February 23, 2018

House Passes Bill to Amend Title III of ADA to Require Notice and Opportunity to Cure Violations

2 min

Last week the House of Representatives passed the ADA Education and Reform Act (H.R. 620), a bill that would amend Title III of the Americans with Disabilities Act (ADA) to require individuals with disabilities to give public accommodations notice of any ADA violations and an opportunity to fix those violations before such individuals could file a lawsuit. The notice would need to specify (1) the alleged barriers at the public accommodation, with a citation to the specific ADA section allegedly violated; (2) whether those barriers are permanent or temporary; (3) how the individual with a disability was denied access; and (4) whether the individual made a request for assistance in removing the barrier.

The public accommodation would then have up to 60 days to respond to the notice with a description of how it proposed to remove the barrier, and an additional 120 days from the date it provided the description to make "substantial progress" in removing the barrier. Potential ADA plaintiffs could not file suit unless the public accommodation did not respond within 60 days of the notice, or unless the public accommodation failed to remove the barrier or did not make "substantial progress" toward removing the barrier within the 120-day period. What would qualify as "substantial progress" is an open question that is sure to be hotly contested.

Proponents of the bill say that it will stem the volume of "drive-by" lawsuits, including the growing number of website accessibility lawsuits, and give businesses an opportunity to fix any technical oversights. Opponents of the bill, including numerous disability rights organizations, argue that the bill would remove the incentive for businesses to proactively remove barriers and allow them to wait up to 180 days after receiving a notice to take any action. The bill is currently awaiting a vote in the Senate, where a number of prominent senators have already expressed their opposition.

Note: H.R. 620 would apply only to Title III of the ADA (governing the obligations of public accommodations) and not to Title I of the ADA (governing the obligations of employers).