September 6, 1989

TO: Senator Dole

FROM: Mo West

SUBJECT: Hatch Amendments to ADA

Senator Hatch is prepared to offer three amendments to the ADA. The concerns that his amendments will address are those that he has held since ADA was introduced and which he reserved the right at Committee mark up to bring to the Floor.

The three problem areas he holds are:

1. The Administration supported compromise on remedies using the pattern and practice authority given to the Attorney General in the Fair Housing Act Amendments of 1988. The ADA will give the Attorney General discretionary authority to seek civil penalties in cases involving egregious and willful violations of discrimination. Penalties of up to $50,000 for a first violation and up to $100,000 for subsequent violations may be awarded.

Senator Hatch feels this remedy scheme is too burdensome and will offer an amendment to lessen the amount of civil penalty remedies -- he has not yet confirmed a dollar amount.

I would recommend you backing the current language which represents the Administration compromise -- as the civil penalty remedies in the ADA and Fair Housing will provide a strong fiscal incentive for covered entities to avoid discriminatory practices.

2. The scope of coverage of "public accommodations" which includes much of the private sector concerns Senator Hatch and others because not only are these entities subject to accessibility requirements concerning new facilities but a wide variety of obligations with respect to existing facilities and general policies and incurred costs in providing access and nondiscriminatory practices.

Title III of ADA includes a small business exemption of 15 for public accommodations in providing nondiscrimination treatment (i.e. putting in a ramp, or providing auxiliary aids & services) and the undertaking of an accommodation which can be costly and represent a fundamental alteration in the covered entity's program. Therefore, Senator Hatch will offer an amendment to institute a small business exemption of 25 employers or less with respect to responsibilities under public accommodations.

During the course of negotiations on the ADA a three tiered approach was examined as a way to deal with retreat from costly responsibilities to small entities in providing nondiscrimination treatment -- a small business exemption of 25 was also examined. However, the issue will remain the same -- that being -- people with disabilities will be excluded from participation in and access to activities of daily living that everyone else take for granted if public accommodations and more important access are not available to them. If the independent living movement is to be a reality people with disabilities need access to all aspects of society (i.e. grocery stores, dry cleaners, movie theaters and the like).

I would recommend keeping the small business exemption of 15 currently in the ADA and consistent with other civil rights statutes, thus showing your support for the independent living movement and the Administration's compromise in this area in assuring a fully accessible society.

The technical assistance amendment you will offer will strengthen the bill and justify the small business exemption of 15 under the public accommodation section. Its goal of providing education to all covered entities of their responsibilities and how to meet such obligations in implementing nondiscrimination treatment and undertaking accommodations will prevent needless litigation and civil penalties.

There will be costs incurred to small businesses in meeting their nondiscriminatory treatment requirements under this Act. While this should be no reason not to afford disabled citizens their rights -- there should be incentives and assistance for those newly covered entities to facilitate their responsibilities.

A tax exemption for those small entities to include expenditures for accommodations and auxiliary aids and services would take away any punitive sanction the business community may encounter. Expanding Section 190 of the Tax Code to include expenditures for accommodations applicable on an establishment rather than an entire enterprise basis would be a palatable solution appeasing the business community while ensuring a fully accessible society and strong independent living movement.

3. Senator Hatch will offer an amendment addressing the concerns the private transportation industry have held all along with regards to their responsibilities under ADA. The requirement that all small bus companies must purchase or lease all new over-the-road buses with lifts six years after the bill's enactment; and large bus companies must do so beginning five years after enactment remains an unresolved issue.

The ADA requires a three year study to determine whether this requirement, is in effect, feasible. The requirement, however, is not contingent on the results of the study -- it remains in place under this bill even if the study shows that the requirement is excessive.

Senator Hatch's amendment will delete the lift requirements currently in the bill until the study results become available. In addition, he will ask for the study to be completed in eighteen months rather than the three years required in the ADA.

The Administration compromised on the private bus industry's requirement to lift equip their fleet in 5-6 years from the original requirement of mandated lifts after only three years. The Administration supports the ADA private transportation requirements as is. Of the three amendments his transportation concerns have merit. Though the Administration made a compromise on the current language with regard to the private bus industry you may want to strike a compromise between the Administration and Senator Hatch's concerns.