VOLUNTARY COMPLIANCE AGREEMENT
BETWEEN
THE UNITED STATES OF AMERICA
AND
THE HUDSON PUBLIC SCHOOLS DISTRICT

The Parties

1. The parties to this Voluntary Compliance Agreement (“Agreement”) are the United States of America (“the United States”) and the Hudson Public Schools District (“Hudson”), located in Hudson, Massachusetts.

Background

2. Hudson is a public entity covered by Title II of the ADA. 42 U.S.C. §§ 12131-12132; 28 C.F.R. § 35.104.  Title II of the ADA prohibits a public entity from discriminating against any individual on the basis of that disability by excluding the individual from participation in or denying such individual the benefits of the services, programs, and activities of that public entity.  42 U.S.C. § 12132; 28 C.F.R. § 35.130(a). A public entity must make reasonable modifications to its policies, practices and procedures when the modifications are necessary to avoid discrimination on the basis of disability unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the services, programs or activities it provides.  28 C.F.R § 35.130(b)(7)(i).
3. Title II further requires a public entity to take appropriate steps, including where necessary the furnishing of appropriate auxiliary aids and services, to ensure communications with participants with disabilities are as effective as communications with others. 42 U.S.C. § 12132; 28 C.F.R. § 35.160(a)(1), (b)(1). Moreover, Title II requires that public entities give primary consideration to the request of an individual with a disability when determining whether a particular auxiliary aid or service is necessary.  28 C.F.R. § 35.160(b)(2). 
4. This matter was initiated by the U.S. Attorney’s Office for the District of Massachusetts following a report alleging that Hudson discriminated on the basis of disability in violation of Title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12131-12134, and its implementing regulation, 28 C.F.R. Part 35.
5. The report concerned K.C., a then 12-year-old middle school student.  Due to an immunodeficiency disorder, medical issues stemming from that disorder, and requisite treatment, K.C. was unable to attend more than one third of the school days between the fall of 2014 and the spring of 2017.  The immunodeficiency is a physical impairment that substantially limits one or more of K.C.’s major life activities and accordingly is a “disability” under Title II of the ADA.  28 C.F.R. § 35.108.
6. Beginning in 2015, Hudson was offered without charge use of an auxiliary aid, specifically a robot capable of seeing, hearing and moving around a classroom under K.C.’s control, to determine whether the robot would be effective in providing a school experience to K.C. and improved communication when medically homebound. The robot had, among other components, a monitor and speakers that would enable K.C. to interact with teachers and fellow students and to participate in interactive class work. 
7. The United States determined that during the 2016-2017 school year, Hudson failed to take appropriate steps to determine whether the auxiliary aid that was offered to K.C. and requested as his appropriate auxiliary aid was necessary and to give primary consideration to K.C.’s request to use as an appropriate auxiliary aid the mobile, robotic telepresence in school during the 2016-2017 school year.  Hudson did not demonstrate that use of the particular auxiliary aid would be a fundamental alteration to the nature of its programs, services or activities, nor did Hudson demonstrate that its use would result in undue financial and administrative burdens.  28 C.F.R. § 35.164.  Accordingly, Hudson failed to ensure that it furnished appropriate auxiliary aids and services where necessary to afford K.C. an equal opportunity to participate in, and enjoy the benefits of Hudson’s programs, services, and activities, in particular K.C.’s active participation in the classroom instruction experience.
8. During the summer of 2017, Hudson hired a new superintendent.  Under new academic leadership, Hudson conducted the appropriate assessment in the beginning of the 2017-2018 academic year of K.C.’s circumstances and requested auxiliary aid.  At that time, Hudson determined that K.C.’s request was appropriate and necessary, and would improve communication with K.C.  K.C. and Hudson presently are using the robotic telepresence successfully in combination with other accommodations.
9.  While Hudson denies that it violated the ADA during the 2016-2017 school year, Hudson is committed to incorporating a mobile, robotic telepresence into the classroom and school to the extent necessary to ensure that K.C. is afforded an equal opportunity to participate in and benefit from the aids, benefits, and services that Hudson provides, will enable school communications with him to be as effective as with other students, and more generally to complying fully requirements of the ADA.
10. As a result of the United States’ investigation, and because Hudson is fully committed to complying with the ADA. Hudson voluntarily agrees as follows:

Actions to be Taken by Hudson

11. General Obligations.  Hudson agrees to:
1. ensure no qualified  individual with a disability shall, by reason of that disability, be excluded from participation in or denied the benefits of its services, programs, or activities, or be subjected to discrimination,  42 U.S.C. §§ 12132;
2. make reasonable modifications to its policies, practices and procedures when the modifications are necessary to avoid discrimination on the basis of disability unless it can demonstrate that making the modifications would fundamentally alter the nature of the services, programs and activities it provides; and
3. take appropriate steps, including where necessary, to  furnish appropriate auxiliary aids and services, to ensure communications with participants with disabilities are as effective as communications with others. ¹
12. Disability Equal Opportunity Policy.  On or before July 1, 2018, Hudson will submit to the United States for review and approval a written policy that Hudson will follow henceforth to ensure that it will take appropriate steps to ensure that communications with its students, and other individuals with disabilities, are as effective as communications with others.  Hudson will also include in the policy a procedure for ensuring that it will provide reasonable modifications in its policies, practices, and procedures when necessary to avoid discrimination on the basis of disability.  The policy will include, at a minimum, the following:
1. A parent/guardian of a student enrolled in or attending Hudson shall have the opportunity to notify Hudson that a student has a disability and to seek appropriate auxiliary aids or services, or to request reasonable modifications.
2. When Hudson receives such a request pursuant to the ADA,  or identifies a disability for which it may have an ADA obligation in the course of its evaluation to determine if a child is a child with a disability under Section 504 or the IDEA, Hudson, in addition to its requirements under Section 504 and the IDEA, will also conduct the appropriate  individualized inquiries under the ADA. 
3. Hudson will provide to a student’s teachers and administrators all training necessary to fully utilize any new or infrequently used technology  as an appropriate auxiliary aid or serviced.    This training will include a general overview of the student’s disability as well as how to provide the reasonable modification.
13. Dissemination.  Annually at the start of the 2018-19 school year and every school year for the term of this agreement, Hudson will distribute a copy of the Disability Equal Opportunity Policy to every teacher, administrator, and staff member, or ensure that the policy is made available in any training materials or teacher handbook.  Hudson will also include this policy in any student, parent, or guardian handbook and post a link to it prominently on any website for students, parents, and guardians.  Hudson may incorporate dissemination of the Disability Equal Opportunity Policy with its dissemination of its section 504 and/or IDEA policies, practices or procedures.
14. Training.  At the start of the 2018-19 school year and annually after that, Hudson shall provide comprehensive training on the policies and procedures set forth in paragraph 12 to all individuals with responsibility for considering requests for reasonable modifications of any Hudson policy, practice, or procedure.
15. Hudson will not retaliate against, or coerce in any way, any person trying to exercise the rights of any person under this Agreement.

Consideration

16. In consideration of the Actions to be taken by Hudson and other terms of this agreement, the Department of Justice agrees to refrain from undertaking further investigation into or from filing civil suit alleging ADA violations based on the complaint described herein, except as provided below.

Enforcement and Implementation

17. This Agreement shall terminate three years from the date of execution of this Agreement.
18. The Superintendent of Hudson will be responsible for ensuring that the policies and procedures set forth in this Agreement are complied with and implemented.
19. The United States may review compliance with this Agreement at any time. If the United States believes that this Agreement or any portion of it has been violated, it will raise its concerns with Hudson, and the parties will attempt to resolve the concerns in good faith. The United States will give Hudson thirty (30) days from the date it notifies Hudson of any breach of this Agreement to cure that breach, before instituting any court action.  If the parties are unable to reach a satisfactory resolution within that period, the United States may bring a civil action in federal district court to enforce this Agreement or Title II, and may in such action seek any relief available under law.
20. Failure by the United States to enforce this Agreement with regard to any deadline or any other provision herein shall not be construed as a waiver of the United States’ right to enforce other deadlines and provisions of this Agreement.
21. This Agreement shall be binding on the United States and on Hudson, its agents, employees, and staff.
22. This Agreement constitutes the entire agreement between the United States and Hudson on the matters raised in the Agreement and no other statement, promise, or agreement, either written or oral, made by any party or agents of any party, that is not contained in this written Agreement, including its attachments, shall be enforceable.
23. The person signing this Agreement for Hudson represents that he or she is authorized to bind Hudson to this Agreement and is fully authorized to execute this Agreement on behalf of Hudson.
24. All parties consent to the United States’ disclosure of this Agreement, and information about this Agreement, to the public.
25. A copy of this document or any information contained in it will be made available to any person, on request, by Hudson or the United States.
26. This Agreement is effective May 3, 2018 and expires May 3, 2021.