You Now May Be Vulnerable to ADA Prosecution
New Changes in California Law Offer You Protection
ADA accessibility law – while not sexy – is information that you absolutely have to know. Owning a business or commercial property can expose you to liability and violations of laws that you may not even be aware of. Your omissions -- however innocent and devoid of malice -- can be outright illegal and carry heavy penalties. However, there's a new revision to California ADA (The Americans With Disabilities Act) law that can help reduce the danger to you and your business. Not only is it easier to comply with ADA law now, but we will also address why it's the right thing to do.
Many business/property owners have only a conceptual understanding of how accessibility laws affect them. They think that ADA requirements are optional or only incur when one is remodeling. They have no clue that ALL buildings are currently required by law to be accessible to disabled people now ...as in, right now. This gap in understanding has afforded some unscrupulous lawyers quite a successful living as they send out disabled people to look for your infractions
The good news is that new revisions to California ADA law seek to turn back that unworthy phenomena. CA Senate bill 1608 allows for a voluntary CASp (certified accessibility specialist program) report. This report will either certify that a property or business is lawfully accessible, or it can detail a plan of action for the necessary alterations to the property in order to make it compliant with federal and state law. In either case, the business owner has the same new legal protection under SB 1608. The inclusion of this new report takes the emphasis off infractions that punish and seeks, rather, to support the owners in their effort to become compliant.
Here comes the good part. Stay with me: This CASp report (along with the follow-through on your CASp plan) nets you an enormous amount of legal protection. If a party tries to sue you, it provides for a 90-day stay or a temporary halting of all litigation preventing attorneys from engaging in motions, discovery, or other rather costly endeavors. It also allows the owner an early evaluation conference run by the courts wherein both parties will have the opportunity to explore whether the lawsuit can be settled. Also, the Court has set up a self-help website where you can go to file your own legal documents with the Court without an attorney. The CASp report further protects you from the dreaded "intent to discriminate" claim. This claim can steeply increase the level of damages and is becoming easier to prove when a business/property owner does nothing and has no plan to ameliorate the inaccessible portions of their property. Get a CASp inspection report and you clearly have no intent to discriminate and an "intent to discriminate" claim no longer applies.
"Many business/property owners have only a conceptual understanding of how accessibility laws affect them."
Why the law is necessary and just despite the aggravation it causes: The law was written to protect the civil rights of people with disabilities who would like to access any property or business and use it as it was meant to serve any other person. These "people with disabilities" come in many forms, from the elderly and infirm to the young, paraplegic, Iraq-war veteran. I recently heard someone tell a story of a friend who, because he was wheelchair bound, had to "hold it until he got home" each and every week that he met with his veteran support group at a local restaurant, because he was unable to use the restroom there. It is stories like this that make even architects turn their heads and realize that this is not just governmental red tape or yet another hoop that their clients have to leap through. It is a worthy endeavor.
If you are a commercial property or business owner, it is imperative that you understand what your current liability is and how the new California CASp report can protect you from "drive-by" lawsuits. It's also just the right thing to do.So what does it mean to "reflect the true value of innovation" in price, and how do these companies actually pick a number? Well, the medical industry has the advantage of having a society that monetarily (via third-party and government payers) supports individual patient and physician purchasing decisions. In other words, it is a leveraged system where we as a society have "made a market," for example, in cancer therapeutics. We've enabled prices and price increases that are much higher than we would or could justify individually (six-figure courses of therapy are not uncommon). We've enabled prices that support broad and continued innovation.
But have these high prices decreased access to novel therapies? The short answer is no. Over the last couple of decades companies have realized that high price doesn't necessarily mean lower access. High prices do lead to access challenges for some patients, but paradoxically these high prices actually improve overall access by allowing support of robust patient access and broader outreach programs (though it is easy to grab sensational headlines in the popular press pointing to high price as the problem). While it's disturbing to see stories of patients who are unable to access these therapies, addressing access with aggressive pricing would come at the expense of other critical brand, research and corporate functions. Most important, decreasing price is unlikely to increase overall access and might quell innovation.
Are prices for groundbreaking medical technologies exorbitant? While healthcare spending continues to rise at an unprecedented rate, the number of uninsured and underinsured continues to rise, and many argue that our heathcare system is among the least efficient in the world, the innovation in medical technology has been impressive. As a society, as a market, we have decided that the cost of innovation is worth the price. At least for now.
Resources for more detailed information:
U.S. Department of Justice - Americans with Disabilities Act
Certified Accessibility Specialist Institute to find a CASp specialist
Spencer Skeen, Attorney, Fisher & Phillips