Disabled individuals should be alert to a bill (HR 620) that was passed by the US House of Representatives and is now waiting for a sponsor in the US Senate with the intent to amend the Americans with Disabilities Act (ADA) of 1990 to promote compliance through education (Section 2), to clarify the requirements for demand letters (Section 3), to provide for a notice and cure period before the commencement of a private civil action (Section 5), and for other purposes. Make no mistake, this bill will fundamentally alter the methods available for disabled individuals to recover damages from owners and operators of buildings and/or businesses that are not in compliance with ADA Standards for accessibility. Sections 2, 3, and 5 are discussed below. It is not clear what "other purposes" means.
SEC. 2. COMPLIANCE THROUGH EDUCATION. Based on existing funding, this bill requires the Disability Rights Section of the Department of Justice, in consultation with property owners and representatives of the disability rights community, to develop a program to educate State and local governments and property owners on effective and efficient strategies for promoting access to public accommodations for persons with a disability (as defined in section 3 of the Americans with Disabilities Act (42 U.S.C. 12102)). Such program may include training for professionals, such as Certified Access Specialists, to provide a guidance of remediation for potential violations of the Americans with Disabilities Act.
SEC. 3. NOTICE AND CURE (REMEDIATION) PERIOD. The bill prohibits civil actions based on the failure to remove an architectural barrier to access into an existing public accommodation unless: (1) the aggrieved person has provided to the owners or operators a written notice specific enough to identify the barrier*, and (2) within 60 days of receiving the notice from the aggrieved person, the owners or operators fail to provide the aggrieved person with a written description outlining improvements (remediation) that will be made to improve the barrier **, or, (3) within 60 days of the remediation notice, the owners or operators fail to remove the barrier or make substantial progress after providing such a remediation notice ***.
*The aggrieved person's notice must specify the circumstances under which public accommodation access was denied including the address of property, 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.
**Nothing in this section shall require a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization covered by this title does not intend to comply with its provisions.
*** Substantial progress was not defined.
SEC. 5. MEDIATION FOR ADA ACTIONS RELATED TO ARCHITECTURAL BARRIERS. The Judicial Conference of the United States shall 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.
HR 620 was sponsored by US Representative Ted Poe (TX), passed by the House of Representatives February 15, 2018 (225 Yeah, 192 Nay), and was received by the US Senate on February 26, 2018, and is awaiting a Senate sponsor.