Thread by @TiffanyBond

voted for #HR620

Want to see what's in it?

#Readthebill #mepolitics #TWPSB #bond2018

Seems innocuous. It's a short bill.

Promotes education? Sounds good
Clarify? Well, seems reasonable
Notice and cure? That seems like a prudent course

Why are people all upset?

Our first hint that something more nefarious is afoot comes pretty swiftly. Reform is a strong word for the title given the description. Adding a little education, clarification and a notice/cure seems fairly wimpy to earn a bold word like "reform".

The education section is brief. Not a fan of "existing funding". It's good they are including a bunch of folks for consultation, but...this sounds like this won't be a one person job, which means cuts other places. This bill gives no idea as to the scope of the program.

Is this a couple hundred thousand? Several million? How many people are participating? Let's just say we get feedback from at least 10 people in each state for each category to adapt to their specific regional needs and perhaps have one representative from each county in the US.

We are talking about managing input of thousands of people, and for something this important we want more than trivial information, right? Say we spend even 30 minutes per person. This is an *enormous* program for 12 lines using existing funding.

There is almost no guidance for this ginormous new thing. It permits the "training for professionals such as Certified Access Specialists to provide a guidance of remediation for potential violations" of the ADA.

Do we need these guys?

I like a short bill, but dang, MORE WORDS.

If you take unspecified "existing funds" from presumably needed programs, and redirect them to a vague, huge I guess you could call it a "goal"...that's a very efficient way to create massive governmental waste, fraud, nepotism, and money laundering for the extra ambitious.

We have no oversight, no structure, no reporting, no data request, no specified targets. Who wrote this? Someone suggest a career in collecting elephant dung.

...and I have a feeling this isn't even why we have protesters for this bill. Let's move on to notice and cure.

Step 1, what are we changing?

Here is the existing text.

(A) doesn't appear to be changing in a substantive way.
It adds the (B)...which is a problem, we'll get to that.

Subchapter is changed to title, section number has changed, but it may be the same language.

The key word here is "futile".

Before we get to that, let's sidebar.

Lots of law can have multiple references. It's sort of a bother for referencing/cross-referencing. Looking it all up is an excellent thing to outsource (and would certainly speed up my reading from my present meandering stroll).

I'm not verifying here because I've already decided this is bad enough I wouldn't vote for it. I'll cover the rest of the highlights, but it's time consuming and my guess if that these differences aren't the flaming torches.

It is a completely reasonable expectation for your federal delegation to outsource perfunctory tasks. It is also reasonable to have interns, staffers, other knowledge sources read and give feedback on bills. Heck, make a bill book club!

It is *not* reasonable at any point in time to vote on something you haven't read when that is your job. Right now, lots of reps are doing that. It's not ok.

Demand more.

Demand proficiency in bill-reading and a commitment to read every single thing they vote on.

Every. One.

If a rep is not provided enough time, they should say that. If they don't understand, they should say that too. We have time! The executive branch has emergency powers for things that don't have time for deliberative law.

Demand law that is thoughtful & well-considered.

Back to the bill.

Let's focus on "futile gestures".

Here is a good part of why people are flippping their lids on this bill. It shifts the burden to the disabled person providing notice.

But that sounds reasonable? Are the owners of "existing" public accomodations psychic? Why should they have to figure out what is wrong?

The ADA isn't new...it became law in 1990.

I'm 41 now, I wasn't even old enough to drive.

We were still excited about tearing walls down instead of building them in 1990.

@PearlJam was just forming.

Where were you in 1990?

More importantly, how big was your hair?

This is for *existing* public accommodations...we are talking about things that likely violated code to beging with if built since 1990, or people who have had more than a quarter century to figure out that there are disabled people in public spaces.

In yet another shock, disabled people are disabled. For many disabled people, life feels like a futile gesture.

Merely getting a donut in NYC can be a 5 hour debacle in a wheelchair.

This states that you can't start an action based on failure to remove an architectural barrier to access for an existing public accommodation until you've gone through a process...despite being on notice since 1990 such things must be handled NOT by the disabled person.

It would be understandable if this were new law, we had just implemented it, it was a nightmare and we needed to revisit it. Just chant this for the rest of this tweet.

1990

1990

1990

1990

1990

1990

1990

1990

1990

Seriously, why are we even doing this? 1990

1990

1990!

Let's talk about the process.

Step 1 - provide written notice to the owner or operator...let's just mull on this for a minute.

Putting something in writing alone can be a futile gesture for many disabled folks. What if you have cognitive challenges? What if you can't write?

There are probably at least a dozen totally inappropriate but functionally demonstrative @nbcsnl skits if you are daft enough you cannot picture this problem.

Have any of you tried to figure out who the owner or operator of an accomodation is before? Sometimes it's easy peasy. Sometimes it's a series of complex LLC to PO Box in Delaware affairs that requires way more than the Hardy Boys to resolve.

The next part of the sentence requires the written notice be "specific enough" to "identify" the barrier. I don't do this sort of litigtion, but that looks like a massive field day in legal costs arguing specificity.

Ask yourself how would you write about the doo-hickey thing that's all trippy and part metal with some wood kind of by the door?

Most non-disabled adults would struggle with this requirement. No really, they would. I have a remodeling habit and still have to play charades at home depot for parts on occasion.

You'd better send it certified mail, because they have 60 days to give a written description of what they will do to fix it or make "substantial progress" removing the barrier within 120 days.

WTF is substantial progress? Who decides that? When does it have to be done?

There doesn't appear to be any sort of finite date for completion, so I suppose this is where an owner sort of shrugs and says "well, we made substantial process, what's your problem"...forcing the litigation burden back on the disabled person(s).

For clarity, you can provide the description on day 60 and then 120 more days for "substantial progress"...the disabled person is out 180 days after they figured out how to write a letter that is specific enough.

This bill shred alone should show you how easy it is to take a bill written and passed by a majority in the House, and demonstrate it lacking specificity needed to understand properly.

Imagine a disabled person being held to similar or higher standards.

Oh look! More requirements, but on a different page. Simply splitting the requirement is a barrier. Pretend you have no attorney, you can't afford an attorney, and you just want to get into an apartment building that is the only one in town you can afford.

A lot of people wouldn't make it to this page and would just send their letter with the best specificity they can, wait 60 days and get a letter back saying "your request did not comply so we aren't doing sh*t".

...or they would ignore it entirely, & if /when a suit is brought they can point to this section and say the letter was non-compliant.

There is no affirmative requirement to respond if the letter is insufficient.

There is no requirement to say why the letter is insufficient.

The additional requirements:

1. Detail the circumstances you were actually denied access
2. Property address
3. Specific section of the ADA act being violated
4. Whether or not you requested assistance removing the barrier
5. Whether or not the barrier is permanent

It is written so 2-5 are sort of subparts of 1 with "including", but they are really different things.

So for 1...you have to detail "actual" denial. This isn't theoretical or maybe. If there is an alternative, even if cumbersome, inconvenient, or otherwise prohibitive, there is an argument to made that it's not actual denial.

If there is no reason you have to go there, or maybe it's actually private, then again, the burden is on the disabled person to affirmatively state this, before filing - if it's not there, the owner may be able to ignore it.

How many people would just send a letter stating that there is a problem with "X" that is impacting me and could you please fix it?

2. Address seems like a silly thing to get tripped up on, but forget a suite number, get the zip wrong, etc...it might get thrown out. Attorneys get things thrown out ALL THE TIME on technicalities.

3. You have to cite the ADA in the your letter. C'mon. How many of you know how to cite federal code? Now imagine you are disabled, which often impacts your ability to gain an education and your financial resources to hire someone who knows how to do it.

4. You have to say in your request for assistance whether or not you have made a request for assistance. 🤨 I feel a vicious circle coming on here. Right now it doesn't say you have to have made a verbal or other request, & theoretically you should only have to make one request.

This one makes me uncomfortable. It's one administrative "fix" from yet another step in process. If I had asked before, you can double dog bet I would say "THIS IS MY 3rd TIME WRITING!!!! Why would it even occur to you to say if you haven't previously asked?

The last word on page 5 is "and". In law, "and" means you have to do all of these things or an attorney has a really good shot in court at knocking you out by saying you didn't do it properly and sending you all the way back to the beginning of this board game.

5. Sometimes a barrier will be obviously permanent or temporary, sometimes it's not. There isn't language for "if known" - so it's on a disabled person, who may or may not have the capacity to determine this information, to declare this information. Not properly identified?

It's not clear whether or not the owner can simply ignore your request. The burden again falls on the disabled person to move this forward and they wouldn't even know if they are being ignored for at least 60 days.

Last thought before I move on to mediation - if you are indigent and disabled, good luck with this process. What if you don't have a mailing address?

Final section is mediation.

Let me start with how much I love mediation in a general sense. It can save costs and lead to much greater outcomes. We have mandatory mediation in many types of cases in Maine.

Mediation can be protective for the more vulnerable party. For example, we have foreclosure diversion mediation in Maine that gives people a chance to understand the financial issues related to their specific loan problems, slowing down the process for homeowner benefit.

However, mediation does not always protect the more vulnerable party. Again, we haven't been given any clarity as to how, when or with what budget this ADR program will be developed. Are we going to end up with someone like @dkenty putting this together or a wedding planner?

A stay of discovery is often not appropriate in mediation/ADR. Discovery is where you exchange documents related to the case. It certainly can get expensive to do so..it also provides necessary information to be able to fully mediate a case.

I don't think federal law should specify that discovery is stayed, and certainly not before the ADR process is developed. The benefit for this is almost entirely to the owner/operator. It gives them the ability to hide documents that would show bad behavior during mediation.

The disabled person would *want* to show their attempts to rectify the situation. The owner/operator would *not want* to be compelled to show that information, particularly if they are acting in bad faith.

They *might* have a public comment period, or not, and we don't know for how long, where, how, or if this information will be available.

Seriously, WHO WROTE THIS?

It's written like YA fiction, all light and fluffy but to make you feel like you are reading a deep book.

The last few sentences make it clear to me this bill really protects repeat offenders and puts the burden on the disabled. Mediation is less costly, but also less public. Very little is published from mediation, which is generally confidential.

It also looks like the process will require determining "relevant facts" & "steps taken before the commencement of litigation"...which loosely translates into these cases taking a really, really, REALLY long time, where the disabled person is denied access & has the most burden.

Final thoughts - this bill inflicts a *lot* of damage for 4 substantive pages. It's sloppy and light, with the lack of specificity to the detriment of those in society who can least afford it. If your legislator voted for this, call them and ask why.

It's a bad bill.

You have a representative who did not read, does not understand unintended consequences of legislation, or *wants* this. All of those are problems.

There is nothing urgent about this 1990 law needing repair so desperately as to cause such sloppy work.

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Remember that right now we have exactly the government we deserve. If that doesn't work for you, choose different

Get educated.

Get involved.

Ask questions.

Challenge your representatives.

Vote wisely.

Deserve the government we want.

/end
#mepolitics #ReadtheBill #bond2018