ADA INSPECTION & COMPLIANCE CONSULTANTS

You can retain the services of a CASp at any time, however, “qualified defendant” status is only provided if you receive an inspection of your existing facility, a report from a CASp, and have a compliance schedule in place before a construction-related accessibility claim is filed. The “qualified defendant” benefits are as follows:
Reduced statutory damages (See “What is my potential liability if I am not in compliance?”; for more information
90-day stay of court proceeding and an early evaluation conference.
Additionally, an inspection by a CASp and following the schedule of improvements demonstrates the intent to be in compliance.

There is no law that requires a property owner or tenant to hire a CASp. If you are a business or property owner, your election not to hire a CASp shall not be admissible to prove your lack of intent to comply with the ADA or California law. If a CASp solicits your business with threat of legal action of a construction-related accessibility claim if you do not contract for services, you should immediately file a complaint with DSA.

While either or both can be sued, the ADA places the legal obligation to remove barriers, provide auxiliary aids and services, and maintain compliance of accessible features at a place of public accommodation on both the landlord and the tenant. The landlord and the tenant may specify within the terms of the lease who is responsible for which areas of the facility, but both remain legally responsible. Landlords (lessors) are required to disclose on every lease form or rental agreement executed on or after July 1, 2013, whether the property being leased or rented has undergone inspection by a CASp, and, if so, whether the property has or has not been determined to meet all applicable construction-related accessibility standards.

A CASp can provide to you a variety of accessibility services, including providing consultation and inspection of the public accommodation areas of your facility, and plan review of permit documentation. All CASps are required to provide you with a written agreement, which should specify the scope of work the CASp is providing. Most importantly, if you are seeking the services that offer you “qualified defendant” status, then the agreement should, at a minimum, include the following information: Define the public accommodation area of your facility being inspected. State that a CASp inspection report prepared according to the Construction-Related Accessibility Standards Compliance Act (CRASCA, Civil Code §55.51-55.545) State that a disability access inspection certificate will be provided. Include the CASp’s certification number and certification expiration date. Contain a place for both parties to sign the agreement.

We encourage you to have all areas of your facility that are available to the public included in the CASp inspection. Your “qualified defendant”; status will not carry over to non-inspected public areas in which you receive a claim for a violation. You may ask your CASp for guidance on areas you are unsure of. CASp reports are on public areas of your facility– not areas of your business accessible only to employees.

A CASp inspection report prepared according to the Construction-Related Accessibility Standards Compliance Act (CRASCA, Civil Code §55.51-55.545) must have specific required content in order to offer a “qualified defendant” status. The report should state that the site either “meets applicable standards” or “inspected by a CASp.” For a site that “meets applicable standards” the inspection report shall contain the following information: An identification and description of the inspected structures and areas of the site. A signed and dated statement that, in the opinion of the CASp, the inspected structures and areas of the site meet construction-related accessibility standards. The statement shall clearly indicate whether the determination of the CASp includes an assessment of “readily achievable barrier removal.” If a determination of “meets applicable standards” was issued in a report after corrections were made as a result of a CASp inspection, then the report shall contain a signed and dated statement by the CASp that indicates such and includes an itemized list of all corrections and dates of completion. For a site that is “inspected by a CASp” the inspection report shall contain the following information: An identification and description of the inspected structures and areas of the site. A signed and dated statement that, in the opinion of the CASp, the inspected structures and areas of the site need correction to meet construction-related accessibility standards. The statement shall clearly indicate whether the determination of the CASp includes an assessment of “readily achievable barrier removal.” An identification and description of the structures or areas of the site that need correction and the correction needed. A schedule of completion for each of the corrections within a reasonable timeframe. The CASp may request that a schedule for corrections be provided by you and submitted to the CASp for inclusion in the inspection report, depending on the nature and extent of improvements, or may work with you in establishing a reasonable schedule for correction of violations. A schedule of corrections is required, however, in order for you to have “qualified defendant” status. If you are a business owner that has employs 50 or fewer employees average over the past three years, and you opt to correct within 120 days all violations that are listed in the CASp inspection report, the CASp may acknowledge in the report that you have opted for a 120-day schedule. Along with your CASp inspection report you will receive from the CASp a disability access inspection certificate and a notice about the safekeeping of CASp inspection reports. It is important that you try your best to adhere to the reasonable schedule to demonstrate your desire to achieve compliance. If you adhere to your correction schedule and a claim is filed against you, you may be eligible for reduced liability for statutory damages. If you have opted to correct all violations listed in the report within the 120 from the inspection, you are eligible for a grace period from liability for minimum statutory damages if a claim is filed against you on the inspected area. What is “readily achievable barrier removal?”

The ADA states that facilities constructed before January 26, 1992, must remove barriers to accessing goods and services that are “easily accomplishable and able to be carried out without much difficulty or expense.” This requirement is known as “readily achievable barrier removal.” An assessment of whether or not removal of barriers at a specific site is readily achievable is a detailed process that should take into consideration the following: Identification of barriers that prevent an individual from accessing goods and services at your business. The scope and cost of measures necessary to remove or mitigate the barriers. Careful examination of the overall financial resources of your business enterprise. You may not want to release the above personal information to the CASp you hire, and many CASps may not be qualified to make such a thorough assessment of “readily achievable barrier removal;” therefore, a CASp may provide to you information on how a determination of “readily achievable barrier removal” is made in order for you to determine if an accessibility improvement is readily achievable. If you or your CASp determine that an accessibility improvement is not readily achievable, you will want to retain any documentation that substantiates this determination in your files, along with the CASp inspection report.

If your CASp inspection report has a determination of “meets applicable standards”, then the CASp has determined your facility meets applicable construction-related accessibility standards. Keep the CASp inspection report in your records and maintain the accessible features of your facility. If your CASp inspection report has a determination of “inspected by a CASp” you should strive to adhere to your schedule for improvements to come into compliance with applicable construction-related accessibility standards. Keep the CASp inspection report in your records. After improvements to come into compliance have been made to your property, you do not need to obtain a final inspection from a CASp in order to obtain or maintain “qualified defendant” status; however, you may elect to do so to ensure that improvements were made in compliance to the applicable standards. Most important, maintain the accessible features of your facility.

Improvements to existing facilities, buildings, and sites, made with or without a permit, must comply with the accessibility provisions of the California Building Code and the ADA Standards. You should ask your local building department if any proposed improvement requires a permit and/or the services of a licensed design professional such as an architect or engineer.