David M. Perry at Pacific Standard:
On Thursday, February 15th, the Republican caucus and at least some Democrats in the House of Representatives are likely to vote to make the Americans With Disabilities Act (ADA) functionally optional when it comes to businesses. Propelled by years of lobbying by a group that represents shopping malls, the House will approve a new law that removes businesses' incentive to comply with the ADA. Disability activists unanimously argue that the bill will reverse nearly 30 years of progress, but the lobbying efforts of the International Council of Shopping Centers keep pushing it forward.
H.R. 620, the "ADA Education and Reform Act of 2017," restructures the enforcement mechanism for the ADA. The means of enforcement have always been unusual. Most regulations that affect commerce are enforced by local, state, and federal agencies. While there is a small division in the Department of Justice (DOJ) doing some oversight, the ADA generally depends on private citizens bringing complaints through damages-free lawsuits (though with legal fees attached) in order to command technical compliance in commercial spaces. Think about how this differs from most other regulatory situations. You aren't required to check whether the local restaurant complies with health codes, labor standards, or other safety features; the government does that for you. When it comes to disability, though, most enforcement starts with a personal lawsuit.
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H.R. 620 works on two fronts. First, it demands that the federal government offer businesses more education about the ADA, while not providing additional funding to implement that education. In fact, the DOJ already provides such education. As we've covered at Pacific Standard, the Department of Justice has been rolling back guidance documents that clarify how the ADA works, so the best guess about H.R. 620's education statute is that it's a way to cut enforcement activity by making the DOJ spend more money on education.
The second front—notification—is more pernicious. Right now, businesses that are found to be non-compliant can be held immediately accountable. That seems fair, given that the ADA has been law for 28 years. Under the new bill, a person who encounters an accessibility obstacle would need to give a written, technical notification to the business (which often will require a lawyer to do correctly), wait 60 days for that notification to be acknowledged, and then wait 120 more days for "substantial progress" to be made in resolving the accessibility issue. If, after 180 days, there hasn't been substantial progress (it's not clear quite how that standard would be regulated), the disabled person who first encountered the accessibility obstacle can then sue. They still won't be able to collect damages.
