Small businesses in Arizona are under siege as of late, enduring a slew of Americans Disability Act (ADA) lawsuits brought on by trial attorney sharks and serial plaintiffs.
The ADA is a relatively new civil liberties law which requires businesses make “reasonable accommodations” in both employment practices and physical public accessibility to individuals with disabilities. The ADA was passed in 1992 and includes provisions for new construction as well as modifications to existing structures if those modifications are not “unduly burdensome.” These rules are so technical in nature there are over 100 specifications in a bathroom alone in order to meet the standards.
Given the newness of the law and the hundreds of ways in which to be even slightly out of compliance, small businesses are especially ripe targets for litigation. Within Scottsdale, Phoenix, Mesa, Chandler and Gilbert, almost 1,000 lawsuits have been filed against businesses over the past six months. Many of these cases wind up not going to court but instead businesses pay a settlement check to the plaintiffs.
The organization behind the suits, Advocates for Individuals with Disabilities, look for any violation; including parking lot signage, hotels without pool lifts, and bathroom toilet paper dispensers that are hung even an inch below the required height. Partnered with the same couple plaintiffs who in most cases do not even visit the specific facilities, AID has sent tens of thousands of letters to businesses in the valley threatening suit and forcing inspections.
This is an ongoing problem and endemic in states such as California that represent a shocking 40 percent of all ADA lawsuits and yet only 12 percent of the nation’s disabled population. California law is especially punitive as it allows every ADA violation, no matter the severity, to be subject to penalty and allows the plaintiff to collect $4,000 in damages plus attorney fees.
California seems to be the hotbed for the country’s trial lawyers’ schemes. This year The American Association for Justice (an organization for trial lawyers) holds their annual convention in Los Angeles where attorneys will plot as to how they can manipulate the legal system to get rich off small and big businesses.
Like so many political and legal plagues of California, these tactics have spilled over into Arizona and now threaten the very livelihood of our small businesses and harm our economy. As evidenced by a series of lawsuits filed by an Arizona woman against over 30 hotels in Coachella Valley at which she seemingly never intended to stay. It is clear these suits are not about compliance as much as they are about trial lawyers getting a quick dollar from as many well-intentioned businesses as possible.
In an effort to curb this litigious abuse, a Republican United States Representative from California Ken Calvert, has sponsored federal legislation to give businesses 120 days to correct any ADA violation before a lawsuit may be filed. This would put the onus on the person who claims to be aggrieved to notify the business of the specific violations and allow the business time to respond, investigate, and if required comply.
If passed, this legislation would mirror the ADA guidelines for employment opportunity. Currently, businesses are encouraged to have a dialogue with persons with disabilities who are either interviewing or employed with the business, in order to make reasonable and necessary accommodations. This is a civil approach that promotes an equal and fair work environment while affording businesses time, predictability, and a way to curb excessive costs. The “ACCESS” legislation is a common sense approach that respects the business owners’ rights, honors the spirit of the law and improves accessibility, and discourages the frivolous congestion of our states’ courts.
The streets have been flooded this summer with California-bred, Big Union ballot initiatives. Although we celebrated a big win when the disastrous “Clean Elections” initiative failed to gather enough signatures, two others were filed at the deadline: the Minimum Wage Initiative, and a measure that seeks to cap the pay of hospital executives. Both submitted over 250,000 union bought signatures.
What is the impetus behind the Hospital Executive Compensation Act? The main driver/funder is the Service Employees International Union – United Healthcare Workers West (SEIU-UWW) out of California. They have led an effort of ballot initiatives and legislation over the past five years in several states to cap executive pay at hospitals. After losing a court case in El Camino County, California in 2013, where their ballot measure was ruled unconstitutional, the big union group has brought their bad ideas to Arizona.
Proponents argue hospitals receive enormous public subsidies, some in the way of property, income, and sales taxes exemptions, as well as by compensation through Medicaid and Medicare patients. Therefore, they ought to be able to prove they are providing more uncompensated care to the community than they are paying in salaries to top executives.
While there are a lot of problems associated with government subsidized medicine (the Club opposed Medicaid expansion in 2013), the fact is CEO compensation represents a fraction of the billions of dollars of these large hospital organizations’ total budget. Their salaries are determined by the market of supply and demand and for non-profits generally by the 50th percentile of CEO compensation of all hospitals. Many of these administrators are not only managing complex facilities with hundreds of beds and professional staff, but multiple hospitals as well.
Additionally, the metric of percentage of uncompensated care is misleading and unrelated to executive compensation. In order for hospitals to provide charity care, they must first have margins; revenues must exceed expenses. In order to accomplish this, many hospitals including non-profits, must establish services and technologies to attract private patients. Indigent care is driven by how many qualified patients come to a hospital.
It is in fact the government that has caused this problem. Over time, with the introduction of Medicaid, Medicare, Obamacare, and a tax and regulatory structure that impairs consumer choice and price signals, the government has inflated the cost of healthcare. By providing generous healthcare subsidies in the billions of dollars, they have displaced those costs onto everyone else. As they have turned the ratchet on socialized medicine over the past 50 years, costs have soared, and they have had to scramble to institute more “cost containment” measures – executive pay caps are just the latest. It is not generous pay scales that hinder charity care – it is a whole system wrought in bureaucracy where administrators are forced into economic decisions based upon government reimbursements and regulations.
Unmentioned by the initiative proponents is the IRS already requires non-profit hospitals to disclose executive salaries and benefits. The Treasury Department does a review and audit every three years to ensure that pay is reasonable and to ensure compliance with their status requirements. If they are found to be out of compliance, their exempt status can be revoked, forcing them to apply as a private hospital and to remit the applicable taxes. Hospitals are already highly regulated entities.
This initiative isn’t only antithetical to free markets principles; it will be a power grab for the state. The Attorney General will have the authority to audit a hospitals’ books – if found guilty of “excessive pay”, they could lose their state licenses as well as be charged under state consumer fraud laws. Furthermore, the AG will be allowed to place a representative on the hospital in question, board of directors. This is a gross infringement by the state into private organizations.
If passed, we can expect many of these executives to seek employment elsewhere, most likely out of state – taking their wealth with them. Just as countries such as Canada have experienced severe “Brain Drain” when they limited the compensation of its doctors and surgeons – Arizona will see the same. Experienced and talented hospital executives will be replaced with less qualified administrators. This will have a direct effect on the quality of care patients receive.
Executive compensation is in the end a red herring. This is just a means to in increase unionization in the health care industry and to distract people from the real culprit of high healthcare costs. Arizona voters should reject this very bad idea.
By: Stephen Moore and Scot Mussi
Arizonans might be surprised by a new report which suggests that Arizona is limping behind other states in economic development and attractiveness as a destination.
A new report called “Job Creation Progress Meter” by the Arizona Commerce Authority and Center for the Future of Arizona (re: How Arizona Can do Better on Jobs) uses highly misleading data to suggest Arizona is falling behind on jobs and growth.
The “job creation” report fails to make this adjustment, thus making Arizonans’ living standard lower than it really is. New York, New Jersey and Connecticut are portrayed by this measure as prosperous. But these three states that were once prosperous are now bleeding jobs, businesses and workers. Many of them have come to…Arizona. These newcomers apparently see more opportunity in Arizona than the academic researchers. Maybe they need to get out of the ivory towers.
Additionally, the “job creation” report seems to ignore every economic indicator that would portray Arizona in a favorable light. Nowhere does it include vital economic data such as population growth (Arizona ranks the 4th most attractive destination of any state in terms of domestic migration). The state’s tax burden is low (but should get lower). New business startups and relocations into the state are high.
The report instead focuses on fairly obscure ratings that are interesting but not central indicators of growth. These include international exports and venture capital investment per capita, two very narrow data points that tell us little about the overall health of Arizona’s economy. Arizona is a major tourist state. So relatively, the state has fewer jobs in areas like manufacturing. That doesn’t make us poor. Look at Florida for goodness sakes.
Incidentally, California does well in both exports and venture capital investment. Does anyone believe that we should emulate their policy model where the rich are very rich and the poor are very poor and the cost of living for the middle class is through the roof? We hope not. The middle class is fleeing the Golden State in droves with many coming here.
The truth is that Arizona is headed in the right direction. Arizona continues to have a pro-growth climate and ranks in the top five of states in terms of economic outlook according to ALEC, a membership organization of state legislators. Recently, Forbes magazine ranked Arizona the best state for future job growth in the nation.
For Arizona to do even better in the years to come means building on our current successes and staying ahead of our competitors by continually improving the tax, regulatory and fiscal policy of the state. It also means remaining focused on broad based reforms – like cutting tax rates – that benefit all taxpayers and employers, not targeted solutions that cater to a select few politically connected industries.
Stephen Moore is a Senior Fellow at the Heritage Foundation. Scot Mussi is President of the Arizona Free Enterprise Club.