ADA Compliance and Defense Blog
What to do when you receive an ADA Compliance Questionnaire from the U.S. Department of Justice
Earlier this year, I wrote about the the sweeping scope of the DOJ’s ADA Compliance Review Survey of Manhattan hotels. Today, I’ll answer questions about what to do if you receive such a questionnaire from the DOJ. Be aware that if you receive an ADA questionnaire from the DOJ, it is very likely its investigators have already been to your establishment and have identified some issues of concern.
If I am a hotel owner or manager and I get an envelope from the DOJ with the ADA Compliance Review questionnaire inside. What do I do?
First, take it very seriously. Make sure the questionnaire gets to the right person as quickly as possible. That person should call an experienced ADA lawyer to walk them through this potential minefield of questions. The DOJ is surveying both hotel owners and managers, and the last thing you want is for this document to be sitting in someone’s inbox while the person tries to figure out what it means and who should be dealing with it. Every question on the form has been carefully crafted to elicit important information about ADA compliance. The survey is specifically focused on identifying architectural access barriers and, equally important, your hotel’s ADA policies and procedures. It is very detailed. Completing the questionnaire will take time and careful thought.
Don’t complete it yourself. Have a lawyer review it and advise you, first.
Why can’t a knowledgeable hotel professional answer the questionnaire? Why should an lawyer get involved?
Each question is designed to obtain precise information about complex, technical compliance with the ADA guidelines. Each answer may create liability. Your answers can also help you to avoid exposure. The questions must be thoroughly understood from a “Standard of Compliance” as defined by law. The right answer to a misunderstood question can cause serious problems that could cost you dearly. For example, the age of the property and the year that construction or “alterations” were performed can significantly impact the answers to questions.
Many hoteliers have spent time and money making their properties accessible to the disabled, and they may believe genuinely — but erroneously — that their properties are in compliance with the ADA, when in fact they still have barriers as defined under Title III of the ADA
Give us an example of a question that could cause a hotelier problems.
Questions about guest rooms have to be answered with great care. The questionnaire will likely ask for a description of all room categories in the hotel, and the number of accessible rooms in each distinct room class, as hotels are generally required to provide accessible rooms in each class. The thing you have to ask is: “What is a category or room class”? If this part of the questionnaire is completed by listing each marketing or price-point category, as opposed to actual different room types, you are going to have a problem. You should consider identifying guest rooms according to functional categories based on the types of amenities they offer. Your hotel may have many marketing-driven categories for rooms, but in actuality your rooms may simply be singles, doubles, queens, kings and suites.
In other words, if your “suite”, for marketing purposes, is a room that has an extra lamp, you may describe it separately for marketing purposes but you may not want to list it in a separate category on the questionnaire. If rooms cost an additional five dollars per floor, but there is no difference between the rooms on the 17th and 18th floors, they should not be listed in separate categories.
That could be tricky. Is there a little leeway in answering this questionnaire?
No, not much. You must be absolutely truthful! Remember, the questionnaire is submitted under penalty of perjury. Besides, it is likely that a DOJ investigator has already been to your hotel and knows the types of rooms you have.
What else should the owner or manager do, after he or she gives you a call?
The ADA Compliance Review specifically focuses on the hotel’s written accessibility policies and procedures. So, the ADA lawyer should ask you to start pulling together documentation. We need to review the written ADA policies and procedures that are provided to staff to see what they look like. Policies and procedure manuals should detail all the devices installed and all the processes the hotel has established for serving disabled guests.
Give us some examples of what those documents would include.
Your written policies and procedures manuals should include how to easily identify which ADA compliant rooms are available when customers call for reservations. It should include procedures for hooking up telephone “TDD” devices or smoke alarms for the hearing or seeing impaired, or any other specialized equipment needed for specific disabilities including repositioning furniture and guest amenities.
It should also include procedures for the evacuation of disabled guests in event of emergency, and how to deal properly with disabled guests who have service animals.
That’s a long list — is that it?
No, not by a long shot. Plus, you need to show how your reservations, sales and operating staff are trained in all these procedures.
So the first thing a hotel owner or manager does is call you and send you the questionnaire. Then you direct them to collect this documentation. Now what happens?
Next, we will set up a time for a professional independent access consultant to review your property for access barriers and we will respond to that part of the questionnaire. As I mentioned in the last interview, the DOJ has probably already been through your property, so you want to respond to this part very carefully. After you turn in the survey, the DOJ will come in with their team and perform a more formal site inspection.
So, what happens after the DOJ performs their inspection?
The DOJ’s people will determine what action needs to be taken. At that point, my job as your ADA lawyer is to advise you as to what is required by law and what is not, and to negotiate a reasonable resolution, taking into account the DOJ’s concerns and the resources you have available. We will most likely come up with a voluntary compliance agreement that everyone can live with. The goal here is to bring your hotel into compliance and provide accessibility to your disabled guests in a way that works for everyone.
With your experience in defending hundreds of ADA cases, how would you say that these ADA sweeps by the DOJ differ from the other ADA lawsuits you defend?
The issues are not much different. However, the DOJ is more serious about meaningful change than some ADA plaintiffs I have dealt with in the past. The DOJ is typically more concerned about compliance.
Martin H. Orlick is one of the top ADA defense lawyers in the country. He has helped hotels, restaurants, retailers, shopping centers, banks and other commercial property owners defend more than 600 ADA cases. In addition to defending lawsuits and governmental investigations, Marty’s team of ADA specialists focuses on enterprise-wide ADA compliance and litigation prevention, including facilities, website and operational compliance. Marty is the Chair of JMBM’s ADA Compliance & Defense Group, a Partner in JMBM’s Real Estate Group, and a member of the American College of Real Estate Lawyers (ACREL). For more information about ADA compliance and defense, contact Marty Orlick at 415.984.9667 or morlick@jmbm.com.