SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
AND
TEACHERS TEST PREP
UNDER THE AMERICANS WITH DISABILITIES ACT
DJ# 202-11-346

I. BACKGROUND

1. The Parties to this Settlement Agreement are the United States of America and Teachers Test Prep, Inc. (TTP), located in Mill Valley, California.
2. In November 2015, the United States Department of Justice (Department) initiated an investigation of TTP, a private entity, offering prep classes for teacher and other education personnel credentialing examinations.
3. TTP is a private entity that offers test preparation courses related to credentialing exams for professional purposes within the meaning of 42 U.S.C. § 12189 and 28 C.F.R. § 36.309.  Specifically, TTP offers online classes, tutoring and live classes at college campuses and conference facilities throughout California.
4. The Department initiated an investigation in response to a complaint that TTP’s online video courses were inaccessible to deaf individuals because they did not provide closed captions.  TTP cooperated with the Department during the investigation to ensure its classes were accessible, and voluntarily undertook efforts to provide videos with closed captioning such that as of the date of this Agreement, TTP represents that it provides closed captioning on all of its online videos.
5. Following its investigation, the Department substantiated the Complainant’s allegations that TTP violated Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12189, because: (1) TTP did not offer its online courses in a manner accessible to individuals with hearing disabilities and (2) TTP did not provide its one-on-one tutoring sessions in a manner accessible to persons with hearing disabilities, including providing qualified interpreters, which rendered the sessions inaccessible to the Complainant.
6. The Department is authorized to investigate alleged violations of the ADA, to use alternative means of dispute resolution, where appropriate, including settlement negotiations to resolve disputes, and to bring a civil action in federal court in any case where the Attorney General has reasonable cause to believe that a person or group of persons is engaged in a pattern or practice of discrimination or any person or group of persons has been discriminated against in violation of the Act and such discrimination raises an issue of general public importance.  42 U.S.C. §§ 12188(b), 12212; 28 C.F.R. §§ 36.502, 503, 506.
7. The United States and TTP agree that it is in the Parties’ best interests, and the United States believes that it is in the public interest, to resolve this matter on mutually agreeable terms.  The Parties have therefore voluntarily entered into this Agreement, as set forth below.  The Parties agree that this Agreement shall not be construed as an admission of liability by TTP and that TTP does not admit to any fault.  

II. ACTIONS TO BE TAKEN BY TTP

8. TTP will comply with the requirements of the ADA, 42 U.S.C. § 12189 and its implementing regulation, 28 C.F.R. § 36.309.  The ADA mandates TTP to offer its courses in a manner accessible to individuals with disabilities.  42 U.S.C. § 12189; 28 C.F.R. § 36.309. It also requires TTP to make modifications to its courses as necessary to ensure that the manner in which the courses are given are accessible to individuals with disabilities, including adaptation of the manner in which the course is conducted or course materials are distributed.  The ADA requires TTP to provide appropriate auxiliary aids and services, unless TTP can demonstrate that offering a particular auxiliary aid or service would fundamentally alter the course or would result in an undue burden.  Also, if alternative accessible arrangements are required, TTP must provide comparable conditions to those provided for nondisabled individuals.
9. ADA Course Modification Policies and Practices. Within thirty (30) days, TTP will confirm that its policies and practices reflect the requirements set forth in this Paragraph and send the full text of the policies and practices to the Department for its review and approval, not to be unreasonably withheld.  The Department will review and provide comments on TTP’s policies.  Assuming comments are provided, within fifteen (15) days of receiving the Department’s comments, TTP will incorporate those comments and submit revised written policies, practices, and procedures to the Department.  This process will continue until the Department approves the final policies and practices.  Within fifteen (15) days of the Department’s approval, TTP will implement the revised written policies and practices (assuming any revisions are needed to the current policies). 
1. TTP will adopt an ADA Course Modification Policy reflecting the requirements of Title III of the ADA and its implementing regulation.  The ADA Course Modification Policy will include the following text:
1. In accordance with the Americans with Disabilities Act (ADA), TTP is committed to ensuring that there is no discrimination against individuals with disabilities on the basis of disability in the full and equal enjoyment of TTP’s goods, services, facilities, privileges, advantages, or accommodations.  In furtherance of this commitment, TTP will offer courses, including one-on-one tutoring, in an accessible manner to individuals with disabilities.  42 U.S.C. § 12189; 28 C.F.R. § 36.309.  TTP will make modifications as are necessary to ensure that the place and manner in which the course or service is given are accessible to individuals with disabilities.  TTP will provide appropriate auxiliary aids and services for persons with impaired sensory, manual, or speaking skills, unless it can demonstrate that offering a particular auxiliary aid or service would fundamentally alter the course or would result in an undue burden.  TTP will administer courses that are accessible to individuals with disabilities or make alternative accessible arrangements.  Alternative arrangements must provide comparable conditions to those provided for nondisabled individuals, such as, for example, the same opportunity to interact with an instructor, and ask questions and receive answers in real-time.  28 C.F.R. § 36.309(c)(4)-(5).
2. Within fifteen (15) days, TTP will designate an ADA Course Modification Coordinator who will be responsible for overseeing, managing, and coordinating TTP’s obligations set forth in this Paragraph and Paragraphs 10 -12.  The ADA Course Modification Coordinator is authorized to receive and review requests for modifications, auxiliary aids or services.  The ADA Course Modification Coordinator’s contact information will be made available on TTP’s website, currently at http://www.teacherstestprep.com/, and disseminated with materials provided to enrollees and prospective enrollees.
3. TTP will ensure all of its online video content has captions.  For the purposes of this agreement, captions are defined as the visual display of the audio portion of a video file that is consistent with the Web Content Accessibility Guidelines (WCAG) 2.0 AA Guideline 1.2.2 or Guideline 1.2.4 (for live video). TTP represents that its current closed captioning provided in its online videos is compliant with these guidelines.
4. Information explaining how to request modifications, auxiliary aids or services will be publicized on TTP’s website, currently athttp://www.teacherstestprep.com/ and disseminated with any enrollment or application materials provided to enrollees and prospective enrollees.  TTP will make individualized determinations based on the specific facts of each request and will not apply a general prohibition against providing particular types of modifications, auxiliary aids or services.  Within one week of receiving a request, TTP, through its ADA Course Modification Coordinator, will adhere to the following procedures for considering the request:
1. Grant the request;
2. Make a narrowly tailored request for more information about the request and, within three (3) days of receiving the information, grant or deny the request; or
3. Deny the request upon establishing that offering the particular auxiliary aid or service would fundamentally alter the course or would result in an undue burden.

TTP will document each reason why additional information is needed and its reason for the denial; TTP will provide such documentation to the United States consistent with the requirements of Paragraph 12, below. 

5. Within thirty (30) days of the United States’ approval of the revised ADA Course Modification Policy and Captioning Protocols, TTP will submit for approval by the United States, not to be unreasonably withheld, a proposed ADA Course Modification Training (Training).  Within thirty (30) days of the United States’ approval of the Training, the Training will be provided to the ADA Course Modification Coordinator and any TTP staff who may receive a request by an individual with a disability for a necessary modification, auxiliary aid or service. 
1. The Training will address the requirements of Title III of the ADA, including:
1. TTP’s nondiscrimination obligations under the ADA, as well as the requirements in this Agreement; and
2. An overview of the terms and obligations of this Agreement (TTP will provide a copy of this Agreement to each training participant).
2. The Training will be conducted by a trainer with substantive legal knowledge of the ADA. TTP will submit the trainer's name to the United States for approval, not to be unreasonably withheld, prior to the ADA Training.
   1. For persons who must receive Training pursuant to this Agreement, but who did not receive Training on its designated annual date required under this Agreement, TTP will provide Training to such persons within thirty (30) days after the individual's affiliation with TTP or within thirty (30) days of their return to TTP (for instance, from leave).
   2. For each session of the Training conducted under this Agreement, TTP will maintain attendance logs reflecting the date of the Training, names and titles of attendees, and the attendees' signatures. TTP will provide the United States with the logs reflecting the Trainings that it has conducted pursuant to this Agreement pursuant to the reporting requirements set forth in Paragraph 12.

III. INDIVIDUAL RELIEF

10. TTP will pay five thousand dollars ($5,000.00) to the Complainant within fifteen (15) days of receiving Complainant’s signed copy of the attached release (Attachment A).  TTP will provide written notification to counsel for the United States, including a copy of the check, when it has completed the actions described in this Paragraph.
11. TTP will also provide the Complainant with one Golden Apple Program – CBEST Writing pursuant to the terms and conditions of that program, at no cost to the Complainant.  Complainant shall contact Robert Duncan (robert.duncan@teacherstestprep.com) to initiate the program and with any questions or concerns she may have regarding the program or any other services TTP provides.   

REPORTING REQUIREMENTS

12. TTP will provide the following information in electronic format to the United States:
1. Within ninety (90) days, and every nine (9) months thereafter for the term of this Agreement, TTP will submit a report in electronic format to the United States detailing TTP’s compliance with this Agreement, including the requirements identified in Paragraphs 8-11.
2. Each report will include an account from the ADA Course Modification Coordinator detailing TTP’s compliance or any lack thereof with the requirements set forth in Paragraph 9.  It will include copies of any requests for modifications, auxiliary aids or services.  If no action is taken or if more information is requested in response to a particular request, TTP will include relevant documentation supporting its decision, an explanation why and advise the United States of the ultimate outcome.  TTP will also explain:
1. The extent to which it has remediated its online content as set forth in Paragraph 9c;
2. A description of the steps to be taken to make the content accessible; and
3. A date by when such content will be fully accessible.
3. Each report will include an explanation of any fundamental alteration or undue burden defense that TTP asserts over a specific request for a modification, auxiliary aid or service as set forth in Paragraph 9. 
4. Unless otherwise instructed by the United States, all notices and reports that TTP is required to send to the United States under this Agreement, will be sent electronically to: Charlotte Lanvers at charlotte.lanvers@usdoj.gov.

V. ENFORCEMENT AND MISCELLANEOUS PROVISIONS

13. Effective Date: The Effective Date of this Agreement is the date of the last signature below.  All time periods specified in this Agreement will run from the Effective Date, unless otherwise specified.
14. Term: The duration of this Agreement will be two (2) years from the Effective Date.
15. Consideration: In consideration for this Agreement, the United States will take no further enforcement action related to the facts in paragraphs 2-5, except as provided in Paragraphs 16-17.  The Parties agree and acknowledge that this consideration is adequate and sufficient.
16. Enforcement: The United States may review compliance with this Agreement at any time.  TTP will cooperate fully with the United States’ efforts to monitor compliance with this Agreement, including but not limited to, providing the United States with reasonably requested information.  If the United States believes that TTP has failed to comply with any requirement of this Agreement or that any requirement has been violated, the United States will notify TTP in writing and the Parties will attempt to resolve the issue in good faith.  If the Parties are unable to reach a satisfactory conclusion within thirty (30) days of the date the United States notifies TTP, the United States may file a civil action in federal district court to enforce the terms of this Agreement, and take any other action to enforce Title III of the ADA.
17. Non-Waiver: Failure by the United States to enforce any provision of this Agreement will not be construed as a waiver of its right to enforce any provision of this Agreement.
18. Modifications: Any modification of this Agreement requires the written consent of the Parties; provided that, the United States and TTP may agree in writing to extend the applicable deadlines specified in this Agreement.  With regard to any of the deadlines specified in this Agreement, TTP will notify the United States at least ten (10) business days before any deadline of an anticipated inability to meet the deadline and the reasons why, and will request an extension of time to a specific date.  The United States will not unreasonably deny requested extensions made in good faith and following TTP’s due diligence to meet such a requirement.
19. Counterparts: This Agreement may be executed in counterparts, each of which will be deemed to be an original, but all of which, taken together, will constitute one and the same Agreement.  Facsimile or electronic signatures are acceptable.
20. Severability: If any provision of this Agreement is determined to be invalid, unenforceable, or otherwise contrary to applicable law, such provision will be deemed restated to reflect as nearly as possible and to the fullest extent permitted by applicable law its original intent and will not, in any event, affect any other provisions, all of which will remain valid and enforceable to the fullest extent permitted by applicable law.
21. Other Violations: This Agreement is not intended to remedy any potential violations of the ADA or any other law, other than those specifically addressed by this Agreement in Paragraphs 2–5.  Nothing in this Agreement will preclude the United States from filing a separate action under the ADA for any alleged violation not covered by this Agreement.
22. Entire Agreement: This Agreement, including Attachment A, contains the entire agreement between the United States and TTP concerning the subject matter described in Paragraphs 2–5, and no other statement, promise, or agreement, either written or oral, made by any party or agent of any party, that is not contained in this Agreement, and concerns the subject matter described in Paragraphs 2–5, will be enforceable.
23. Binding Nature of Agreement: This Agreement will be binding on TTP and its subsidiaries, agents, employees, officers, and contractors.  In the event that TTP seeks to transfer or assign all or part of its interest in any service covered by this Agreement, and the successor or assignee intends on carrying on the same or similar use of the website or online services, then as a condition of transfer or sale, TTP will obtain the written accession of the successor or assignee to any obligations remaining under this Agreement for the remaining term of this Agreement.
24. Publicity: This Agreement is a public document.
25. Authority: The signatories below for TTP represent that they have the authority to bind TTP to the terms of this Agreement.

By their signatures below, the Parties respectfully consent to the execution of all aspects of this Agreement.