The Colorado Supreme Court enacted a new set of rules in March governing how those seeking to enter the legal profession may seek disability-related accommodations on the bar exam and licensed legal paraprofessional exam.

The rules received criticism from some attorneys and lawmakers, who noted the material that applicants must provide to exam administrators about their disability is more detailed than envisioned in a 2024 state law designed to lessen “excessive and burdensome documentation demands.” 

Jessica E. Yates, who heads the Office of Attorney Regulation Counsel, spoke with Colorado Politics about how test administrators comply with their responsibilities under state and federal law while responding to individual accommodations requests.

Yates said that while only 3.2% of applicants to the July 2019 bar exam requested disability accommodations, that increased to 7.7% for July 2024. Attorney regulators granted 64% of the requests for the July 2019 test and 84% five years later. At the same time, the Office of Attorney Regulation Counsel has also been the subject of lawsuits over its denials.

“I hope that when people are reviewing this holistically together with federal law and with the practical realities of what medical professionals provide,” Yates said, “that they don’t see this as somehow additional or onerous or burdensome.”

Colorado Politics: In plain English, can you describe what disability accommodations for the bar exam are and who is allowed to ask for them?

Jessica Yates: Disability accommodations for the bar exam are legally required accommodations that could be in the form of a time change, it could be in terms of location change, it could be an auxiliary aid, it could be a variety of things. They’re all tied to an individual disability that affects a major life activity as defined under the Americans with Disabilities Act.

Anyone can request an accommodation. We ask that they read the guidance and be able to fill out that application in a timely manner so that we can make sure we can meet their needs.

CP: Why is it important for your office to look independently and perhaps critically at requests for accommodations that come in?

Yates: The first part of it is to make sure that we are meeting the needs of the applicant pursuant to federal and state law. To be able to do that, we need to understand what they need. The second part of it is to have a fair process for everyone because the point of offering an accommodation is so someone with a disability can have equal access. It’s to level the playing field as to that disability and to that applicant.

If we don’t make an effort to make an individualized determination, it’s not fair to that applicant or to other applicants who are taking a high-stakes exam and competing for a passing score.

CP: Let’s start at the top. You mentioned the Americans with Disabilities Act. What does federal law and federal regulation have to say about how Colorado should treat accommodations requests?

Yates: The federal regulations that we follow relate to accommodations for standardized tests. These are existing federal regulations that the Department of Justice has promulgated that, say, state and local governments as well as certain types of commercial facilities that offer examinations and courses, that they have to follow. That regulation, it is different than, for example, making sure a building has an elevator for someone who uses a wheelchair. It does require an evaluation on an individual case-by-case basis.

CP: Let’s move to state law. As you know, last year the General Assembly enacted some new requirements for testing accommodations. So, under the current law, what are the additional or different considerations you have to make for accommodations?

Yates: I want to make sure that it is clear to anyone who looks at that state law that it does incorporate the definition of “disability” under federal law, under the ADA. So, the state law does purport to be consistent with federal law and that is our view of how to comply with the state law.

The state law does not preclude an individualized assessment and I think that caught some people by surprise. But it does ask our office to give substantial weight to someone’s prior accommodation on another professional licensure exam or standardized test. What we are doing now is an attempt to be consistent with both federal and state law. Which means that when someone has received an accommodation on either another standardized test or professional licensure test, they can request the same accommodation from us under the streamlined process.

What can be confusing about that is sometimes applicants have received different accommodations on different standardized tests. So, they might, for example in the past, received 25% more time on one test, 50% more time on another and 100% more time on yet a third test. We do need to evaluate, again on that individualized determination case-by-case basis, what would be the appropriate accommodation for the bar exam.

CP: And under both state and federal law, how does your office interpret a situation where a test taker does not have the disability diagnosed, or maybe has a different disability diagnosed, until sometime during law school, such that they don’t have that record of accommodations for a prior standardized exam?

Yates: You don’t need a diagnosis to be entitled to request an accommodation and be entitled to an accommodation on the bar exam. A diagnosis helps us understand what the basis is for the request, but it’s not required. So, what we did before the rule change — we rolled this out in September of last year — we have new online guidance about how applicants can request testing accommodations, including situations where they don’t have a diagnosis.

For example, they could have letters or even reports from individuals who know them professionally, but also know them very well and have seen them perform in particular settings over time who can attest to the impact of their impairment on their ability to participate in the major life activity of testing. And if they can provide that information for our office, we don’t necessarily need someone to go get expensive testing to confirm a diagnosis.

CP: So, with the Supreme Court’s rules that it issued last month, how do they add to or clarify or change the requirements you just talked about?

Yates: The Supreme Court’s rules are in line with our online guidance and are consistent with ADA and state law. I think that some people viewed the state law as requiring our office to rubber stamp an accommodation determination that had been made in the past by a different entity. Because federal law does require that individualized determination, we are following federal law. So, the new rule and our online guidance does require at least enough information from the applicant so we can satisfy that federal requirement for an individualized determination.

CP: Why is it not enough to say if the evidence was there in the past to entitle an applicant to accommodations for a standardized test similar to the bar exam, that means unless something has drastically changed, the person should receive the same accommodation on the bar exam?

Yates: A lot of times the evidence has not changed and we do end up relying on that previous determination. But, as in the example I gave where someone has received different accommodations for the same disability, we do need to figure out what’s the right answer for the bar exam. To do that, we need another piece of information from the applicant, which is how are they doing now and what have been the recent accommodations or recent additional information that would help inform that decision?

CP: If a person clearly had more time, a distraction free-environment or whatever it may be on the prior standardized test, does your office start from a position of, “Well, they’re at least entitled to that on the bar exam. If they want anything different, then that’s where this process kicks in?”

Yates: They would qualify for the same accommodation. We still need to understand what it was granted for in the past because maybe the situation is now demanding additional time or additional accommodations. Or if someone had been undergoing cancer treatment in the past and, you know, four years ago an accommodation was appropriate because of their cancer treatment, it might no longer apply to the situation now where they’ve been in remission.

That’s really the reason that we are asking for that additional piece of information, which, again, does not require someone to go get expensive diagnostic testing all over again if they had that accommodation in the past.

CP: I understand the Office of Attorney Admissions has its own experts it relies upon to evaluate requests, even those that are endorsed by an applicant’s medical professional. Is there any kind of restraint on these experts’ ability to look at the documentation and go, “Nope, I don’t think this is valid. Let’s deny it?”

Yates: They can offer whatever opinion they want but that doesn’t mean that we have to accept that opinion. If they offer that opinion, we would probably have a conversation with the expert about why they believed the prior accommodation was no longer appropriate or why they believed the diagnosis that had been supplied didn’t support an accommodation. Sometimes we agree and sometimes we don’t agree.

CP: Do you know how often your office overrides an expert’s recommendations or disagrees with them?

Yates: I don’t actually off the top of my head. I know that we don’t really collect numbers in that way. Also, through our revised guidance that we rolled out last September, we have stopped relying on experts as much.

CP: Are these volunteers or are they paid by the judicial branch?

Yates: The experts are paid by our office. Those experts, the cost of administering the exam, extra proctoring costs, extra facility costs — all of those things are paid for by the funds from our office. And that’s primarily attorney registration fees and some applicant fees.

CP: And do the experts get compensated differently based on whether they recommend denial or recommend acceptance of the accommodation request?

Yates: They do not. They get paid a flat rate.

CP: What did you hear from the law schools about what they wanted to see in the accommodations process? Because I believe in some of the comments during the consideration of the rule and in comments I’ve heard elsewhere, students are being advised in their first year of law school they need to start planning for accommodations on the bar exam. Is that a concern?

Yates: When we reached out to the law schools in the fall about the new guidance, we reached out to their student affairs deans and assistant deans to get the word out. What we learned in the public hearing in December is that that word didn’t reach the students involved. It was very clear the disability law students’ association at DU, for example, who came to speak, were unaware of the online guidance.

After the hearing, I actually stayed in the courtroom and talked with them for quite some time. Helped give them some guidance about where they could find that on the Internet. I was not entirely sure why the word hadn’t reached them.

We were also concerned that what we were hearing is they learned a lot about the accommodation process from other students, rather than the schools themselves. I’m not sure that anybody would intentionally misinform anyone else, but I think students don’t necessarily have all the information about the process and maybe inadvertently repeat myths or repeat erroneous information.

As a result of the fact that we’ve done this outreach for the July 2025 exam — to be very clear, the final deadline has not passed, so these are preliminary numbers — but right now we have 560 applications for the July 2025 exams in hand. And 71 of those applicants have indicated that they plan to apply for an accommodation. That would be a significantly higher proportion and higher number from prior exams.

CP: Looking at the state law, House Bill 1342 from last year, and comparing it side-by-side with the rule change the Supreme Court adopted, there is a part dealing with what happens when the applicant provides documentation from a medical professional about the current disability and why some accommodation on the bar exam, specifically, is necessary.

I think you would agree that the state law is much more minimal in what it requires when administrators receive that documentation than the Supreme Court rule. I think the phrase people used in the hearing was that the rule is focused on proving the disability again. What would you say about the level of detail that is required under this rule that is not present in the law itself?

Yates: For folks who have that concern, I would suggest they look elsewhere in the same law. It does incorporate the ADA and its regulations, so I don’t think that there truly could be said to have a legislative intent to have a state law that doesn’t comply with federal law. I never heard that from any of the sponsors that they plan to disregard federal law.

And federal law does require an individualized determination. The requirement that if there is going to be an applicant relying on a recommendation from a medical professional, that there be some explanation of what the accommodation is for, I think is just extremely minimal in and of itself. Based on what we see in our office from medical professionals, they always provide an explanation because of their own professional duties about how they reached the conclusion that they did that someone should have an accommodation for the bar exam.

I hope that when people are reviewing this holistically together with federal law and with the practical realities of what medical professionals provide, that they don’t see this as somehow additional or onerous or burdensome.

CP: If the purpose of both federal law and state law is to provide protections for the disabled applicant, to ensure they have that level playing field, why is it inconsistent with federal law to say state law has fewer burdens for that disabled applicant to satisfy when they’re submitting the request? In effect, it provides more protections to that person than federal law might require if there’s hoops for an individualized assessment?

Yates: I do think you can say that state law has fewer burdens, as long as it allows the administrative entity to comply with its requirements for an individualized assessment. And I think that we’ve accomplished that. We’ve had this situation, where applicants have had, for the same disability, different types of accommodations given to them over the years. It would not be fair to simply take the one that’s the most recent and the most minimal and just declare, “Oh, that’s what we’re going to rely on.” That’s consistent with our own federal obligations to perform the individualized determinations — again, with fewer burdens than I think people are assuming under the new process.