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Samson Elsbernd Admitted To District of Columbia Bar

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Wilke Fleury associate Samson R. Elsbernd recently became a member of the District of Columbia Bar.  Mr. Elsbernd was sworn in on December 6, 2010 by a three-judge panel of the District of Columbia Court of Appeals, the highest court in Washington, D.C. Mr. Elsbernd is now eligible to practice before the courts of the District of Columbia, in addition to all California courts and the U.S. Court of Appeals for the Ninth Circuit.

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Is Your Optometric Facility ADA Compliant?

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Introduction
The Americans with Disabilities Act of 1990 (ADA) is a civil rights law that was enacted to eliminate discrimination against the disabled. Title III of the ADA pertains to equal access to places of public accommodation, stating: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” The ADA defines “public accommodation” as specifically including the “professional office of a health care provider.” Accordingly, optometry offices are clearly covered by the law. It is important to note that the ADA can implicate not only the owner of the facility or business, but also anyone leasing or operating in the space.

Compliance with the ADA involves, among other things, adherence to a vast array of detailed structural requirements. Unfortunately, some people have seized upon the well-intentioned ADA as a lucrative business opportunity: they scope out businesses for violations – say, a handicapped parking space that is too narrow, or steps with no ramp access – and file a lawsuit. These “career plaintiffs” generally make their money by forcing small businesses – including medical offices – to settle for thousands of dollars, rather than face the expense of a lawsuit. ADA lawsuits are often preceded by a letter informing the business operator of their non-compliance, though plaintiffs are not required to give notice or to allow the facility to cure their violations before filing suit (many who receive these letters dismiss them as bogus or a scam, but they should be taken seriously). Sadly, these predatory tactics force many businesses to shut down if they cannot afford the expense of retrofitting their premises to comply with the ADA.

ADA Requirements
Given the stakes of noncompliance, it is important for every optometrist to become familiar with the ADA. Title III of the ADA outlines three main requirements for places of public accommodation such as an optometrist’s office. First, they must “make reasonable modifications in policies, practices, or procedures” to assure that individuals with disabilities have equal access to services and facilities, unless such modifications would “fundamentally alter” the nature of the optometric service. This requirement is rarely at issue in litigation – most often, a violation of this provision involves a refusal to allow a service animal inside the facility.

Second, optometrists must offer “auxiliary aids and services” to the disabled to ensure they are treated equally and inclusively, unless providing such services would “fundamentally alter” the nature of the service or would create an “undue burden.” Common examples of auxiliary aids and services include providing sign language interpreters, assistive listening headsets, television captioning, telecommunication devices for the deaf (TDD’s), and videotext displays. Optometrists need not provide the auxiliary aid or service requested by the patient, or even the most effective one – they simply must provide an aid or service that allows the patient an equal opportunity to obtain the same results as a non-disabled patient. Optometrists should consult with any disabled patient before his or her visit to determine what is a necessary accommodation.

Third, optometrists must “remove architectural barriers, and communication barriers that are structural in nature,” from facilities constructed before 1993 “where such removal is readily achievable.” (Buildings constructed in 1993 or later must fully comply with the ADA Accessibility Guidelines, or ADAAG.) This requirement is often the most cumbersome because it can involve costly retrofitting projects, such as installing wheelchair ramps, making curb cuts at sidewalks and entrances, and widening doorways. If making these changes is not readily achievable, optometrists must provide alternative measures, such as retrieving merchandise from inaccessible shelves, or relocating activities to an accessible location. Whether a removal of barriers is “readily achievable” is based on a variety of factors, including the cost of the removal and the financial status of the facility involved. However, only a court can ultimately determine whether the removal is readily achievable or not – and by that point, any defendant will have spent large sums on legal fees.

Finally, some ADA requirements are specific to professional offices of health care providers. Most notably, any building with two stories or more must have an elevator (other places of public accommodation need only have an elevator if the building is three stories or more). Optometrists should also be aware that making significant alterations or renovations to a facility may trigger additional responsibilities, as outlined in the ADAAG. Although compliance with all of these requirements may be expensive, the government offers some relief in the form of tax incentives to offset costs.

Recommendations
For existing facilities – especially those built before 1992 – it is important to assess whether the building is ADA compliant. If possible, it’s a good idea to hire an ADA compliance consultant, such as a Certified Access Specialist (CASp), or an attorney familiar with ADA requirements to perform an audit of the facility. Another option might be to consult with disability rights organizations to help identify any problematic structural barriers. When undertaking any improvements, it is best to prioritize tasks from the perimeter inwards – i.e., ensure access to the facility from sidewalks, parking structures, and public transit stops first, then access into the building itself, and finally internal facilities such as public restrooms, phones, and drinking fountains. This approach will help minimize the premises’ vulnerability to “drive-by” career plaintiffs. Finally, be sure to document any access improvement plans for use in any actual or threatened litigation in the future.

When constructing new facilities (or making significant renovations to existing ones), be sure to select an architect who has expertise in ADA compliance. The ADAAG also offers detailed information on all of the ADA structural requirements, as well as technical standards specific to medical care facilities.

Finally, since compliance with the ADA is an ongoing obligation, it is essential to establish procedures for ongoing compliance assessments. Being proactive in this regard is both a good business practice and a benefit to the disabled community and the community at large.

ADA Resources