What is CASp?
A Certified Access Specialist (CASp) is a professional who has passed an examination and has been certified by the State of California to have specialized knowledge of the applicability of state and federal construction-related accessibility standards. A CASp will know which standards apply to your property based on the age of your facility and its history of improvements. While a licensed design professional, such as an architect or engineer, can provide you an access compliance evaluation of your facility, only a CASp can provide services that offer you “qualified defendant” status in a construction-related accessibility lawsuit.
What are the “qualified defendant” status benefits?
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.
What is the ADA and how does it apply to my business or facility?
The Americans with Disabilities Act of 1990 (ADA) is a federal civil rights law that prohibits discrimination of individuals with disabilities and requires all facilities used by the public (public accommodations) to be accessible to individuals with disabilities. Since January 26, 1992, all new construction, additions and alterations are required to comply with the ADA standards. The ADA contains no “grandfathering” provisions. The “applicable construction-related accessibility standards” are based on the age of the facility and/or date of renovation(s):
- Facilities Built/Renovated Before January 26, 1992 Places of public accommodation constructed before this date are required to remove barriers if it is “readily achievable to do so” — a CASp can help make this determination.
- Facilities Built/Renovated Between January 26, 1992 and March 14, 2012 Places of public accommodation built during this time are required to be in compliance with the 1991 Americans with Disabilities Act Standards (1991 ADAS).
- Facilities Built/Renovated on or after March 15, 2012 Places of public accommodation and commercial facilities built after this time must be built in compliance with the 2010 Americans with Disabilities Act Standards (2010 ADAS).
In addition, accessible features are required to be maintained at your facility. Failure to come into compliance or maintain compliance leaves you vulnerable to having a discrimination claim filed against you by an individual that is denied access to your business or facility due to physical access barriers.
If my facility isn’t compliant with the current building code, does that mean I have a violation?
While the building code may change periodically, these changes do not cause a facility to become noncompliant with the new regulations. Facilities must comply with both federal and state accessibility standards; however, the current version of the state accessibility standards is not necessarily applicable to your existing facility. A CASp will know, based on its age and history of improvements, which version of the building code is applicable for determining compliance of your facility.
What is my potential liability if I am not in compliance?
With a CASp inspection, completed according to CRASCA (see “What should I look for in a CASp Inspection?”), you are considered “qualified defendant.” As a “qualified defendant” statutory damages may be reduced to a minimum of $1,000 for each occasion (visit) by the plaintiff if you can demonstrate that all construction-related violations that are the basis of a claim were corrected within 60 days of being served with the complaint.
In addition, qualifying small businesses that receive a CASp inspection, completed according to CRASCA, may opt for a 120-day grace period during which they are free from liability from statutory damages of those violations identified in the CASp report if they are corrected within this 120-day time period.
Without a CASp inspection, statutory damages of $4,000 may be assessed per occasion under Civil Code section 55.56; not $4,000 per each violation as previously allowed under the Unruh Act (Civil Code §52(a)).
A person is denied full and equal access if the individual personally encountered the violation or the individual was deterred from accessing a place of public accommodation. A denial of full and equal access includes instances where a person experienced difficulty, discomfort, or embarrassment because of the violation.
If you are found liable, you will be responsible for paying the plaintiff’s attorneys fees in addition to statutory damages.
Is there a grace period for coming into compliance?
A business owner who employs 50 or fewer employees over the past three years and opts to achieve compliance within 120 days from receiving a CASp inspection, completed according to CRASCA, receives a grace period from liability for statutory damages of violations identified in the report for 120 days from the date of inspection. In order to receive the grace period, the CASp must deliver the inspection report to you within 30 days of the inspection and post access inspection notices at the facility the day of the inspection and also notify DSA that he/she has performed an inspection of the facility so that DSA can post such information on a list on its website.
Who has responsibility for ADA compliance in leased places of public accommodation, the landlord or the tenant?
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.
Additionally, under California law, the landlord or commercial property owner is required to state on every lease form or rental agreement executed on or after January 1, 2017, whether or not the premises have been inspected by a CASp. As of July 21, 2017, “commercial property,” in regards to disclosures of disability access, is defined as property that is offered for rent or lease to individuals operating, or intending to operate, a place of facility of public accommodation in which the general public is invited.
Am I required by law to hire a CASp?
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.
How do I find a CASp?
DSA provides Certified Access Specialists List on its website. You can find an independent CASp on the list by looking for the CASp in your geographic region that states he/she performs inspections. For ease in using the list, click on the “Phone #” link in the gray header of the list, and the list will sort by area code. Those with a “Yes” in the “Do Inspections” column are independent CASps who are available for hire.
You may also consult with a CASp by contacting your local city or county building department; however, a CASp employed or retained by a local building department is only authorized to offer information regarding compliance to California construction-related accessibility standards, and not the ADA, and will usually only provide these services for new construction, additions, or alterations submitted for approval for permit.
What areas of my business will a CASp inspect?
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. The areas of your business used only for employees do not need to be inspected.
What should I look for in a written agreement for CASp services?
A CASp can provide to you a variety of accessibility services, including 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. 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) will be provided.
- State that a disability access inspection certificate will be provided.
- Include the CASp’s certification number and certification expiration date.
- Provide a place for both parties to sign the agreement.
What should I look for in a CASp inspection report?
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.
- The date of the inspection.
- 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 employed 50 or fewer employees on 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 days from the inspection, you are eligible for a grace period from liability for minimum statutory damages for the 120-day period if a claim is filed against you on those violations noted in your inspection report.
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.” If your facility pre-dates the enactment of the ADA and the public areas of your facility were not made accessible by a subsequent alteration, the ADA requires you to remove barriers that are readily achievable in all areas open to the public. 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.
Will the CASp issue certification that my facility is compliant?
Certification applies only to a CASp, and indicates that the individual has passed an examination and is certified by the State of California to have a specialized knowledge and application of state and federal laws and standards governing rights of individuals with disabilities. A CASp can conduct an inspection of your facility for compliance to applicable construction-related accessibility standards, but does not, and cannot, issue certification that a facility is compliant, nor can a CASp certify that a manufacturer’s product meets accessibility requirements. A CASp can only issue a disability access inspection certificate, which is a record that a CASp has performed an accessibility inspection of your facility, and that you hold an inspection report and schedule according to the requirements of CRASCA.
What is a Disability Access Inspection Certificate?
The disability access inspection certificate (Certificate) is a record of inspection, not a certificate of compliance. A CASp does not certify that a facility meets compliance with issuance of a Certificate. A Certificate is required to be issued to you with a CASp inspection report whether or not your facility is determined to meet applicable construction-related accessibility standards.
Business/facility owners should accept no other certificate offered by a CASp other than a Certificate purchased from the Division of the State Architect. Certificates are blue, sequentially numbered, and bear a golden State of California Seal. The Certificate number is recorded by the CASp in a record book maintained for that purpose and identifies that the certificate is issued in conjunction with a specific CASp inspection report.
You are not required to post the Certificate at the facility that was inspected, but you should have it readily available to offer it as proof that your facility has been inspected. If you do decide to post the Certificate, you may want to post a color copy and keep the original with the inspection report, as site conditions may cause the Certificate to fade or deteriorate. CASp inspection reports, however, should remain confidential and should only be disclosed after seeking the advice of an attorney.
I have a CASp inspection report and certificate. What should I do now?
If your CASp inspection report has a determination of “meets applicable standards,” then the CASp has determined that 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.
Can my CASp inspection report expire?
Your CASp inspection report does not expire and your “qualified defendant” status remains in place provided no additions, alterations, or improvements are made to the inspected area after you have achieved compliance. Improvements made with or without a permit affect the accessibility of the inspected area; therefore, you will need to obtain a new inspection by a CASp to once again become a “qualified defendant.” If your improvement is made with a permit through the local building department, you can request to have a CASp working for the building department perform the final inspection, as this also provides you with the legal benefits of a 90-day stay and an early evaluation conference for the improved area.
Do only alterations which require a building permit need to be compliant?
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.
Can a CASp review my plans prior to construction?
Prior to construction of your building project, a CASp is able to review the drawing plans for compliance to applicable construction-related accessibility standards. A CASp can also provide consultation services on other accessibility issues. While these services will not offer you “qualified defendant” status, you may be assured that planned improvements take into consideration construction-related accessibility requirements.
Does a CASp inspection entitle me to an expedited review of my plans?
Plans submitted for permit through the local building department for corrections are entitled to an expedited review if the applicant presents the disability access inspection certificate, declares that the project is for the correction of violations as listed in a CASp’s inspection report, and a CASp has reviewed the project plans submitted for permit.
If I receive a lawsuit claim regarding an access violation, can a CASp still help me?
If you receive a construction-related accessibility lawsuit, a review by a CASp of the alleged violations can help determine their validity. A CASp inspection performed after receiving a lawsuit will not, however, provide you with protections as a “qualified defendant” in that lawsuit.
Ultimately, a CASp can inspect your property for compliance issues at any time. While hiring a CASp after a claim has been filed against you may not offer you legal benefits for the present claim, it can provide you with legal benefits on any future accessibility claim that may be filed against you. Having a CASp inspection and possession of a CASp inspection report prepared according to CRASCA will offer you the legal benefits of a “qualified defendant” and may, if you are eligible, offer you a grace period from liability for statutory damages of those violations identified in the report while you are making improvements, and may reduce your liability from statutory damages for future claims that may be filed on the inspected area.
Article Credit: https://www.dgs.ca.gov/casp