On July 7 H.R. 3765, the ADA Education and Reform Act of 2015, passed out of the House Judiciary Committee. H.R. 3765 is one of several pending ADA reform bills targeting “drive-by” or serial litigants. They share a common approach, requiring that plaintiffs give notice before filing suit so the problem can be fixed. They also share a common reaction from the disabilities and business communities. Disability advocates vehement oppose the bills while business groups support them.
We’ve blogged about H.R. 3765 :
ADA Education and Reform Act of 2015
This bill requires the Disability Rights Section of the Department of Justice to develop a program to educate state and local governments and property owners on strategies for promoting access to public accommodations for persons with a disability. The program may include training for professionals to provide a guidance of remediation for potential violations of the Americans with Disabilities Act of 1990 (ADA).
The bill prohibits persons from, and subjects violators to a criminal fine for, sending demand letters or other pre-suit notifications alleging a violation of ADA public accommodation requirements if the notification does not specify the circumstances under which an individual was actually denied access. The notification must specify: (1) the address of property, (2) the specific ADA sections alleged to have been violated, (3) whether a request for assistance in removing an architectural barrier was made, and (4) whether the barrier was permanent or temporary.
The bill also prohibits commencement of civil action 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) the owners or operators fail to provide the person with a written description outlining improvements that will be made to improve the barrier or they fail to remove the barrier or make substantial progress after providing such a description.
The Judicial Conference of the United States must develop a model program to promote alternative dispute resolution mechanisms to resolve such claims. The model program should include an expedited method for determining relevant facts related to such barriers and steps to resolve accessibility issues before litigation..
Our prediction that the bill would go nowhere is proving wrong, but our criticism of the bill’s likely effectiveness hasn’t changed. Serial litigation is driven by cheap standing and the economics of defending a lawsuit in federal court, neither of which will be changed by this bill. There is something in the bill that all sides should agree on – a requirement for more ADA education. Unfortunately, this requirement comes without any funding, so it is unlikely to be effectively implemented. The best way to reduce litigation and help the disabled involves seriously funded education for business and coordination of ADA compliance requirements with the building inspection process at the local level. This would improve ADA compliance before a suit was filed or demand letter sent, and that would have the effect of moving resources from attorneys fees to accessibility. Private enforcement of the ADA through litigation is the most wasteful way to achieve the goals of the ADA, and as long as litigation is the main tool for enforcement the lion’s share of money will go to lawyers instead of improvements in accessibility.
