Senator Duckworth to Feds: Enforce the ADA!

Most people have never heard of the American With Disabilities Act Mediation Program, and no wonder: The Department of Justice, which runs the program, hasn’t issued a quarterly report since 2011. Designed to provide streamlined resolution of ADA violations, the program is supposed to help citizens hold businesses and public institutions accountable when they skirt the law. Is it working as intended? Could better leadership heighten its impact?

Last week, US senator Tammy Duckworth—the only amputee in the US Senate, and a tireless advocate for disability rights—sent a letter to the DOJ requesting a detailed briefing about the Mediation Program. Co-signed by Senate colleagues Dick Durbin and Bernie Sanders, the letter stated: “Outreach from our constituents and analysis of program performance raises questions regarding the program’s effectiveness and transparency. DOJ has not regularly shared with Congress or the American people transparent, informative, or timely updates on the program’s performance and evaluation for over a decade.”

The Mediation Program was established in 1994, four years after the ADA went into effect, to keep minor ADA skirmishes out of the court system. Since the ADA lacks its own dedicated enforcement mechanism, citizens have to use the court system to protect their rights, either by filing a complaint with the Department of Justice to request enforcement or by pursuing an independent civil suit.

Both of those routes are costly and time-consuming, and they have highly uncertain outcomes. The Mediation Program gives people with disabilities a less onerous mechanism for asserting their ADA rights, while giving violators a face-saving, money-saving route to compliance. You could think of it as an ADA small-claims court—a practical, affordable way to keep everyone honest and deter corner-cutting.

Here’s a sampling of the cases successfully resolved by the Mediation Program in 2011, the last year for which a quarterly report was issued:

• An individual who uses prosthetic limbs complained that a youth recreational program in New Jersey was inaccessible. The program agreed to install access aisles and appropriate signage for accessible parking spaces; install handrails on a ramp to the facility’s entrance; lower part of the reception counter to 36 inches; relocate toilet paper dispensers, paper towel dispensers, and toilet flush controls; lower a public telephone; and install accessible door hardware throughout the facility.
• Two Manhattan hotels agreed to create an aggregate of 36 fully accessible guest rooms as part of an initiative to improve accessibility in New York’s Theater District. They were the latest of more than three dozen Theatre District hotels to add accessible guest rooms over a period of years.
• An individual who uses a wheelchair complained that a parking lot serving several medical offices had insufficient accessible parking and no van-accessible spaces. The offices resurfaced and restriped the parking lot to create ten additional accessible parking spaces, including five van-accessible spaces.
• An inmate who had a leg amputated while in a Kentucky state prison alleged that the prison denied him a prosthetic leg. The prison fitted him with a prosthetic leg and provided a physical therapist to assist in his rehabilitation.

The DOJ claims the Mediation Program has resolved roughly 300 cases a year since its inception, but the 13-year absence of reporting makes it impossible to verify that number or place it in context. As a first step, the senators have asked DOJ to address the following basic questions about the ADA Mediation Program:

• Why has there not been consistent public reporting on the ADA Mediation Program’s progress, performance, and outcomes?
• How many cases have completed the mediation process each year for the past five years?
• What is the success rate for the ADA Mediation Program?
• How does DOJ define a “successful” mediation?
• Are there mechanisms in place for stakeholders to provide feedback to DOJ or raise concerns about the mediation process, and if so, how does DOJ follow up on such feedback?

Depending on what that baseline information shows, more in-depth questions about the Mediation Program might follow. For example: Could funding and/or policy changes support a higher caseload? Is the Mediation Program providing equitable service across geographic, racial, gender, and income boundaries? If the program focused on certain categories of ADA noncompliance (e.g. digital accessibility, transit access, job accommodations), could it increase its volume and/or its success rate?

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