For those of you who don’t know, CASp stands for Certified Access Specialist. The short version of this history is that the California Senate passed a bill, SB 1608, which altered the nature of ADA compliance requirements for businesses.  This was an ambitious bill, pushed forward mainly by the California Chamber of Commerce.  SB 1608 has far reaching effects.  This article discusses some of the benefits of SB 1608 weighed against some of the added liabilities for business owners.

If you want a more detailed history of SB 1608, you can go to the California Chamber of Commerce ADA Reform page.  We’ve extracted some of the key points from their website, as they are quite broad of this lobbying effort.

I assume that you’re a business owner.  If you aren’t, then you’re probably either an attorney, a contractor or an architect (or an activist).  Either way, you’re interested in how SB 1608 impacts businesses, places of public accommodation as defined under Title 3 of the ADA.

Let’s start with the liabilities.  Understanding the benefits are less meaningful if you don’t know the liabilities.

I assume you’re already familiar with the responsibilities of ADA Compliance at your place of business. Basically, your business must work towards becoming 100% ADA Compliant.  There are a few things to consider in the course of this, like what kind of ADA inspection do you want to get, or when you will fix certain items.  Otherwise, the liabilities listed here are what CASp adds to your responsibility.  It’s important to note that ADA inspections are only the first step towards ADA Compliance.  An inspection, not even a CASp inpsection by itself, does ANYTHING to subtract from your duties to comply with the law.  What a complete ADA inspection does, is demonstrate good faith effort.  Inspections also are useful for contractors and architects who are not generally well versed in ADA compliance.

Liabilities of CASp Inspections

CASp and SB 1608 was passed only to protect businesses interested in ADA Compliance.  There are two main considerations.

1. A CASp inspection requires that a timeline be implemented as to when items are to be made in compliance.  There are no standard guidelines for how to assess this — as such a timeline is largely dependent on the financial resources of the entity in question.  This means that any CASp inspector needs to work with the entity in determining an accurate guide as to when items should be fixed.

If the timeline is too strict, the entity may fall behind fixing these items and in the case of an ADA lawsuit, the entity will look faulty.

If the timeline is too lax, in the case of an ADA lawsuit, the entity could have fixed certain times and remained needlessly liable for that time.

Remember the point of CASp is to become ADA compliant.  If you get a CASp Report and then do nothing, you will become more liable over time.  If you display the CASp certification, considering no one else has one, you’ll probably deter ADA lawsuits for a time.  After a time, having the CASp certification with obvious ADA violations will get you sued.  Then you’ll look extremely worse in court for not complying at all.

2.  CASp can be quite expensive, because of the added liabilities to the CASp Inspector in determining the timeline.  The average cost of CASp is $2400.

3. This is not a liability, but it is worth mentioning:  CASp goes into effect only if the site is sued AFTER getting a CASp inspection.  No protection is offered retroactively.

4. A CASp licensed individual is required to be included in building departments.  The original time line stated that such an individual was to be included as of July in 2010, but this date has been moved into 2014.  CASp is meant to bridge State Building Code and ADA guidelines, as most contractors and architects are not well versed in Federal Civil Code.  While having a CASp individual does not offer a significant benefit, as local ordnances only have jurisdiction over State law, not Federal Civil Law.  A CASp individual in the local building department is a resource to local businesses but as a state employee such an individual is limited to advising about the State regulations.  If you want the benefits of CASp, you’d still have to hire them outside of their normal building department job and pay them the required amount.

Advantages of CASp

The California Chamber of Commerce has listed 10 benefits of SB 1608 for businesses.  We have divided these benefits into two groups, for those who get CASp and everyone else.  This is the first section.

1.  Part of the fear of ADA compliance is the cost.  CASp helps a business focus on what they can pay for.  Remember, the timeline is there to help businesses comply within a reasonable time frame.  If a CASp inspector understands approximately how much a business can afford for ADA compliance per month, the cost of compliance can be spread out over time to achieve 100% ADA Compliance.

2.  CASp certification is offered for all sites, even if they are not yet compliant.  This certification can be posted on a store window to deter litigants looking for an easy target.

3. CASp tries to help businesses avoid expensive lawsuits.  To this end, CASp allows businesses to request a 90 day stay.  This means that opposing attorney can’t rack up expensive attorney fees during discovery, while you decide what to do (accept their settlement or not).

Benefits of SB 1608

The effects of SB 1608 offer several included benefits for business owners whether they get CASp inspected or not.

1. Litigating attorneys who demand money must also include a statement advising the business what their rights are.  So if you haven’t got CASp, you won’t be able to request the 90 day stay.

2.  SB 1608 limits the amount of the damages to $4,000 per visit.  Furthermore these damages must be related to the plaintiff and explained how they injure the plaintiff.  For example, having detectable warnings helps protect those who are legally blind.  Someone in a wheelchair probably won’t be able to sue for a lack of them.  Grab bars would effect such a plaintiff, however, so they will be able to make a complaint about that.

3. A clause is included in SB 1608 to help lessen the attorney’s fees in a settlement.

4. CASp individuals are going to be more common, at least loosely tied to local building deparments (see item #4 under liabilities of CASp).

5. Architects and contractors will be required to learn about the ADA as part of their continuing education so they can be at least aware of what they don’t know.

6. A State Commission is formed to help interface the Disabled Rights and interests of Building Departments.

7. Cal Chambers also lists “new deadlines” for State building code compliance with ADA requirements.  The Division State Architect was already doing this with the Department of Justice.  It’s important though, to have a codified process as the building code is updated every three years.  The ADA is also updated but less frequently.

Consequences of CASp and SB 1608

CalChambers does recognize the need for some coordination between advocacy groups and the interests of the status quo, but as a business organization, they tend to lean towards the interests of big business.  Much of what SB 1608 does is to help entities that have cash take advantage of SB 1608′s lowering of the cost of lawsuits.  Smaller businesses that do not have funds must rely on pressuring larger property management firms to help with the cost of ADA compliance.

It’s also important to note that CASp cannot stop lawsuits, they can only help make the process more difficult for litigants. One of the long term consequences of CASp is that as businesses get CASp certification, those who do not have it, or cannot afford it will face a steeper battle as they become easier targets for litigation.

Add onto this that the Unruh Civil Rights Act defines violations of the ADA as acts of discrimination — this verbage has not changed.  Intention is unimportant to this ruling, as proven in so many court cases.  Businesses that do not comply with the ADA regardless of getting CASp or not still carry the steep fines associated with acts of discrimination — $4,000.

This heavy responsibility is to be sure, mostly on businesses right now.  CalChambers and other business groups are bound to spread this liability to other responsible parties, such as architects, contractors and Real Estate Agents.  So it’s important that all responsible parties with an interest in a place of public accommodation help make their site ADA compliant,

ADA Reform however, is not finished.  Much of SB 1608 mentions benefits to business — offering little or no compensation for the rights of the disabled.  You can be sure there will be an increased effort of disabled advocates to have their say as well.

All this should be considered in getting an CASp inspection.  For a more of a fiscal view of how to balance these responsibilities with ADA compliance take a look here:

How to put a price tag on your liability.

If you’ve decided that getting an ADA compliance report is for you, congratulations.  Our ADA Consulting Services.

If you have questions or concerns call us at 866 982 3212 extension 1!  Or email us at help@ytaccess.com.  Our advice is always free.

ADA Compliance Means Policy Needs to be Compliant too!

Take a look at Rule 6. It includes the text “SELF-PROPELLED VEHICLES PROHIBITED.” Does that include powered wheelchairs? It’s important to be careful with your signs, printed materials, and policies. Discriminiatory verbage hurts your loyal customers — even if they’re too polite or shy to say anything — and can make you look very bad should you ever get sued.

Anyone who does an ADA inspection, especially for Facilities under Title 2 (government) for a full ADA transition plan needs to have their policy looked at! Remember, the ADA also has Title 1 which covers employees. (Any good HR firm, or consultant can advise you on this.) But in terms of access to goods and services you need an experienced ADA consultant to look through your policies. If your consultant thinks that walking through a court house or police station with a tape measure is all it takes, then you need a better ADA consultant, one that won’t get you into a lawsuit.

Have any questions? Call us at 866 982 3212 x2 or email us at help@ytaccess.com

If you want to look directly at what our services cost, or for further information on the topic, you can go to these official ADA sites.

The following quote is from an article on ADA compliance. The quote tells a familiar story, where one owner of a hotel was sued more than once for different ADA compliance issues. The first time he was threatened with a lawsuit, he settled and fixed that one issue. Later, he was sued again, and fought back. At the time of the article, the case was not settled. If anything, this story highlights why a business should get a complete Accessibility Survey.

Many small-business owners, however, worry that paying large settlements to Pinnock would force them to close.

“It sounds like we’re crying,” said Carlos Vasquez, whose three San Ysidro motels near the border were sued. “We’re dealing with the same economy as everyone but add on the fact that people aren’t traveling to Mexico. Add the whole passport-requirements issue.”

Attorney Theodore Pinnock has filed nearly 1,500 lawsuits in California [between 1993 and 2008].

Vasquez’s Frontier Motel on Via de San Ysidro was sued by Pinnock four years ago for, among other things, a sign violation that Vasquez said he fixed. It cost him $10,000, including attorney’s fees. He said he won’t settle this time.

You can read more (Continue…).

The point illustrated above is that, of course, anyone worth their salt as an ADA compliance consultant will tell you that a true compliance survey will be complete, not just of one or two issues. Partial inspections are really worthless! At first glance, partial inspections seem like a savvy business move. Why ignore liability that doesn’t involve you — after all, what you don’t know doesn’t exist, right? Or if you’re not responsible then you can’t possibly care.

Yet we know this is not the case. Anyone who has ever argued with a cop over getting a ticket knows that ignorance is not a defensible position when you break the law. While providing alternate accommodations in lieu of what you can’t yet fix seems like a good catch-all for expensive compliance issues, in the long term, a lessee who continues to lease an out-of-compliance building tells the world that they don’t care.  Such lessees are choosing to locate goods and services in inaccessible locations. This is just as bad as a lessor who claims everything is the lessee’s fault. If a building is seriously non-compliant, the best thing to do is leave that location as soon as possible!

Which brings us to a stronger point. YTA will never do things half way. Our reports are the most complete and thorough of any ADA compliance reports we have ever seen. We also take your (and our) liability seriously. This is while some of our competitors may offer free (but partial) inspections, we aren’t going to do the same.

Free inspections sound like a good idea — they can let you know what some of your liability is — a taste of what’s in violation. Many business models are built around offering free (but partial) services. For example, many tax programs offer the Federal Income Tax portion as free — to use their program to do the state tax though, requires you buy the program. This sounds good, but before you can get meaningful results, you still do need to pay. It’s not like you are paying for only the state tax portion of the program — when you pay, you actually pay for the entire program. So it’s a good way for the free (but partial) model to compete for market share, because it seems like they are giving something of value away. We do commend our colleagues for taking the time and resources to help businesses with something. Our colleagues stand for the same thing we stand for — to bring about ADA compliance — to protect disabled individuals AND the businesses who do something about not being compliant.

But that’s where the differences end.

How good do you think the free version of tax software is? Getting a partial inspection may get their foot in your door, so to speak, for becoming ADA compliant, but what happens when your customer goes through your door? If YTA were to compete with this model, we would have to offer free inspections all the way up to some further arbitrary point. For example, we might do everything for a business (b) type occupancy except for the restrooms. For hotels (r) type occupancy, we might choose to check only the rooms with roll-in showers.

Such an approach would defeat the purpose of ADA compliance. Offering “free” and partial inspections devalues both what the ADA consultant does, and the importance of proper access compliance. If anything, “free” only entices an uneducated public by failing to communicate the real value that comes with applying access codes to an actual site. “Free” can sound like one gets something for nothing, or as in some cases, nothing for nothing. The real purpose of getting an ADA compliance survey is to better serve the public and eliminate liability. Partial inspections can do neither.

Any ADA compliance work needs to look at the complete general path of travel. Making suggestions or citing violations for only a part of the route can create nonsensical “solutions”. Compliant ramps are good and well, but if they lead to non-compliant rooms, then the path of travel is misleading. People can get trapped or confused. Any further access work in the future then would have to undo these “solutions” in order to become truly accessible.

YTA follows the model that general information should be free. We recognize that businesses need time to do what they do. This is why we offer free seminars whenever possible to interested organizations. We do not act as the gatekeepers of knowledge, keeping what we do for a business a secret. We would rather share information. Anyone can go to the ADA.gov or buy a set of the California Building Code (and given an indefinite amount of time become an expert). We have years of experience, but we are willing to offer this openly to save everyone time. We present the information. As our potential customer, you can qualify yourself. Our seminars will address 80% of the most common issues sued for. With this information, responsible individuals can go back to their facility and recognize if they need a customized experience.

This is also why we take the time and expend the effort to answer general questions but don’t offer free consulting services. Every site is different, with different liabilities. In to thoroughly eliminate liability and provide for access we need to fully inspect your property and make thoughtful recommendations. This costs us time and effort. We believe in a straight-forward no-nonsense approach. You recognize if we can help you or not.

We will not cookie-cut a report for you. Come to our speaking events. Through public education, we will show you what we do. If you have further questions, we will continue to service your needs.

Here is a great example of how the government regulations do not take into account the needs of those whom they are trying to protect.

As you may or may not know, Title III of the ADA effects places of public accommodation, basically businesses. For your average small business owner, this is too much information — no one running a small businesses has time to shift through this level of legal-ese. And yet they are effected because these regulations are for protecting the rights of your customers.

Basically the revised Title III states defines service animals as dogs. This ignores the fact that service animals do different things for people with disabilities — not just for the blind. For instance, with epileptics, service animals help their owners in time of seizure. They are trained for specific tasks. Here is a great link about this topic: Service Animals RE: Epilepsy. There has also been plenty of debate as to whether dogs are the best animal to service the blind.

In any case, this revision, for business owners, makes it easier for a business owner to spot whether someone has a ‘service animal’ or not. But it will cause consternation among disabled individuals with service animals who are not dogs — when they are denied entrance and probably bring about a few lawsuits between disabled individuals against businesses who deny them entrance. This is not a good thing. Eventually, this law will be revised again to have a broader scope than defining a service animal as a dog — simply because this definition is not effective. This will probably mean that businesses and organizations who learn about the original revision and change their policy will have to learn about the newer revision and CHANGE THEIR POLICY AGAIN.

It’s very possible that individuals in the government put this definition in place simply to 1) avoid further unfocused discussions as to what a service animal was 2) simply to have a revision in place which can later be re-tooled to be “on target”. In large organizations it’s often better to have an approximate policy in place to close the discussion than to go through the extra process of debate and risk losing having any policy at all. Eventually that kind of policy will be “cleaned up” through a more focused study with the framework of the approximate policy in place. Do any of you know what this kind of process is called? It’s something that I have observed happening but no one seems to be able to have a term for it.

In any case, since the revised Title III is long, for your ease, quoted below is the relevant text.

Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the handler´s disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal´s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.

You can glance further down and see that miniature horses were considered as service animals, there is a section about them. Nonetheless, comparing this text with the definition above, you can see how businesses can be confused by this contradiction or not understand in depth enough what a service animal is — prompting all kinds of hostile feelings, disagreements and lawsuits.

I have quoted the applicable text below, for your reading pleasure:

(c) Service animals.
(1) General. Generally, a public accommodation shall modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability.
(c)(2) Exceptions. A public accommodation may ask an individual with a disability to remove a service animal from the premises if:
(i) The animal is out of control and the animal´s handler does not take effective action to control it; or
(ii) The animal is not housebroken.
(3) If an animal is properly excluded. If a public accommodation properly excludes a service animal under § 36.302(c)(2), it shall give the individual with a disability the opportunity to obtain goods, services, and accommodations without having the service animal on the premises.
(4) Animal under handler´s control. A service animal shall be under the control of its handler. A service animal shall have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal´s safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler´s control (e.g., voice control, signals, or other effective means).
(5) Care or supervision. A public accommodation is not responsible for the care or supervision of a service animal.
(6) Inquiries. A public accommodation shall not ask about the nature or extent of a person´s disability, but may make two inquiries to determine whether an animal qualifies as a service animal. A public accommodation may ask if the animal is required because of a disability and what work or task the animal has been trained to perform. A public accommodation shall not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal. Generally, a public accommodation may not make these inquiries about a service animal when it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability (e.g., the dog is observed guiding an individual who is blind or has low vision, pulling a person´s wheelchair, or providing assistance with stability or balance to an individual with an observable mobility disability).
(7) Access to areas of a public accommodation. Individuals with disabilities shall be permitted to be accompanied by their service animals in all areas of a place of public accommodation where members of the public, program participants, clients, customers, patrons, or invitees, as relevant, are allowed to go.
(8) Surcharges. A public accommodation shall not ask or require an individual with a disability to pay a surcharge, even if people accompanied by pets are required to pay fees, or to comply with other requirements generally not applicable to people without pets. If a public accommodation normally charges individuals for the damage they cause, an individual with a disability may be charged for damage caused by his or her service animal.
(9) Miniature horses.
(i) A public accommodation shall make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability.
(ii) Assessment factors. In determining whether reasonable modifications in policies, practices, or procedures can be made to allow a miniature horse into a specific facility, a public accommodation shall consider –
(A) The type, size, and weight of the miniature horse and whether the facility can accommodate these features;
(B) Whether the handler has sufficient control of the miniature horse;
(C) Whether the miniature horse is housebroken; and
(D) Whether the miniature horse´s presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.
(iii) Other requirements. Sections 36.302(c)(3) through (c)(8), which apply to service animals, shall also apply to miniature horses.

Before I end this post, there are two general questions businesses always ask us. 1). How do I know whether someone has a service animal has a service animal and 2) Can I charge them more for bringing this animal in?

The answer to both is NO: a business CANNOT ASK what kind of disability an individual has. You can ask what the animal does (emotional comfort does NOT a service animal MAKE!)

And NO, businesses cannot charge the individual with a disability MORE (even if you can charge pets more) because service animals are not pets. If the service animal causes damage, then the owner is responsible for paying for that damage.

You can look at the Title III’s full regulations here: Title III Revised Regulations. Being educated is the first step to any kind of compliance. Unfortunately, there are TONS of regulations. Thats why we are around, to help you become educated about what you need to know.

H&R Block was sued by the Department of Justice for not providing assisted listening devices or interpreters for their tax preparation classes.

As we have been advising businesses, it has been coming. For your information (at least in California) Business Occupancy type B counts as an Assembly Area (type A) if there are 50 or greater people for the occupancy of that room.

This bodes strongly for hotels with conference rooms and restaurants which have performance areas, gyms, theaters and stadiums (among other types). Under the ADA (and the CBC) there must be provisions for providing either assisted listening devices or an interpreter. You can read the text below from the Department of Justice Briefing.

WASHINGTON – The Justice Department today announced a comprehensive settlement agreement under the Americans with Disabilities Act (ADA) with HRB Tax Group Inc., H&R Block Tax Services LLC and HRB Advance LLC (H&R Block) to ensure effective communication with individuals who are deaf or hard of hearing in the provision of income tax preparation services and courses at more than 11,000 owned and franchised offices nationwide.

The settlement agreement, which resolves an ADA complaint filed by an individual who is deaf, requires, among other things, that H&R Block furnish appropriate auxiliary aids and services, including sign language interpreter services, when necessary to afford a person who is deaf or hard of hearing equal access to the goods, services and accommodations made available to others.

( Read more… )

This can strongly affects your site or (if you are hosting an event) your liability in choosing a site to rent. Don’t let yourself get caught unprepared. Braille Brochures and Braille handouts are readily achievable with today’s advanced printing technology. Restaurants also should provide Braille brochures.

For more information on how this will affect your site, feel free to give us a call or send us an email. Inquiries are welcome.

Is your Business ADA Compliant? Learn about the legal liability your business has if it is not ADA Compliant. Don’t get slapped with a lawsuit over something you could have prevented!

Hosted at Four Points Sheraton (5990 Green Valley Circle in Culver City, CA) on Oct 6 @ 730am.

Click on the link below to pre-register for the event!

Culver City ADA Seminar

If you own a business, chances are it’s not 100% compliant. The only businesses which are guaranteed to be compliant are home delivery. Even then, if you accept visitors from the public in your lobby, family members of employees or event delivery personnel (who have to sign in at a counter) then you are technically open to the public.

If you think you are accessible, here’s a few items for your check list.

1. Floor Mats which are secure and do not pose a tripping hazard (glued or taped down)
2. Van Accessible Parking with an access aisle that is at least 96 inches wide.
3. A 6×6 inch ISA decal on or about your front door
4. Signage on the wall next to your restroom centered at 60 inches with raised letter, contrasting letters and grade 2 braille.
5. No door knobs anywhere. No twist hardware for the lock, for the latch or for faucets.
6. All restroom amenities are less than 40 inches from the finished floor. This means the point of operation!

If you’ve passed all 6 of these, then congrads, you’ve passed 6 of the 1300 unique checks that are part of doing an ADA Audit.