Hello One and All! It’s your Uncle Dale. This morning I was on a Radio Show discussing my concerns with HR 620 (there is actually another Bill that could be just as bad, but it has no text currently-just a name HR 1493) and I realized that I should really take a minute and send out a warning to all of you.
As you may or may not know I have strong opinions about the weakness of the ADA when it comes to protecting the rights of people who are Deaf (I believe the term I used this morning was “barely functional”). This legislation would pretty much end the ADA’s thin layer of protection for the Deaf community.
The bill proposes to change Title III to say this:
(B) BARRIERS TO ACCESS TO EXISTING PUBLIC ACCOMMODATIONS.—A civil action under section 302 or 303 based on the failure to remove an architectural barrier to access into an existing public accommodation may not be commenced by a person aggrieved by such failure unless—
“(i) that person has provided to the owner or operator of the accommodation a written notice specific enough to allow such owner or operator to identify the barrier; and
“(ii)(I) during the period beginning on the date the notice is received and ending 60 days after that date, the owner or operator fails to provide to that person a written description outlining improvements that will be made to remove the barrier; or
“(II) if the owner or operator provides the written description under subclause (I), the owner or operator fails to remove the barrier or to make substantial progress in removing the barrier during the period beginning on the date the description is provided and ending 120 days after that date.
“(C) SPECIFICATION OF DETAILS OF ALLEGED VIOLATION.—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.”.
Understand the problems this causes. 1) Right now, often the only reason a company takes any interest in whether or not it is ADA compliant is because if it does not, it can be sued at any minute. It therefore behooves said company to be proactive in its compliance with the ADA. But if this Bill becomes law, no business need worry about investing one moment of thought in its complaince becuase unless and until its get a letter, it has no risk of a suit. If it recieves a letter the business has another four months to address any actual possible changes if it writes a letter back after 60 days. This will effectively end any personal responsibility by companies for their own accessibility; 2) The responsibility on enforcing compliance has, more or less, always been with the persons protected by the ADA (people with disabilities) but now they are turned into unpaid federal inspectors. Not only are they faced with a barrier but they must be able state chapter and verse the specific sections of the law that were violated and verify that they already requested the business to comply (which, if you think about it makes the letter redundant because they have already made the request); and, 3) It is not enough under this Bill for a person with a disability just to have noticed non-compliance or a barrier to access, the persons who are supposed to be protected by the law now must be able to specify in detail how they were actually denied access (this is insidious wording as it goes beyond just the idea that the business was not compliant, a person with a disability must defend that the lack of compliance actually denied them access). Think about this. What other law do you know where in the law says “businesses must X” and you see a business that has not X, but the law is not effective until the business has caused you injury personally by not X.
Think of a business that has exposed wiring but you cannot complain about it unless you get shocked and then warn the business. Or is structurally unsound but is not required to fix it unless it collapses on you. Or has rats running around in the kitchen but you can’t file a complaint unless it made you personally sick. You see a business that is not ADA compliant you can’t file a complaint unless you can show that you needed to patronize that business and couldn’t. Their defense is, “you could have just ordered it online we did not have to serve you.” Even if I see a store that sells something I will need but do not need today, I must go to the store and actually be denied access prior to beginning the process to enforce compliance. Or lets suppose that I want to go to a resort and I can see from the pictures is not compliant, I may not be able to begin the process of enforcing compliance until I go on my vacation because:
a) I have not actually been denied access until that moment; and,
b) I have only seen pictures and my not have a complete idea of the full extent of the violations.
It takes the ability to fix an issue prospectively and relegates it to retroactive. In one way it places other disability groups in the disfavored position that persons who are Deaf have faced since the ADA became a law. They have never had a good avenue to fix an issue before injury under the ADA. But now…
Looking specifically at the Deaf community. If a person who is Deaf has a doctors appointment and requests an interpreter and the doctor says no (we’ll just write back and forth… it’ll be fine I do it with all my hearing impaired patient’s) the Deaf person will currently lose if they sue, because the law does not give them any authority to choose their own auxiliary aid and does not afford a right to an interpreter, only effective communtation (I know you only communicate in ASL and writing has never been effective to you at any time… but who knows this time it just might work!) So the “Futile Gesture” doctorine is all but unavalible to persons who are Deaf (yes, the irony of something called the futile “gesture” doctorine being unavalible to people who are Deaf has not escaped me!) So, the patient who is Deaf must actually go the appointment and have communication fail. Once that is done the person who is Deaf must, of course, request an interpreter again. If the Doctor refuses… NOW the Deaf person can sue.
If the HR 620 becomes law, the Deaf patient can write a letter to tell the Doctor the exact section of the law the doctor violated and then wait four months to see if the Doctor will or will not provide the interpreter before they can sue. That is just as good as taking the razor thin protection the ADA somewhat affords currently and trashing it.
Please write your representative in Congress to say NO to both the ADA Education and Reform Act of 2017, H.R. 620, and the ADA Lawsuit Clarification Act of 2017, H.R. 1493! Look here to download a template letter from NAD (make the changes necessary if you are an interpreter so it matches your role and you can find your Representativehere.
Do it today!
HOWARD: Hi! Some of you may have noticed the trending hashtag: #protectADA. You may wonder why the ADA needs protection. That’s right, right now, there is a threat to the ADA. Some of you may remember my AHA video last September about a House bill, the ADA Education and Reform Act, with a different bill number because it was submitted during the previous Congress term – and it failed, luckily. However, the bill has returned with the same language with a new bill number in this new Congress term. Another Representative submitted a second bill on the same issue. The ADA Education and Reform Act’s new bill number is H.R. 620. The other bill uses similar language and is known as the ADA Lawsuit Clarification Act, H.R. 1493. Both bills are similar to each other and to last year’s failed bill. These bills ask that a deaf person or a person with a disability who experiences lack of access to a business, restaurant, hospital, and other places cannot file a complaint or lawsuit right away. They must first send a letter about the lack of access to the business. The person must send the letter and wait for accommodations and changes to be made. Then if there are no accommodations or changes made the second time, the person has the right to file a complaint or sue. This does not make sense because the ADA was passed in 1990, 27 years ago, and everyone should already know how to follow the ADA after so many years. The bill failed last year yet people are trying this again. We must stop them by letting them know these two bills are not okay. Whether you send via letter, email, fax, or social media – use the template we provide and send that to your Representative. The new template is modified from last year for you to use for the two new proposed bills. Download the template, add your name and edit the text with your information, and send! We need your help to ensure these bills will fail. Congress must know why the ADA is important to us and to protect our rights. #protectADA. Thank you.
Video fades to a soft white background with several different font types showing “NAD” very quickly. Copyright video ends with the National Association of the Deaf (NAD) logo centered. Blue text below the logo appears, “A production of the National Association of the Deaf (copyright) 2017 All Rights Reserved”.