pre-suit notice

Happy new year everyone!

 

Since it is the first blog of 2017, I thought I would start with another first.  That is, to the best of my knowledge, we have never discussed pending legislation in the U.S. Congress before. There are a couple of interesting bills that are worth discussing and so here goes. The two bills we are going to discuss are Senate Bill 3521 and H.R. 3765. H.R. 3765 would amend Title III of the ADA to provide for a notice and cure period before the commencement of a private civil action in architectural barrier cases. It passed the House Judiciary Committee 15-6, and in the Senate, its companion bill is currently referred to the Judiciary Committee. S.B. 3521 would amend the Higher Education Act of 1965 to make it easier for students to get accommodations instead of having students give the colleges and universities what is often exhaustive documentation in order for a student to receive accommodations despite having received them prior to enrolling in college. S.B. 3521 does not, at this moment, have a companion bill in the House. As is usual, the blog entry is divided into categories. I and II discuss the text of H.R. 3765 and my thoughts on same, while III and IV discuss the text of S.B. 3521 and my thoughts on same. So, depending upon your interest, I could see you reading either I and II or III and IV or all of it.

I

H.R. 3765 (Pre-Suit Notification)

1. Makes it unlawful for any person to send or otherwise transmit a demand letter or other form of pre-suit notification alleging a violation of Section 302, 303 of the ADA (in the bill “29 U.S.C. §§12182, 12183)”, if such a letter or communication does not specify in detail: 1) the circumstances under which an individual was actually denied access to a public accommodation, including the address of the property and the specific sections of the ADA alleged to have been violated; 2) whether a request for assistance in removing architectural barriers to access was made; and 3) whether the barrier to access was a permanent or temporary barrier. Failure to comply with this provision subjects the person to a fine.
2. A civil action under §§12182, 12183 based on the failure to remove an architectural barrier “to access into” (actual language in the bill), an existing public accommodation cannot be commenced by a person alleging such failure unless: 1) 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 2) 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 that person a written description outlining the improvements that will be made to remove the barrier; or 3) if the owner or operator provides the written description above, 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.
3. Instructs the Judicial Conference of the United States to develop a model program to promote the use of ADR, including a stay of discovery during mediation, to resolve claims of architectural barriers to access places of public accommodations.

II

Thoughts on H.R. 3765

1. My colleague, Richard Hunt, latest blog entry suggests that pre-suit notification isn’t enough to solve the problem it is trying to address. His entry is certainly provocative and might even serve as a template if the Republicans want to go further.
2. Imposing a fine would likely chill attorneys from pursuing title III claims. As it is, the pre-suit notice is fairly extensive. Not sure why the pre-suit notice is insufficient without the fine. You certainly can expect lots of litigation over sufficiency of the notice regardless of whether the fine remains in the final bill.
3. The encouragement of mediation of such claims I can see going either way. On the one hand, it takes the court out of the equation, which is not necessarily a good thing for a person with a disability. On the other hand, people with disabilities are just frustrated that they can’t access places of public accommodations, and mediation is an excellent way to deal with situations involving frustrations.
4. Under the bill, a place of public accommodation has 60 days to respond to the notice and an additional 60 days to fix the problem, which is a total of 120 days (four months).
5. If this bill passes, then a place of public accommodation could conceivably delay the two-step process discussed here until receiving the pre-suit notice. A place of public accommodation also, especially with a fine involved, might seek to delay things further with respect to arguing over whether the pre-suit notice meets its obligations under this bill. That is, argue the 120 day clock does not start to run until proper pre-suit notification has occurred.
6. The language of the section requiring pre-suit notice uses the term, “architectural barrier to access into an existing public accommodation.” I must confess I don’t know what the term “to access into,” means. Is it talking about any architectural barrier in or out of the place of public accommodation? Is it only talking about architectural barriers with respect to getting into the place of public accommodation? If this language stays in, and I am representing a plaintiff, I would argue that the language as it currently stands is only talking about architectural barriers with respect to entering the facility and not within the facility itself. Of course, that cannot possibly be what the legislation intends, but the argument exists nevertheless. It will be interesting to see as the bill goes along whether this language changes, perhaps to something like, “preventing access into a place of public accommodation or preventing access within a place of public accommodation.”
7. The section making it unlawful for any person to send or otherwise transmit a demand letter or other form of pre-suit notification alleging a violation of §§302, 303 of the ADA absent meeting certain requirements references in parentheses 29 U.S.C. §§12182, 12183. They are going to have to clean this up because the correct cite is 42 U.S.C. §12182, 12183. 29 U.S.C. is where you would find the Rehabilitation Act not the ADA.

III

S.B.3521 (Making It Easier for Students to Get Accommodations in Higher Education)

1. Forces places of higher education to adopt policies making the following documentation submitted by a student automatically sufficient to establish that he or she is an individual with a disability.
2. Sufficient documentation includes:
   1. An IEP even if the IEP is not current or up-to-date on the date of the determination. The institution can ask for additional documentation from an individual with an IEP who was found ineligible for services or exited from eligibility during elementary school;
   2. A 504 plan;
   3. A plan or record of service for the individual from a private school, local educational agency, a state educational agency, or an institution of higher education provided in accordance with the ADA;
   4. A record or evaluation from a relevant licensed professional finding that the individual has a disability;
   5. A plan or record of disability from another institution of higher education;
   6. Documentation of a disability due to service in the uniformed services, as defined in §484(C)(a).
3. Requires institutions to adopt policy that are transparent and explicit regarding information about the process by which the institution determines eligibility for accommodations.
4. Requires that the institution disseminate such information to students, parents, and faculty in an accessible format, including during any student orientation, and making such information readily available on a public website of the institution.
5. Authorizes $10 million for the National Center for Information and Technical Support for Postsecondary Students with Disabilities.
6. Mandates that institutions submit for inclusion in the integrated postsecondary education data system or any other federal postsecondary institution data collection effort, key data relating to undergraduate students enrolled at the institution who are formally registered as students with disabilities with the institution’s office of disability services, including graduation rates for students with disabilities and the number and percentage of students with disabilities assessing or receiving accommodations at the institution providing the institution has more than 10 such students.
7. The Act does not affect the meaning of the terms “reasonable accommodations,” or “record of impairment,” under the ADA or the rights and remedies provided under the ADA.

IV

Thoughts on S.B. 3521

1. Currently, when students enter higher education, regardless of the record of impairment that they have and any accommodation that they may have received, the place of higher education forces the student to start all over. This is quite jarring for the student. Students all already very nervous about coming out with their disability when they enter postsecondary education and the requirement for new documentation, which is often exhaustive, only discourages them further from seeking the accommodations they need and are entitled to. This bill solves that problem.
2. The requirement that institutions of higher learning adopt policies that are transparent and explicit regarding information about the process by which the institution determines eligibility for accommodations forces institutions of higher learning to make sure that they have the essential eligibility requirements of their program in order as we discussed in this blog entry.
3. Requires data collection on students with disabilities.
4. I find it interesting that in the rule of construction, it says it is not meant to be construed to affect the meaning of, “record of impairment.” However, if the documentation automatically grants a student the right to have accommodations, doesn’t that also mean that you also have a record of impairment under the ADA? I suppose the distinction is theoretical because as a practical matter, the kinds of records being deemed sufficient by this legislation, would indicate that a person has a record of a disability under the ADA.
5. There is no companion bill in the House at the moment despite bipartisan sponsors in the Senate.
6. Very unclear to me, despite bipartisan support in the Senate, whether a President Trump would sign S.B. 3521. Since as of this writing there is not even a companion bill in the House, I can’t see how a President Obama would have a chance to sign this bill.