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Defeating ADA Notification Laws.

Former U.S. President George H.W. Bush signed the Americans with Disabilities Act (ADA) into law on July 26, 1990, and it's considered the most comprehensive disability rights piece of legislation ever enacted by Congress.

The law prohibits discrimination against a person with a disability in employment, public services, public accommodations and telecommunications. Twenty-eight years after the ADA's passage, there's an entire generation of people with disabilities who have grown up under the law and know only the requirement for access.

Yet during the last 15 years or so, Congress has continued to sponsor legislation that would restrict the ability of a person with a disability to enforce his or her right to access public accommodations, such as restaurants, hotels and grocery stores, under the ADA.

Jumping Through Hoops

In January, Rep. Ted Poe (R-Texas) introduced the latest version, the ADA Education and Reform Act of 2017 (HR 620). Proponents claim this legislation is needed to protect small-business owners from ADA lawsuits.

This legislation would require people with disabilities to jump through numerous procedural hoops before they can file a lawsuit to protect their right to access businesses covered by the ADA. It would also remove any reason for businesses to proactively comply with the law.

Instead of ensuring that people with disabilities have access, as the ADA requires, businesses can wait until a customer confronts a barrier and has completed the detailed notification process. Even then, the only action the business may be required to make is "substantial progress" in removing the obstruction described in the notice. There would be no incentive for a business to learn about ADA compliance and take steps prior to notification.

Instead of putting the burden on people with disabilities, businesses should take advantage of the free resources already available to help them comply with the ADA.

Help For Businesses

The federal government funds the ADA National Network, which provides free technical assistance to businesses concerning their responsibilities under the ADA. There are 10 regional ADA centers that provide individual assistance, in-person training, webinars and publications.

There are also tax incentives to help businesses remove barriers. The tax deduction is available to all businesses, with a maximum deduction of $15,000 per year. The tax deduction can be claimed for expenses incurred in barrier removal and alterations.

The small-business tax credit is available to businesses that have total revenues of $1 million or less in the previous tax year or 30 or fewer full-time employees. This credit can cover 50% of the eligible access expenditures in a year, up to $10,250 (maximum credit of $5,000).

The tax credit can be used to offset the costs of undertaking barrier removal and alterations to improve accessibility; providing accessible formats such as braille, large print and audio tape; providing a sign language interpreter or a reader for customers or employees; and purchasing certain adaptive equipment.

In February, HR 620 passed the House by a vote of 225-192. Prior to passage, several amendments were offered. The accepted amendments include:

* Requiring a business to remove a barrier rather than just make "substantial progress," unless additional time is needed for barrier removal due to circumstances beyond the control of the business owner or operator

* Cutting the amount of time a business has to cure the ADA violation from 120 to 60 days

* Removing the requirement for a person with a disability to cite the specific section(s) of the ADA allegedly violated by the business in the notice

Paralyzed Veterans of America (PVA) opposes even the amended bill because without the threat of a lawsuit, too many businesses may simply choose to employ a "wait-and-see" approach rather than become ADA compliant.

Remain Vigilant

It's now up to the Senate to stop this legislation from becoming law.

In March, Sen. Tammy Duckworth (D-Ill.) and 42 of her colleagues sent a letter to Majority Leader Mitch McConnell (R-Ky.) expressing opposition to HR 620.

This level of formal opposition means any effort in the Senate to move ADA legislation that includes a notification requirement and cure period would be up against very difficult odds. Nonetheless, PVA members must remain vigilant to guard against the possibility of this or similar legislation moving this year.

Title III of the ADA is intended to balance the interests of small businesses along with the accessibility concerns of people with disabilities. It's a myth that the ADA's requirements are too hard on small businesses.

The ADA's approach wasn't to exempt small businesses from ADA requirements but rather to tailor the requirements of the ADA to take into account the needs and resources of small businesses--to require what is reasonable and not to impose obligations that are unrealistic or debilitating to businesses.

The ADA must remain strong and its enforcement mechanisms need to stay intact to ensure access for millions of people with disabilities to mainstream American society.

Lee Page is a PVA senior associate advocacy director.
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Title Annotation:on the hill
Author:Page, Lee
Publication:PN - Paraplegia News
Date:Jul 1, 2018
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