VOLUNTARY RESOLUTION AGREEMENT
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
OFFICE FOR CIVIL RIGHTS, REGION X
WASHINGTON STATE DEPARTMENT OF SOCIAL HEALTH SERVICES
This Voluntary Resolution Agreement (hereinafter, “the Agreement”) is entered into by the U.S. Department of Health and Human Services (HHS), Office for Civil Rights (OCR), and the Washington State Department of Social and Health Services (DSHS) to resolve an allegation identified in the investigation of OCR Complaint No. 07-73149, which was filed on June 12, 2007. DSHS operates the Fircrest Residential Habilitation Center (Fircrest), a residential habilitation center for children with developmental disabilities. The complaint alleged that DSHS discriminated against the children residing at Fircrest based on disability, by failing to ensure that they receive an appropriate education in violation of Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990.
II. Parties to this Agreement
A. The U.S. Department of Health and Human Services, Office for Civil Rights.
B. Washington State Department of Social and Health Services.
A. OCR is the HHS office charged with enforcing civil rights laws as they pertain to programs funded by HHS, and has jurisdiction over this complaint under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and its implementing regulations at 45 C.F.R. Part 84 (collectively, “Section 504”). Section 504 prohibits discrimination on the basis of disability in any program or activity receiving Federal financial assistance. DSHS is a recipient of Federal financial assistance.
B. OCR also has jurisdiction pursuant to Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12131 et seq., and its implementing regulations at 28 C.F.R. Part 35 (collectively, “Title II”). Title II prohibits discrimination on the basis of disability in State and local government programs and services. DSHS is a public entity that provides health and social services.
IV. General Provisions
A. In order to resolve this matter without further investigation or administrative proceedings and in consideration of OCR’s discontinuance of its investigation of DSHS, DSHS agrees to the terms of this Agreement with OCR, which addresses the issues identified in OCR Transaction No. 07-73149. This Agreement is not intended to constitute, nor shall it be deemed to constitute, an admission by DSHS of any violation of Section 504 or Title II.
B. As used in this Agreement, the term “residential habilitation center” (RHC) means Fircrest School, Frances Haddon Morgan Center, Lakeland Village, Rainier School, and Yakima Valley School in the State of Washington, collectively.
C. As used in this Agreement, the term “appropriate education” means the provision of regular or special education and related aids and services that are designed to meet the individual educational needs of children with disabilities as adequately as the needs of children without disabilities. See 45 CFR § 84.33(b)(1).
D. The terms of this Agreement do not address any other issues, investigations, reviews, or complaints of discrimination that are unrelated to the subject matter of this Agreement and that may be currently pending before OCR. Any unrelated compliance matters arising from subsequent reviews or investigations may be resolved separately. Nothing in this Agreement shall be construed to limit or restrict OCR’s statutory and regulatory authority to conduct future complaint investigations and compliance reviews related to DSHS and the subject matter of this Agreement.
E. This Agreement does not address or resolve issues involved in any other complaint investigation, compliance review, or administrative action under Federal laws by other Federal agencies, including any action or investigation under Section 504 or Title II.
F. In the event that OCR determines that DSHS has failed to fully implement or comply with any provision of this Agreement, OCR shall notify DSHS in writing. The notice shall include a statement of the basis for OCR’s determination and shall allow DSHS thirty (30) days to either: (a) explain in writing the reasons for its actions and describe the remedial actions that have been or shall be taken to achieve compliance with this Agreement; or (b) dispute the accuracy of OCR’s findings. If DSHS does not respond to the notice or if, upon review of DSHS’ response, OCR determines that DSHS has not complied with the terms of this Agreement, OCR reserves the right to reopen its investigation of DSHS’ compliance with Section 504 and Title II.OCR may incorporate into its reopened investigation any relevant evidence of noncompliance with this Agreement, and any relevant evidence gathered by OCR prior to the signing of this Agreement.
G. OCR may, at any time, review DSHS’ compliance with this Agreement. As a part of such review, OCR may require DSHS to provide written reports, permit inspection of its facilities, interview witnesses, and examine and copy DSHS documents.
H. OCR’s failure to enforce this entire Agreement or any provision thereof, including deadlines, shall not be construed as a waiver of OCR’s right to enforce other provisions of this Agreement, including deadlines.
I. Nothing in this Agreement relieves DSHS of its obligations to comply with other applicable nondiscrimination statutes and their implementing regulations.
J. OCR places no restriction on the publication of the terms of this Agreement. OCR may be required to release the Agreement and related materials to any person, upon request, consistent with the requirements of the Freedom of Information Act, 5 U.S.C. § 552, and its implementing regulation, at 45 C.F.R. Part 5. In the event OCR receives such a request, OCR will, as required by law, protect information that, if released, could constitute a clearly unwarranted invasion of personal privacy.
K. The individuals signing this Agreement represent that they are authorized to legally bind the parties to this Agreement.
L. This Agreement shall become effective as of the date of the last signature by a party to the Agreement (the “Effective Date”). This Agreement shall remain in effect until OCR’s written acceptance of the final report due under this Agreement (see VI.C.). At such time, the Agreement will terminate, provided DSHS is in compliance with the Agreement. Notwithstanding the aforementioned time limitation, DSHS acknowledges that it will comply with Section 504 for so long as it continues to receive Federal financial assistance and with Title II for so long as it continues to be a public entity providing health or social services.
M. OCR agrees to provide appropriate technical assistance to DSHS regarding compliance with this Agreement, as requested and as reasonably necessary.
V. Specific Provisions
A. DSHS shall draft and implement a policy and procedures to facilitate the timely provision of an appropriate education by the local school district to children with disabilities residing in RHCs.
B. DSHS shall draft and implement a policy and procedures to monitor the provision of regular or special education and related aids and services and to facilitate the provision of appropriate education consistent with the Individualized Education Programs or Section 504 Plans of children with disabilities residing in RHCs.
C. DSHS shall draft and implement a policy and procedures regarding the steps it will take in instances in which it appears that a child with a disability residing in an RHC may not be receiving an appropriate education. Such steps shall include: requiring RHCs to timely report to and attempt to resolve the matter with the local school district responsible for providing the appropriate education; requiring RHCs to notify DSHS Central Office about such situations in a timely manner; timely reporting to the Office of the Superintendent of Public Instruction (OSPI); and other appropriate responsive action, as necessary.
D. DSHS shall implement a mechanism to monitor the compliance of RHCs with its policies and procedures described in paragraphs V. A - C related to the provision of an appropriate education to children with disabilities residing in its facilities, and to take appropriate corrective action when an RHC is not in compliance with the policies or procedures.
E. DSHS shall provide for a grievance procedure, which incorporates minimum due process standards, provides for the prompt and equitable resolution of complaints alleging discrimination in violation of Section 504 and Title II, and provides for:
1. Filing of a written complaint by an individual who believes he or she or someone else has been subjected to discrimination in violation of Section 504 or Title II;
2. A thorough investigation of the complaint;
3. Issuance of a written decision on the complaint within ninety (90) calendar days of filing; and
4. Notice that use of the complaint resolution procedure does not preclude an individual from filing a complaint with OCR in HHS.
F. DSHS shall take appropriate initial and continuing steps to notify employees, beneficiaries, and parents of its policy of nondiscrimination under Section 504 and Title II and grievance procedure, including the name or title, office address, and telephone number of the employee or employees designated to carry out its responsibilities under Section 504 and Title II.
G. Within sixty (60) days after implementation of the policies and procedures described in paragraphs V. A - E, DSHS shall provide training on the policies and procedures to all employees of DSHS with responsibility for their implementation.
VI. Reporting Provisions
A. DSHS shall submit the foregoing policies, mechanisms, steps, and procedures in paragraphs V. A - F to OCR for OCR’s review and approval within ninety (90) days of the date of this Agreement.
B. Within sixty (60) days following receipt of OCR approval, DSHS shall provide OCR with documentation that the foregoing policies, mechanisms, steps, and procedures in paragraphs V. A - F have been implemented.
a. In the event that DSHS is unable to implement the foregoing policies, mechanisms, steps, and procedures within sixty (60) days after the receipt of OCR approval, DSHS shall request an extension of the sixty (60) day timeframe.
C. Within ninety (90) days after implementation of the policies and procedures, DSHS shall pde OCR documentation that the training described in V.G. has been completed.
/s/ May 14, 2009
Stan Marshburn, Interim Secretary Date
Washington State Department
of Social and Health Services
/s/ May 18, 2009
Linda Yuu Connor, Regional Manager Date
Office for Civil Rights, Region X
U.S. Department of Health and Human Services