SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND THE OFFICE OF ADMINISTRATIVE COURTS, A DIVISION OF THE COLORADO DEPARTMENT OF PERSONNEL & ADMINISTRATION
DJ # 204-13-328

BACKGROUND

1. This Settlement Agreement (Agreement) is entered into among the United States Department of Justice (United States), by and through the U.S. Attorney’s Office for the District of Colorado, and the Office of Administrative Courts (OAC), an office of the Colorado Department of Personnel and Administration (DPA) (collectively the “Parties”).
2. The United States received a complaint that an individual who is deaf was not provided with a sign language interpreter for his worker’s compensation hearing in front of the OAC, and to obtain a sign language interpreter, the OAC required the individual to submit a doctor’s note stating that he is deaf. Ultimately, the OAC provided the complainant with a sign language interpreter at the next hearing without requiring a doctor’s note.

TITLE II COVERAGE AND DETERMINATIONS

3.  The United States Department of Justice is authorized under 42 U.S.C. § 12131 et seq. to investigate alleged violations of Title II of the ADA, which applies to public entities, including state governments, and prohibits discrimination on the basis of a person’s disability. 42 U.S.C. § 12132. The United States is authorized, where appropriate, to attempt informal resolution of investigations under Title II, such as through the terms of this Agreement. 28 C.F.R. § 35.172(c). 
4.  The ADA applies to the OAC and DPA because they are “public entities” pursuant to Title II of the ADA (Title II), 42 U.S.C. § 12131; 28 C.F.R. § 35.104. Title II prohibits discrimination against qualified individuals with disabilities on the basis of disability in the “services, programs, or activities of a public entity.” 42 U.S.C. § 12132; 28 C.F.R. § 35.130(a).
5.  Public entities are required to make reasonable modifications in policies, practices, or procedures when necessary to avoid discrimination on the basis of disability. 28 C.F.R. § 35.130(b)(7).
6. A public entity shall take appropriate steps to ensure that communications with applicants, participants, members of the public, and companions with disabilities, are as effective as communications with others. 28 C.F.R. § 35.160(a)(1). Public entities are required to furnish appropriate auxiliary aids and services where necessary to ensure that individuals with disabilities have an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity. 28 C.F.R. §§ 35.160(a)(2).
7. The OAC is responsible for adjudicating various types of administrative claims in Colorado, including workers’ compensation, professional licensing, public benefits including Medicaid, special education, campaign finance, and tax intercept, among others. Because of the types of cases the OAC hears, many parties in OAC proceedings are individuals with disabilities, and many cases involve self-represented litigants.
8. The OAC did not have a formalized policy and procedure for individuals with disabilities to request reasonable modifications and/or auxiliary aids and services, and for the OAC to evaluate such requests. 28 C.F.R. §§ 35.130(b)(7), 35.160(b).
9. In consideration of the terms of this Agreement, the United States agrees to close its investigation and refrain from filing suit under Title II of the ADA for the conduct described above; provided, however, that the United States reserves the right to file a civil lawsuit to enforce this Agreement pursuant to the terms of Paragraph 29, below.

TERMS AND CONDITIONS

10. General Nondiscrimination Obligations. The OAC and its officers, employees, agents, and all other persons in active concert or participation with them, including through contractual, licensing, or other arrangements, will not discriminate on the basis of disability, including against individuals who are deaf or hard of hearing, in the OAC’s services, programs, or activities, and will comply with all requirements of Title II of the ADA, 42 U.S.C. §§ 12131–12134, and its implementing regulation, 28 C.F.R. Part 35.
11. Reasonable Modification. The OAC shall continue to make reasonable modifications in its policies, practices, or procedures when the modifications are necessary to allow individuals with disabilities to participate in the OAC’s programs, services, or activities, unless the OAC can demonstrate that making the modifications would fundamentally alter the nature of OAC’s services, programs, or activities. 28 C.F.R. § 35.130(b)(7).
12. Effective Communication. The OAC shall continue to take appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with others so that they may participate in or benefit from the services, programs, and activities of the OAC on an equal basis in accordance with 28 C.F.R. § 35.160. But the OAC need not take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens. 28 C.F.R. § 35.164.
13. Provision of Appropriate Auxiliary Aids and Services. The OAC will continue to ensure that appropriate auxiliary aids and services, including qualified sign-language interpreters, are made available to individuals with disabilities when such aids and services are necessary to ensure effective communication. 28 C.F.R. § 35.160.
14. Primary Consideration. In determining what type of auxiliary aid or service is necessary, the OAC shall give primary consideration to the expressed preference for a particular auxiliary aid or service by the individual with a disability. Thus, OAC will inquire as to the choice of auxiliary aid or service of the individual with a disability and will honor the expressed choice unless the OAC can demonstrate that another equally effective means of communicating is available. 28 C.F.R. § 35.160(b)(2).  

ACTIONS TAKEN BY OAC

15. The Division Director is the designated employee responsible for overseeing requests for reasonable modifications and auxiliary aids and services, in collaboration with case managers. If the OAC designates another responsible employee during the term of this Agreement, it will notify the United States in writing. 
16. The OAC adopted a revised ADA Policy in November 2020. This Policy covers effective communication, reasonable modifications, and a complaint process for individuals with disabilities who use OAC’s services, programs, or activities. This Policy, as well as additional information for qualified individuals has been posted on the OAC website.
17. The OAC has provided ADA publications developed by the Civil Rights Division of the Department of Justice to its staff.

ACTIONS TO BE TAKEN BY OAC

18. Within 60 days of the Effective Date, OAC will submit documentation of the Division Director’s training regarding the OAC’s obligations under Title II of the ADA.
19. Within 60 days of the Effective Date, the OAC will submit its proposed live ADA training (which may be provided virtually) to the United States for its review and approval. The OAC agrees to add training on the OAC’s policy and procedures as described in Paragraph 14. Within 90 days of the United States’ approval of the training, the OAC shall ensure that all of its judges and staff have taken the training.  
20. The Division Director shall be responsible for maintaining copies of all requests for reasonable modification and auxiliary aids and services, and all of the OAC’s responses to such requests. The OAC will submit the information in this paragraph to the United States on November 1, 2021, and November 1, 2022.

IMPLEMENTATION AND ENFORCEMENT

20. Effective Date. The Effective Date of this Agreement is the date of the last signature below.
21. Monitoring. The OAC agrees to cooperate with the United States’ requests for additional documentation regarding compliance with this Agreement.
22. Lack of Waiver. Failure by the United States to enforce any provision of this Agreement is not a waiver of the United States’ right to enforce any provisions of this Agreement.
23. Other Violations. This Agreement shall have no impact upon the rights or claims of any other individual not identified in this Agreement who has made, or may make, claims against the OAC for issues discussed herein. This Agreement is not intended to remedy any potential violations of the ADA or any other law, other than those allegations specifically addressed in Paragraph 2 of this Agreement. Nothing in this Agreement shall preclude the United States from filing a separate action under the ADA for any alleged violation not covered by this Agreement. This Agreement does not affect the OAC’s continuing responsibility to comply with all aspects of the ADA.
24. Complete Agreement. This Agreement constitutes the entire agreement between the United States and OAC regarding the allegations described in Paragraph 2, and no prior or contemporaneous statement, promise, or agreement, either written or oral, made by any Party or agents of any Party, that is not contained in this Agreement, including any attachments, are enforceable. This Agreement can only be modified by mutual written agreement of the Parties.
25. Public Document. This Agreement is a public document. A copy of this document or any information contained in it may be made available to any person.
26. Binding. This Agreement is final and binding on the Parties, including all principals, agents, administrators, contractors, representatives, successors in interest, beneficiaries, assigns, and legal representatives thereof. The OAC has a duty to inform enforce compliance with this agreement on all OAC contractors and their employees.
27. Signatories Bind Parties. The persons signing on behalf of each Party represent that they are authorized to bind their respective Parties to this Agreement.
28. Severability. If any term of this Agreement is determined by any court of competent jurisdiction to be unenforceable, the other terms shall nonetheless remain in full force and effect; provided, however, that if the severance of any such provision materially alters the rights or obligations of the Parties, they shall engage in good faith negotiations in order to adopt mutually agreeable amendments to this Agreement as may be necessary to restore the Parties’ rights and obligations as closely as possible to those initially agreed upon.
29. Enforcement.  In the event that the United States determines the OAC is in breach of this Agreement, the United States will notify the OAC in writing, and the Parties agree to negotiate in good faith to resolve the breach for at least 30 days after OAC is notified. If the issue(s) are not resolved, the United States may seek judicial enforcement of this Agreement in federal district court for the District of Colorado.  
30. Term. The term of this Agreement shall be two years from the Effective Date.