U.S. Government Agencies
Having previously worked as a Civil Investigator for the Department Of Justice in the Southern District Of Alabama and Northern District Of Florida, Rick Hinrichs gained a broad depth of ADA knowledge and field experience on how best to meet the ADA compliance and investigative needs of Assistant U.S. Attorney’s. His ability to deliver timely, accurate and cost efficient site survey reports packaged in a manner that is easily reviewable by DOJ architects and disability rights attorneys has given him a distinct edge above the competition.
Colleges and Universities
Colleges and universities need to be responsive to individual requests for accessibility improvements – adding an automatic door opener to a particular building, moving furniture in a classroom for a student who uses a wheelchair, adjusting door pressure, including Braille or raised characters on signage at particular rooms.
When it comes to physical access, the “individual accommodation” response is usually not enough. Public colleges need a plan for “program access,” and private colleges need to remove barriers and ensure equal opportunity. You should strive to —
- improve access overall for students, faculty, staff, and visitors
- maintain accessible features
- inform users of accessible facilities and routes
- move services and classes to accessible locations with notice
- respond to individual requests in a timely way
Typically, when a student isn’t happy with a response to an individual request, the result is a complaint to the U.S. Department of Education’s Office for Civil Rights (OCR). The routine OCR response is to investigate, possibly make a campus visit, and resolve the complaint with a letter of resolution or an agreement.
Over the past several years the federal government and individual litigants have ramped up efforts to ensure equal access to facilities.
- The Department of Justice (DOJ) now conducts comprehensive compliance reviews of access to selected campuses and has entered several enforceable settlement agreements. Two agreements are with proprietary (trade) schools.
- Individuals are increasingly “taking it to court” and not just relying on the federal government for enforcement.
- The Department of Education made its first referral of an administrative complaint for litigation – in the University of Michigan case – to DOJ in 2008. DOJ joined in private litigation and secured a consent decree requiring changes to UM’s “Big House,” the largest university stadium in the country.
- Under the 2010 regulations, the Department of Justice can now conduct investigations and compliance reviews of public colleges and universities under title II without a referral or delegation from the Department of Education.
The DOJ has entered into numerous agreements with colleges and universities in the last few years, focusing primarily on physical access but also addressing such issues as food allergies and accessibility of electronic book readers.
In a December 2012 agreement, Lesley University was required to make reasonable modifications to ensure full and equal enjoyment of meal plan and food services for students with celiac disease and other food allergies. The university was also required to pay $50,000 to individuals affected by its earlier policies and practices. Read the agreement and DOJ’s technical assistance piece about allergies.
Previously, in a 2010 agreement, Arizona State University ensured accessibility of electronic book readers to individuals with vision disabilities. DOJ and the Department of Education issued a joint letter to colleges and universities in 2010 explaining that “requiring use of an emerging technology in a classroom environment when the technology is inaccessible to an entire population of individuals with disabilities–individuals with visual disabilities–is discrimination prohibited by the [ADA and section 504] unless those individuals are provided accommodations or modifications that permit them to receive all the educational benefits provided by the technology in an equally effective and equally integrated manner.” Letter from DOJ and Department of Education
On September 16, 2010, DOJ announced its first settlement agreement to result from its efforts to address physical access to universities. This agreement, with McNeese State University in Louisiana and the Board of Supervisors of the Louisiana System, resulted from a compliance review that began after the state attorney general’s office took the position – in private ADA litigation against the campus – that it was not required to have an accessible toilet room in its primary student union building.
Under the agreement, the university will
- Bring all newly constructed facilities into compliance with the ADA Standards
- Develop and implement a campus wide Physical Access Plan to bring all covered facilities into compliance with Title II of the ADA. The Physical Access Plan will include specific remedial actions and time tables to ensure that the university’s programs, services and activities afford program access by no later than Sept. 1, 2016;
- Display information on its website about disability access and create and/or update its campus-wide emergency evacuation, sheltering, and shelter-in-place plans for individuals with disabilities; and
- Designate an ADA coordinator.
In addition to the specific work required, the state board of supervisors has begun procedural changes to emphasize ADA accessibility rules and regulations for capital outlay projects for the University of Louisiana System.
DOJ has entered into eight similar agreements with private colleges and universities.
The agreements are available at the Americans with Disabilities Act web site.
It’s important to know that if your institution receives federal financial assistance, you’re subject to section 504 of the Rehabilitation Act and OCR’s complaint process. Almost all colleges – except for a handful of private colleges that refuse federal financial assistance – are covered. If you’re a public college, you’re also subject to title II of the ADA, DOJ’s regulation, and OCR’s complaint process.
Title III of the ADA applies to all private colleges (except those that qualify for the “religious entity” exemption) whether or not they receive federal funds. The DOJ reviews focus on private colleges. They have to comply with DOJ’s title III rule. DOJ can litigate and get civil penalties and damages for individuals. DOJ has agreements with several private colleges.
Over the years individuals have filed litigation under the ADA and section 504 and have gotten extensive relief by doing so. In one case, a community college agreed to spend at least $7.5 million for accessibility improvements to its campuses, pay damages and $1.6 million in attorneys’ fees, and check and maintain all access features on a prescribed schedule.
All institutions should have plans for evacuating your buildings in the event of an emergency. As a matter of civil rights, you have an obligation under the ADA to ensure equal opportunity for people with disabilities. That duty extends to any plans you may have for evacuating buildings, communicating with the university community in an emergency, sheltering students or the community, or providing transportation in an emergency. DOJ includes a requirement for addressing these issues with respect to people with disabilities in almost all of its higher education agreements.
We help city municipalities and organizations make their programs and services more easily accessed by citizens with disabilities. We show government leaders how to bring their programs and facilities into full compliance with the Americans with Disabilities Act in the most efficient and cost-effective way. We help them satisfy requirements made of them as a result of lawsuits and DOJ settlement agreements. More importantly, we show our clients how to avoid such lawsuits by being proactive in their compliance with the ADA.
We work with business owners to help them expand their customer base by showing them how to make their goods and services more readily accessible to persons with disabilities and lower the likelihood of an ADA lawsuit.
Essential steps business owners can take include the following:
- 1) Understand the ADA Requirements
The Department of Justice updated the ADA’s Accessibility Guidelines recently and they became enforceable in March of 2012. However, it cannot be overemphasized that the Guidelines do not require full compliance with every single rule for structures which existed prior to the rules. Instead, properties only must remove “architectural barriers” if the removal of these barriers is readily achievable, which requires a balancing test of the cost of removing the barrier, the wealth of the business, and related factors.
The first key preventive step for business owners is to review the Accessibility Guidelines. Businesses should determine when their facility was built or updated and understand the obvious ADA compliance issues. Business owners cannot assume that simply because a property was built long ago that there are not compliance challenges. Likewise, even relatively new properties may now be out of compliance with the latest ADA Guideline changes.
2) Have a comprehensive ADA compliance site survey performed.
While it sounds expensive, consulting with an ADA compliance expert and having the expert do a comprehensive site survey of the property can be very cost effective. Surveys can be completed for relatively small cost, especially considering the cost of a single ADA lawsuit. An expert can identify obvious ADA issues that are easily correctable so that the business is not blatantly in violation. An expert also can also possibly help justify not making more expensive changes because they are not “readily achievable.” By having an expert survey performed, a property owner is in a far stronger position to resist future lawsuits when the owner can show pro-active efforts of this type.
3) Correct Obvious Non-Compliance Issues
Clearly, property owners who have apparent violations are more prone and open to lawsuits. By “advertising” non-compliance, owners send the message that they are an easy target. Visible signs of good faith compliance can often work to the business owners advantage by deterring “serial filers” who will move on to easier defendants.
4) Develop a Plan For Compliance
It’s a good idea for every property owner to have a plan for regular maintenance and renovation. In light of the threat of ADA lawsuits, ADA compliance should be a part of every owner’s business plan. By identifying ADA issues before potential litigation, owners can make reasonable business judgments and build accommodation upgrades into a multi-year budget. This alone helps justify that changes are being made on a “readily achievable” basis. Owners should document the entire process and update the compliance plan after each change is made.
In summary, while there may be no way to entirely avoid a Title III lawsuit, clearly there are steps business owners can take to minimize the likelihood and better position themselves for a positive outcome. By doing so, the owners can minimize their long term costs and avoid the unpleasant position of having no viable defense to the ADA lawsuit.
Commercial Real Estate Brokers, Agents, Buyers & Sellers
Many real estate investors view our current economic downtime as the perfect opportunity to purchase distressed commercial properties and businesses at substantial discounts. Before any of these buyers complete a purchase transaction, they should add one more item to their due diligence checklist: whether the physical property and/or businesses operating procedures comply with the Americans with Disabilities Act (ADA), and similar state statues.
The current legal landscape has created a new reality for real estate investors. It is very possible for an investor, when purchasing a commercial property, to buy itself an ADA lawsuit. The property may contain architectural barriers that violate the ADA and may give rise to a private plaintiff lawsuit and/or a complaint to the DOJ that leads to a DOJ investigation. The policies and procedures of the business owner or tenant may also be in violation of the ADA. It is also possible the facility may be currently under investigation by the DOJ, or is currently the subject of an ADA lawsuit.
Moreover, substantial revisions to the Americans with Disabilities Act Accessibility Guidelines (ADAAG) were included in the DOJ’s revised 2010 regulations that implement the ADA. These new regulations go into effect on March 15, 2011 (with certain exceptions, and those go into effect on March 15, 2012). The new 2010 standards impose both technical requirements, (e.g. the specifications a property must meet to be fully accessible), and scoping requirements (e.g. the number of rooms or elements in a facility which must be fully accessible). It is possible that an existing facility that has been in compliance with the ADA in the past, will not be in compliance in the near future.
It is imperative that an investor protect itself before completing a purchase transaction, by performing their own due diligence in this area. For example, if potential ADA violations exist, the investor can either require that the seller correct the problems as a condition of closing, obtain an estimate for the barrier removal and demand from the seller a credit in escrow or to reduce the purchase price accordingly. Prior to completing a purchase, the investor should consider performing due diligence in three broad areas:
- Legal. Determine whether the property is being investigated by the DOJ or if there are existing ADA lawsuits against the owner or operator;
- Architectural. Retain an ADA consultant to survey the property and determine whether architectural barriers exist; and
- Operational. Determine whether the business has effective policies and procedures for interacting and serving disabled patrons.