Settlement Agreement United States Of America And South Carolina Department Of Social Services

The parties to this Settlement Agreement are the United States of America and the South Carolina Department of Social Services ("SCDSS").
The Americans with Disabilities Act of 1990, as amended, 42 U.S.C. ｧ 12101 et seq., is referred to as the "ADA."

The parties agree to the following:

BACKGROUND INFORMATION
SCDSS promulgated and enforces South Carolina Code Regulation 114-502(B)(4), which provides in relevant part that all individuals employed by licensed day care providers in the position of "caregiver" shall possess at least a high school diploma or General Educational Development Certificate ("GED").
"Caregiver" is defined as "any person whose duties include direct care, supervision and guidance of children in a day care facility." S.C. ST. 20-7-2700(i).
The United States has concluded that various provisions of Title I and Title II of the ADA which prohibit discrimination on the basis of disability are applicable to SCDSS's regulation of caregiver educational requirements. 42 U.S.C. ｧ 12112 and ｧ 12131.
The United States has concluded that the high school diploma/GED requirement contained in S.C. Code Regs. 114-502(B)(4) violates the ADA because it discriminates in employment against persons who, because of a disability, have obtained a "certificate of completion" from high school and have not received a diploma or GED, but who otherwise may be qualified to perform the essential functions of the position of caregiver.
The United States and SCDSS have determined that their respective interests can be met by resolving this matter and voluntarily entering into this Settlement Agreement.
The Attorney General is authorized by section 107(a) of Title I of the ADA, 42 U.S.C. ｧ 12117(a), to institute a civil action against a state or local government entity to enforce the provisions of Title I. In consideration of the above, the Attorney General shall not institute any civil action alleging discrimination by SCDSS in violation of the ADA with respect to the educational requirement for the position of caregiver contained in S.C. Code Regs. 114-502(B)(4).
Nothing herein shall be construed as an admission by SCDSS that it has violated any provision of the ADA. TERMS REGARDING NEW REQUIREMENTS FOR CAREGIVER POSITION
No later than ninety days from the effective date of this Settlement Agreement, in accordance with the State's procedures for agency rulemaking, SCDSS shall propose new regulations with respect to the educational requirement for the position of caregiver currently contained in S.C. Code Regs. 114-502(B)(4), and shall submit the same to the United States for review in accordance with paragraph twelve, below. The new requirements shall, at a minimum, satisfy the following concerns arising from the language currently contained in S.C. Regs. 114-502(B)(4):
1. The new requirements for the position of caregiver shall be job-related and consistent with business necessity, by accurately reflecting the actual knowledge, skills and abilities necessary to perform the essential functions of the position.
2. The new requirements shall ensure that applicants for employment for the position of caregiver shall not be disqualified from consideration for employment solely because that applicant has been unable, because of a disability, to obtain a high school diploma or GED but instead has obtained a certificate of completion from high school.
3. The new requirements shall ensure that a day care provider subject to the authority of SCDSS shall not be denied licensure/registration because the provider hires or employs an individual in the position of caregiver who is qualified to perform the essential functions of that position but who, because of a disability, has not obtained a high school diploma or GED but instead has obtained a certificate of completion from high school.
4. An individual employed as a caregiver who does not possess a high school diploma or GED but possesses a certificate of completion from high school shall be entitled to all of the same terms, conditions and requirements of employment as other caregivers employed by that day care provider who possess at least a high school diploma or GED.
This Settlement Agreement and regulations adopted in furtherance of it in no way shall be construed to avoid the requirements of 42 U.S.C. ｧ 12112(c) with respect to pre-employment offer medical and disability-related inquiries.
The United States shall be given the opportunity to review and submit suggestions for revisions with respect to the new regulations to be promulgated pursuant to this Settlement Agreement. In this regard, SCDSS shall provide the undersigned counsel for the United States with any such draft language upon completion of the same. The parties ultimately shall agree on the final language included within the new regulations to be promulgated.
Where applicable, SCDSS shall revise the literature it produces and disseminates to day care providers and other interested parties to reflect the matters addressed in this Settlement Agreement. Revisions shall include, but are not limited to, the language contained in: (1) "Child Development Quality Assurance Standards"; (2) "Child Care Regulatory Manual"; and (3) "Information Form: Licensing/Approval Study, Part B, Child Day Care Facility (13 or more children)."
Upon entering into this Settlement Agreement, SCDSS shall advise its agents and representatives who perform duties relating to the oversight of day care staff qualifications, as well as all day care providers under its authority, as to the matters addressed in this Settlement Agreement, and shall take immediate steps and best efforts to ensure that those agents, representatives and day care providers comply with its terms and conditions. OTHER PROVISIONS
The United States may review compliance with this Settlement Agreement at any time. The United States may institute a civil action in the appropriate United States District Court to enforce the applicable provisions of the ADA or this Settlement Agreement, or both, if the United States determines that this Settlement Agreement or any requirement thereof has been violated. Furthermore, the United States may institute a civil action to enforce the ADA if it determines that any rule(s) that ultimately takes effect is in violation of the ADA. Prior to instituting a civil enforcement action, the United States shall raise its concern(s) with SCDSS and shall attempt to resolve those concerns in good faith. SCDSS shall be given thirty days to address those concerns prior to the institution of an action by the United States.
Failure by the United States to enforce this entire Settlement Agreement or any of its provisions shall not be construed as a waiver of its right to enforce other provisions of this Settlement Agreement.
An individual executing this document in a representative capacity for either party is authorized to bind that party to this Settlement Agreement.
The effective date of this Settlement Agreement shall be the date of the last signature below.

On behalf of the South Carolina
Department of Social Services:

By: ______________________      Dated: ______________________
   Susan Anderson
   Office of the General Counsel
   South Carolina Department
   of Social Services
   Post Office Box 1520
   Columbia, South Carolina 29202
   (803) 898-7368

For the United States of America:
Bill Lann Lee,
Acting Assistant Attorney General

By: _______________________      Dated: ______________________
   John L. Wodatch
   Allison J. Nichol
   Steven E. Butler
   Disability Rights Section
   Civil Rights Division
   United States Department of Justice
   Post Office Box 66738
   Washington, D.C. 20035-6738
   (202) 514-8887