Agreement, including any other claims for discrimination on the basis of disability. Nothing in this Agreement relieves UCLAIP of its continuing obligations to comply fully with the requirements of Section 504, Title II, and Section 1557.
  6. Nothing in this Agreement shall be construed or deemed as an admission by UCLA Health or UCLAIP of any liability or fault regarding any of the complainant’s factual allegations that UCLAIP engaged in any wrongful or illegal activity, that any of OCR’s allegations, including but not limited to those relating to the complainant, are true, or that any person suffered any injury as a result of the events as alleged by OCR, and nothing in this Agreement shall be construed as a waiver by UCLA Health or UCLAIP to defend against any allegation claiming that UCLAIP violated any statutes, regulations, or rules administrated by OCR or to prevent or limit the right of UCLA Health or UCLAIP to challenge any claim alleging noncompliance under Section 504, Title II, or Section 1557.
  7. Entire Agreement. This Agreement constitutes the entire agreement between the Parties on the matters raised herein, and no prior or contemporaneous 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 is enforceable. This Agreement can only be modified by mutual written agreement of the Parties. This Agreement is limited to the facts set forth herein and does not purport to remedy any other potential violations of Section 504, Title II, Section 1557, or any other federal law.
  8. Binding. This Agreement is final and binding on the parties, including all principals, agents, executors, administrators, representatives, successors in interest, beneficiaries, assigns, heirs, and legal representatives thereof. Each party has a duty to so inform any such successor in interest.
  9. Signatories. The signatories represent that they have the authority to bind the respective parties identified below to the terms of this Agreement.
  10. Non-Waiver. Failure by any party to seek enforcement of this Agreement pursuant to its terms with respect to any instance or provision shall not be construed as a waiver to such enforcement with regard to other instances or provisions.
  11. Effective Date. The effective date of this Agreement is the date of the last signature below.
  12. Execution. This Agreement may be executed in counterparts, each of which constitutes an original and all of which constitute one and the same Agreement. Electronically transmitted signatures shall constitute acceptable, binding signatures for purposes of this Agreement.
  13. Publication or Disclosure of Agreement. HHS places no restriction on the publication of the Agreement. In addition, HHS may be required to disclose material related to this Agreement to any person upon request, consistent with the requirements of the Freedom of Information Act, 5 U.S.C. § 522, and its implementing regulation, 45 C.F.R. Part 5.

Agreed by the Parties:

For The Regents of the University of California on Behalf of Its UCLA Intervention Program:

/s/
Name: Steven Dubinett
Title: Dean, David Geffen School of Medicine at UCLA
Associate Vice Chancellor for Research, UCLA

Dated: 8/24/2024

For The United States Department of Health and Human Services:

/s/

Andrea Oliver
Regional Manager, Rocky Mountain Region
Office for Civil Rights

Dated: 8/24/2024

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