How Bad Are Proposed Changes to the Americans with Disabilities Act?

How Bad Are Proposed Changes to the Americans with Disabilities Act?

My knee was jerking the other day. It wasn’t my MS, it was my knee-jerk reaction to the passage in the U.S. House of Representatives of a bill called the ADA Education and Reform Act of 2017 (HR 620).

Before the vote, people with disabilities demonstrated inside the Capitol against a bill that seeks to modify the Americans with Disabilities Act, or ADA. Some were arrested. The Disability Rights Education and Defense Fund called the bill “exceptionally harmful” and wrote on its website that it “would turn people with disabilities into second-class citizens, and its priorities are profoundly skewed. This bill goes against the very principles of an inclusive society that America is all about.”

A headline on Newsweek‘s website screamed: “HOUSE VOTES TO GUT THE AMERICANS WITH DISABILITIES ACT TO NIP ‘ABUSIVE LAWSUITS.'”

The American Civil Liberties Union put out a “Myths and Truths” list about the proposal, saying, “this bill undermines the very purpose of the landmark civil rights law, the Americans with Disabilities Act (ADA), and harms people with disabilities.”

Last September, more than 200 disability rights organizations sent a letter to the measure’s sponsors, claiming:

“…the burden of protecting the right to access a public place is shifted to the person with the disability, who first has to be denied access; then must determine that violations of the law have occurred; then must provide the business with specific notice of which provisions of the law were violated and when; and finally, the aggrieved person with the disability must afford the business a lengthy period to correct the problem.”

Join the protests?

I was all set to get on the protest bandwagon. Then I read an article in The National Law Review that detailed the new requirements. I also read the actual bill. Here’s what I learned:

  • The bill only modifies the section of the ADA that involves barriers to access in areas of businesses and to public accommodations, such as hotels, restaurants, and swimming pools.
  • If someone discovers a barrier at a business, before bringing a lawsuit under the ADA the person would now have to give the owner of that business written notice of the problem, including its specific location, the section of the ADA that was violated, whether the barrier was temporary or permanent, and whether anyone was asked to request to remove the barrier.
  • The business owner will be given 60 days to respond and 120 days to remove, or “make substantial progress” at removing, the barrier.

The modifications would also require the Justice Department to develop a program to educate state and local governments and property owners about the ADA’s accessibility requirements. It would also require the development of a program to promote the use of mechanisms such as mediation to try to resolve ADA complaints before they’re brought to court.

Is that all bad?

I have to ask myself how onerous these new requirements are.

I’ve had multiple sclerosis since 1980. For the past 13 years, I’ve used an electric scooter to get around. Occasionally, I’ve run into architectural barriers, such as a lack of an automatic door opener. When I’ve brought this to the attention of the business or building owner, the problem was corrected — probably faster than if my first response had been to bring a lawsuit.

I’m not an attorney or an ADA expert. But a few clicks at www.ada.gov took me to a clickable list of ADA Title III regulations, called Section 36. It wasn’t hard to then pinpoint the section of the law that was violated and provide the “written notice” that would now be required.

Opponents of the changes worry that they’ll remove the incentive for a business to comply with the ADA. The Consortium for Citizens with Disabilities writes, “If, after 27 years, a business has continued to not comply with the requirements of this legislation, why should a person have to wait more time for enforcement of their civil rights?”

If a business has been flaunting the ADA for two decades, its owner should be locked up and the key thrown away. But, if a barrier has only existed for 27 days or 27 weeks, is a lawsuit the appropriate way to solve the problem? Shouldn’t other ways be tried first?

Did HR 620 “gut” the ADA, as Newsweek wrote? I don’t think so. Was HR 620 necessary? Again, I don’t think so.

I would have preferred that Congress left its hands off the ADA, which has served to protect those of us with disabilities for over a quarter century. But I also think requiring someone with an accessibility complaint to write the business before calling a lawyer isn’t totally a bad thing.

What do you think?

You’re invited to visit my personal blog at www.themswire.com.

***

Note: Multiple Sclerosis News Today is strictly a news and information website about the disease. It does not provide medical advice, diagnosis, or treatment. This content is not intended to be a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on this website. The opinions expressed in this column are not those of Multiple Sclerosis News Today, or its parent company, BioNews Services, and are intended to spark discussion about issues pertaining to multiple sclerosis.

Ed Tobias Editor
Ed Tobias is a retired broadcast journalist. Most of his 40+ year career was spent as a manager with the Associated Press in Washington, DC. Tobias was diagnosed with Multiple Sclerosis in 1980 but he continued to work, full-time, meeting interesting people and traveling to interesting places, until retiring at the end of 2012.
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Ed Tobias Editor
Ed Tobias is a retired broadcast journalist. Most of his 40+ year career was spent as a manager with the Associated Press in Washington, DC. Tobias was diagnosed with Multiple Sclerosis in 1980 but he continued to work, full-time, meeting interesting people and traveling to interesting places, until retiring at the end of 2012.
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29 comments

  1. Cyndi says:

    I totally agree that bringing the issue to the attention of the business, with an opportunity to remedy, should be the first course of action. Typically, I have found people more than eager to help over come an unintended obstacle. As in so many cases, common decency and civility is typically present in the vast majority of us given the opportunity. If you want to see obstacles…try Europe! You will have a new found appreciation for our ADA.

    • Ed Tobias says:

      Hi Cyndi,

      My little scooter and I have traveled in Europe and I know that many businesses, hotels, etc are much less accessible. Even trying to find a curb cut can be a challenge. I’m glad that my scooter is light enough to be lifted over a curb.

      Ed

        • Ed Tobias says:

          Hi Bonnie,

          I have two scooters. One is Pride Go-Go. It can be broken into 4 pieces for transportation and the heaviest is about 40 pounds. I used to take it apart and put it in the back of my SUV, but I now only use it around the neighborhood (to walk the dog, etc). I have a lighter one that’s only 35 pounds and folds up like a baby stroller. It’s called a Travel Scoot and is available only on-line at http://www.travelscoot.com. It’s been on trains, boats and planes with me and I’ve taken it to over a dozen countries. There are several others that you can check out with a Google search.

          I think you’ll find a scooter opens up new worlds for you. I’ve never regretted buying one.

          Eds

          • Cyndi says:

            Bonnie, have a Luggie Elite by Free Rider. Not exactly light weight (about 55lbs with battery) but very manageable by an able companion. Collapses down like a large skateboard and can then be picked up on one end creating an angle allowing you to roll it up to car/SUV trunk. I love it — so much better than a wheelchair. I have flown with it numerous times — ride it down the jet way and right up to door of the plane. Remove battery, then baggage crew stores it like a stroller and brings it back up to plane door when disembarking at destination or transfer location. Have also used it very successfully on a cruise ship. Bottom line — keep moving! Good luck!

  2. Jan-Michael says:

    We too often in the past, only acted after an horrific accident. We had been learning to be proactive and recognizing that elderly or challenged persons are often already compromised in knowing how or feeling able to speak out.

    We have an aging society and it is foolish not to put in place or keep in place ways to keep persons safe. If a hotel has a swimming pool with no stairs or proper access for elderly or challenged we know the person will still try to get into the pool. They will not return to their room to get out of their swim suit!

    An employee who sees a lack of conformity to law will not necessarily feel bold to raise the issue. That might expose their lack of agility or strength.

    This new law or bill is a mistake that will cost accidents and probably a life. We need to get more vigilant not less proactive for seniors and physically challenged.

    • Robert says:

      The bill prevents frivolous lawsuits, which are replete in our court system.

      Read the bill and the reason for writing it to see that part of the purpose is to end lawsuits that are currently being brought by those that are not even handicapped to bully a business owner to pay thousands of dollars to settle a suit because of a curb that is to high or handicapped parking spot that is too far from the business.

      I do not believe that the majority of the handicapped are so obtuse that they will enter a pool that does not conform to their safety needs or be involved in any other dangerous situation at a higher rate than the rest of society. Insulting to suggest that they do not have the common sense or faculties to avoid danger.

      ADA requires reasonable accommodations. I have yet to encounter business personnel that are not willing to discuss reasonable accommodations.

      “… cost accidents and probably a life…” Really? Where have I heard that before? Isn’t that a typical emotional response to most issues today? Your position on an issue will be much more compelling with the use of facts rather than emotion.

      It may be best to move on to one of the many real issues in society.

      • Jan-Michael says:

        I have, in my 305+ years insurance career, before my MS and AS disabilities, seen too many injuries or deaths for want of safe measures. In an aging society and greater opportunities for those of us who are challenged but try to participate, it is better to keep good measures in place. The bill has good features of course but some changes need to be made to ensure the new opportunities remain in place. To illustrate further, we know many, many times after a road accident or a railway accident a stop light or other corrective measure is installed but too late for the victim. I also, as a disabled person know I and my friends try too hard at times to keep up and participate. Sure we do it safely but it makes no sense to not make situations safe.

  3. Nancy Hartwick says:

    These changes roll us back to a time in history that will make a more inclusive society where people in wheelchair will not be able to make it into doctor’s offices, restaurants, etc. Heck, places were already not making themselves accessible and they had the tax write offs. The A.D.A. was mean to be a compromise where if the businesses makes themselves accessible then they can have a write off. This all goes away and puts the burden onto the victim into making their establishment accessible. –

  4. John Weiss says:

    There is nothing in this bill, that would improve my life. I think it is nothing more, then an attempt to water down the ADA, as a way of reducing lawsuits. I spent 23 years working, after being diagnosed with MS. I never ask for any accommodation, but slowly, and steadily things improved, both a work and in public space. Unless handicapped groups start asking for change, I don’t believe it would be in our best interest.

  5. Lisa Plattner says:

    The solution for frivolous lawsuits exists already in the court processes. If a plaintiff lacks standing, as someone noted before, then that lawsuit will be thrown out.

    The solution is not to shift the burden of proof onto the injured party, particularly not one which is significantly disadvantaged, usually. The disadvantages can be monetary (being disabled is expensive enough without adding the cost of a lawyer) and physically being able to handle the additional burdens of proof in this bill.

    To make it simpler, let’s look at the ADA building codes as you would a construction code. If a building isn’t up to code, for example electrical, plumbing or other structural matters, any inspector would legally demand that be addressed immediately. There’s nothing deemed “frivolous” about that, is there? It’s a matter of public safety, and yes, it can come down to inches or things that seem little but trust me are not when you’re in a chair. A ramp that’s a little too steep, for example. Bars that are not in an accessible place. Bathroom stalls that aren’t large enough. Doors that don’t allow for ingress or egress. Why all of a sudden is it only frivolous when disabled people complain?

    All of the above matters, even with the ADA codes, still cause problems for all of us disabled people. There are plenty of buildings for example that are grandfathered in somehow because of when they were built (I can’t observe my son’s ballet lessons, for example, because there is no elevator and a long staircase). Or historical areas like the French Quarter of New Orleans which are not required to be ADA compliant. So now we are to deal with even more nonsense? What impetus will businesses have to comply? I already know: much less.

    “Get back to the real issues of society?” Excuse me, but this is one: treating disabled people as if they have the same rights to be safe in a building as anyone else, to use a bathroom or to be able to come into any building they would ordinarily be admitted to as an invitee.

    This bill is just WRONG. I hope it dies in the senate.

  6. Ian Franks says:

    Hi Ed, I agree that talking, or writing, to the offending business should always be tried before resorting to legal action. It could bring a faster resolution of the problem. Such communication will not prevent a lawsuit if agreement cannot be reached. I also agree that the ADA did not have to be amended, as this communication was already possible – just not required. The amendment seems to me to be a waste of legislative time and money!

  7. Cyndi says:

    Yes, frivolous lawsuits can be dismissed…but not without time, money, attorneys and acrimony. Serial litigation and litigants rarely benefit anyone but the attorneys. Abuse of a process only leads to more resistance and misdirected animosity towards those most in need of the remediation.

    Significantly, the bill requires development of a model program to promote use of alternative dispute resolution mechanisms in Title III cases involving architectural barriers. Much like the Equal Employment Opportunity Commission is an administrative first step prospective plaintiffs must pass through before filing a lawsuit regarding employment discrimination under Title VII of the Civil Rights Act of 1964, a similar first step requirement could be utilized in ADA barrier litigation. In short, lets minimize litigation as the first step and maximize constructive (no pun intended) conversation.

    I do, however, support the idea of inclusion of ADA requirements into building code inspection requirements. Pass, fail, of fix-it. This will not solve the historical building problem, but neither am I a proponent of whole sale modifications to the original character and structure of a truly historic building. Hey, it only reminds me how lucky I am not to be trying to get around in a wheelchair or scooter 100 (let alone 500) years ago. As much as I hate to miss out on the ability to tour fully or visit locations of historical vintage, typically I support their preservation as is for generations to come.

  8. paula spears says:

    My gripe is there are not many family restrooms. I am in a wheelchair and my husbands can’t enter a woman’s restroom when I need to use one.

    • Vivian Tanis says:

      Actually he can by law. My father was blind, so needed help going to a public restroom. All you need to do warn people the situation before he enters. I found usually a man would step up and offer help, so I wouldn’t have to go in, but if not, I would go in to help him.

  9. Carol says:

    This is a bad bill!! Actually, its worse than just being bad. It discriminates against people with disabilities by requiring us to become the enforcement arm of the DOJ. We would be required to take actions to achieve our civil rights that are not required for any other protected class. The ADA will be 28 yrs old this summer, and there have been tax incentives in place for a long time. Small businesses and commercial property owners could have used the past 2.5 decades to repair/improve accessibility to make their business accessible for those who want to spend their dollars there. Now they cry foul and want a pass, but it would be up to the public to do the work to study the regulations and follow up with written notice . Many people with disabilities do not have either the cognitive or emotional or physical stamina or all of the above to take the actions required under this bill. And, if we can’t park and/or get into the property then how do we call out the interior failings? Or is that the next project to study regs and write new letters??? The requirement for arbitration/mediation if the initial steps fail is ludicrous. Those actions do not necessarily require that a business/commercial property achieve compliance with regulations. Mediation, if it is successful (?) means two parties have struck the best deal they could reach at that time. The DOJ has a problematic reputation for not following through to take action on failed mediation, and will simply close complaint files without any resolution. That means the scofflaw wins and people with disabilities lose. I have personally seen that happen. The states where the problem of vexatious litigants has come up has happened because they passed legislation to make it possible to sue for monetary damages on ADA complaints. Repeal those statutes and the bulk of the problem is resolved. There will still be a few vexatious litigants who sue to require that regulations are met but those numbers will drop considerably if the lure of easy money is removed. #msactivist

  10. Dave says:

    I think a lot of you are missing the point. Sure, its usually better to try to address the problem with the business first. That would be the preferred approach, but putting the burden on the disabled person can often be too much for someone with many varied symptoms. I have MS, and can barely find the time or energy to grocery shop or attend my necessary medical appointments. To expect me to write letters or meet with businesses in order to enforce ADA requirements is putting too much on the plate of someone who is already overwhelmed with basic life activities. Remember, disabilities like MS are not just physical, they are also mental, meaning we are easily overwhelmed with life activities that most take for granted. We need the ADA to proactively address equal access issues for us, because we often don’t have the time, the means or the energy to do it ourselves. People have to stop stereotyping disabilities as just physical limitations. Many involve brain/neurological damage, which greatly affects concentration, orientation, and mental energy. Our plates are already overloaded with just the basic life functions. Thanks.

  11. Cherie says:

    For other rules of safety, there are mandatory inspections. Health inspections for the food industry to make sure that you are not hurt from poor hygiene, etc. There are OSHA inspections to make sure that the workers are kept safe physically. There should be an ADA compliance inspection for public buildings for the safety of all of their visitors. I is part of keeping America as a ‘freedom’ country where all can enjoy what America has to offer. Whether it is food, shelter, entertainment, employment or leisure.

  12. Sandy McIntire says:

    It has been my experience that, when approached immediately about a lack of access, most restaurants, hotels, etc. do what they can to address the issue at the time. While several have said that, after 27 years, these same businesses should already be conversant which the requirements of the ADA, it should also be taken into account that many of these businesses have changed hands over the years, and many to immigrant looking for a better life. If you are fortunate enough to be staying or eating or visiting a new establishment, it will more than likely have been built in accordance with the ADA. Yes, I have had MS since 1994 and often ask for a handicapped accessible room when traveling. I know without the bars in the bath area, I would not be able to shower or take a bath. And I have found most places to be very amenable to providing whatever I need.

  13. Berni says:

    These things are bad. Even worse is when your record of MS is in both hospital systems records and yet you to the doctors in those systems and they deny you have that disease at all because they can’t see it. The disabled are severely undermined and harmed and often too proud to fight for their rights because they are hurtful. I was able to get out of a wheelchair with surgery on both joint and hip muscle. It was a very painful operation and I didn’t have a promise I could walk because the doctor didn’t take honestly the hospital records stating that. Still I had it and it told longer to heal, but I painfully walk, but not as painful as before but still there is much to be fixed in hospital systems and denial of conditions already documents is a horrible uphill battle. Often you do not want to go on.

  14. Margaret says:

    Thank you for expressing some reason and common sense into this debate. It is time for the disabled persons to stop seeing ourselves as helpless victims and take some responsibility for asking for help when it is needed instead of expecting the rest of society to anticipate and remedy every possible problem we might face. i can do this.

  15. Cassandra says:

    I think I don’t need another thing to tend to in life. MS is enough for me.

    Businesses should have their buildings ADA compliant from day 1. It shouldn’t become my responsibility to fix accommodation issues. If they’d not done their ADA work day 27 makes them just as liable as if they’d not done it for 2 years.

    That this is seen as “not that bad” is ridiculous. Just as it’s ridiculous to be less guilty due to time not complaint.

  16. R. says:

    Keep the lawyers out. Keep the lawyers out.Try to be fair to everyone. This country has become too divided. Have someone from a governmental or other agency inspect the premmises. If there is a problem give a large but reasonable fine. Do this at appropriate intervals if the problem is not corrected. Raise the fine each time if not corrected. Disabled persons could call or write the governmental agency and get a mandatory reply that a place was inspected regarding their complaint within a week.

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