Despite extraordinary push back, lawmakers in Congress voted in favor of H. R. 620, weakening the ADA rather than finding a solution for drive-by ADA lawsuits by unscrupulous lawyers.
“[Frivolous] ADA lawsuits…are not an ADA issue; they are a state and court problem,” disability rights lawyer Robyn Powell wrote in an op-ed for Rewire in May 2017. “Indeed, ethics rules bar attorneys from bringing frivolous lawsuits. Rather than go after people with disabilities, attention should be focused on stopping these few bad attorneys.” – The Americans With Disabilities Act Is Under Attack in Congress
With the passage of H.R. 620 on the morning of February 15, the incentive for businesses to comply with Title III of the ADA was changed. This means that access to any business can be limited or non-existent until there is a complaint. Should a disabled person find they are prevented from accessing the business, they are to write a letter to the business and ask for they need.
The written notice required under subparagraph (B) must also specify in detail the circumstances under which an individual was actually denied access to a public accommodation, including the address of property, the specific sections of the Americans with Disabilities Act alleged to have been violated, whether a request for assistance in removing an architectural barrier to access was made, and whether the barrier to access was a permanent or temporary barrier.” H.R. 620 Text – https://www.congress.gov/bill/115th-congress/house-bill/620/text
There is no legal support for that letter. This puts the responsibility on the disabled person and not a business. The business has 60 days to respond to the letter and after that, 120 days to make an effort to comply. Critics claim that “making an effort” can take years and that there is no way to enforce compliance.
“If they don’t comply within the time period, then file the lawsuit,” he said. “Go after them. But businesses should be able to have the notice of what the problem is so that they can fix it, which is the goal of the ADA.” The bill’s author Rep. Ted Poe (R-TX).
The Amendment claims that it will create guidelines for compliance by businesses to follow. However, the ADA has been the law for nearly 30 years and guidelines have been established already.
The Amendment claims it will create an education and training policy, costing millions in taxpayer money. Again, all the guidelines already exist and is part of code enforcement policies down to the state level.
The Amendment claims it will create a procedure for civil action and legal guidelines. This could be done without removing the civil rights of disabled persons and changing the ADA.
SEC. 5. MEDIATION FOR ADA ACTIONS RELATED TO ARCHITECTURAL BARRIERS.
The Judicial Conference of the United States shall, under rule 16 of the Federal Rules of Civil Procedure or any other applicable law, in consultation with property owners and representatives of the disability rights community, develop a model program to promote the use of alternative dispute resolution mechanisms, including a stay of discovery during mediation, to resolve claims of architectural barriers to access for public accommodations. To the extent practical, the Federal Judicial Center should provide a public comment period on any such proposal. The goal of the model program shall be to promote access quickly and efficiently without the need for costly litigation. The model program should include an expedited method for determining the relevant facts related to such barriers to access and steps taken before the commencement of litigation to resolve any issues related to access.
The driving force behind changing the ADA is due to the growing practice of ambulance chasing by people hired to look for businesses, both on and off-line, that may have missed a guideline or requirement for Section 508. When they find something to claim, they filed a civil complaint and sought financial rewards. Under Title III, there has never been a financial reward. However, state by state, the situation is different.
H.R. 620 is also tied to the banking industry, who had a stake in the outcome of the vote and attached amendments to this Bill.
Providing for consideration of the bill (H.R. 620) to amend the Americans with Disabilities Act of 1990 to promote compliance through education, to clarify the requirements for demand letters, to provide for a notice and cure period before the commencement of a private civil action, and for other purposes; providing for consideration of the bill (H.R. 3299) to amend the Revised Statutes, the Home Owners’ Loan Act, the Federal Credit Union Act, and the Federal Deposit Insurance Act to require the rate of interest on certain loans remain unchanged after transfer of the loan, and for other purposes; providing for consideration of the bill (H.R. 3978) to amend the Real Estate Settlement Procedures Act of 1974 to modify requirements related to mortgage disclosures, and for other purposes; and providing for proceedings during the period from February 16, 2018, through February 23, 2018. – Source https://www.govtrack.us/congress/bills/115/hres736/text
The bottom line is that this is a step back for anyone with a handicap. This includes disabled veterans and children born with a physical handicap. The ADA represents the rights of the elderly, sight impaired, mentally ill, and anyone relying on assistive devices such as canes and walkers. Disabled persons must now ask for what the rest of us can do with ease. They are being asked to wait for the business to learn how to fix the problem, and then wait until the issue is fixed. This waiting period is not in any written policy or procedure because that has not been created.
For websites, there is no policy in place, despite promises to create one by the US government. Most states choose to adhere to Section 508 and so do educational facilities. It is not enforceable to do so. From a practical standpoint, restricting access to a government website makes little sense.
More Accessibility Jobs for Websites?
It may seem as though people who are trained in accessibility testing would celebrate H.R. 620 because the government wants to invest in training more of them. However, historically speaking, accessibility testing is the very last process a business cares about when building a website or software application.
For off-line, a person can either enter a store and get what they need or ask for help, but with a website there is no guarantee of this same access, let alone help. To learn the code to meet WCAG or Section 508, and then perform testing and audits for compliance, requires someone with the proper skills and training. It’s expensive to hire accessibility people and there are not enough of them available. To save on costs, a company can get the information they need for free or take advantage of the many free or affordable testing tools that already exist. H.R. 620 ignores the present availability of skilled people that already exist. In fact, the government has its own https://www.digitalgov.gov/, which is a tremendous resource.
H.R. 620 now moves on the Senate.
HOUSE VOTES TO GUT THE AMERICANS WITH DISABILITIES ACT TO NIP ‘ABUSIVE LAWSUITS’
H.R. 620 Text – https://www.congress.gov/bill/115th-congress/house-bill/620/text
Rolling back the civil rights of the disabled harms us all