ADA and the “Sports Association.”

For years, I refereed and umpired basketball and softball. The entity for managing the referees and umpires were associations whose sole purpose was to deal with the referee side of things. Referees and umpires were ostensibly independent contractors (whether they are would be the subject of a separate blog entry and will not be the focus of this one). Also, many youths and athletic programs are run by associations as well. Today’s case deals with the question of what happens when such an association discriminates on the basis of disability. Can they be sued under title I, title III?

Today’s case is Nathanson v. Spring Lake Park Panther Youth Football Association, which can be found here. As is my usual practice, I have divided the blog entries into categories: facts; court’s reasoning the kids; court’s reasoning the parents; and takeaways. The reader is free to focus on any or all of the categories.


Prior to 2014, the Blaine/Spring Lake Park Athletic Association organized youth football programs in the Spring Lake Park area (Minnesota). The Blaine Athletics Association grew so much that a separate football Association, Spring Lake Park Panther Youth Football Association was created for youth residing in Spring Lake Park or attending school in the Spring Lake Park school district. In 2011 and then in 2013, two deaf kids, brothers, joined the Blaine Athletic Association. In 2011 and 2012, Blaine Athletic Association arranged and paid for ASL interpreters for games and practices. In 2012, the Blaine Athletic Association permitted the use of a sideline drum that was struck upon the snap of the football on each play. The purpose of that drum was to signal when each play started. Beginning in August 2013, the Fridley school district, where both kids attended school, provided ASL interpreters for football practices, game, and meeting under the boys IEP. However, Fridley in 2014, determined that because the football Association was not a Fridley public school sponsored event, it would no longer provide interpretation services for the kids. The plaintiff then requested the football Association to provide interpreter services for games and practices but the football Association denied that. The football Association did not provide interpreter services for the fall 2014 football games or practices and they also discontinued use of the drum. Accordingly, the two deaf kids struggled to identify when the play started.

Before moving on, it should be noted that the use of the interpreter and the drums is an accommodation that has already worked with respect to deaf people playing football. It is the way Gallaudet University fields its football team.

The parents of these kids also ran into trouble with the football Association. In particular, their father was an assistant coach for the team of the child who started with the Athletic Association in 2011. In May 2014, the father applied for a head or assistant coach position with the football Association. The football Association refused to provide him with an ASL interpreter for the mandatory prospective coaches meeting. Therefore, he provided his own interpreter and completed all the paperwork required to apply for the position. However, he was not offered the coaching position despite a shortage of coaches. Also, the football Association did not secure an ASL interpreter for either him or his wife at a mandatory parent meeting held on August 11, 2014. No ASL interpreter was provided by the football Association for September 21, 2014 board meeting. Finally, the football Association did not provide an interpreter for the kids mother at the mandatory, “tackle football mom’s clinic,” in August 2014, plaintiffs brought suit alleging that the football Association violated both title III of the ADA and the Minnesota Human Rights Act (while we will not discuss the Minnesota Human Rights Act in this blog entry, the court did find that the football Association was a place of public accommodation under that law). The football Association defended on the grounds that they were not a place of public accommodation and that with respect to the parents, they lacked standing to bring a title III claim as the parents complaint on their own behalf was alleging employment matters subject to title I and not title III.

Court’s Reasoning Kids and Title III

The court disagreed with the defense’s arguments and reasoned as followed:

1. The categories of 42 U.S.C. § 12181(7)(A-F) must be construed liberally in order to afford individuals with disabilities equal access to the establishments available to those without disabilities.

2. Regulations implementing title III of the ADA define a place of public accommodation as a facility operated by a private entity whose operation affects commerce.

3. To make a prima facie case for title III of the ADA, a plaintiff has to show: 1) that he is a person with a disability as defined by the ADA; defendant is a private entity owning, leasing, or operating a place of public accommodation; and 3) the defendant failed to make reasonable modifications that do not fundamentally alter the nature of the public accommodation.

With respect to 3 of subparagraph three, this section of the ADA is very confusing even to those who deal with the area all the time. The way this thing theoretically works is that if you are talking about modifying policies, practices, and procedures, the standard is fundamental alteration. However, if you are talking about are auxiliary aids and services, the standard is fundamental alteration or undue burden. The distinction is theoretical in all probability and not practical. Since undue burden can be both logistical and financial. Undue burden in the logistical sense is frequently equated with fundamental alteration, and I personally think that is the best approach.

4. An entity not directly connected with a physical place can meet the definition of a place of public accommodation, particularly when it comes to sports associations. After all, the football Association operates a youth football Association that host football practices, games, and social event for registered participants. Such conduct satisfies the definition of what the plain and ordinary meaning of the term operate would mean (put or keep in operation, control or direct the function of, or to conduct the affairs of, or manage). Further, the football Association uses the football fields as the primary location for its activities, and the football field would be places of recreation subject to title III of the ADA. Since the football Association’s games and practices are presumably scheduled in advance, it follows that the football Association probably has an arrangement with the City of Spring Lake Park allowing access and control to the fields.

Parents and Title III

The court disagreed with the defense arguments that the parents lack standing to bring a title III claim for the discrimination they faced and reasoned as follows:

1. If the matter was strictly limited to the parents ability to volunteer, then this court believed the claim would be more appropriate for title I than title III. However, the parents complaint was not limited to their inability to volunteer. In particular, the mother was unable to fully participate in mandatory meetings because the football Association failed to provide ASL interpreters. The father was denied the ability to participate in mandatory meetings because of his disability. The inability to participate in mandatory meetings is a closer fit to being a client or customer rather than being an employee and therefore, the title III claims of the parents can proceed.


1. It is a strange choice that the football Association made with respect to fighting the suit. The ADA and their implementing regulations make it quite clear that title II and title III entities have the duty to engage in effective communications, which we have discussed numerous times before in this blog, including here, with persons with disabilities. Also, use of the drums is something that is used all the time with respect to the deaf playing football. Since these accommodations are happening all the time without event, showing a fundamental alteration would seem to be impossible. That said, in this particular case, the football Association did submit financial records in an effort to demonstrate that providing ASL interpreters would be an undue burden on the football Association, but the court refused to convert the motion to dismiss into a motion for summary judgment. Even so, as we have mentioned previously in this blog, it would seem to be a very difficult proposition for the football Association to show that providing interpreters would be an undue financial burden, especially if all the resources of the Association are taken into account (the requirement set forth by the implementing regulations). Further, the cost of such accommodations would certainly not be more expensive than the cost of litigation. Finally, the predecessor football Association was providing these accommodations. Again, interesting choice of strategy.

2. What about the claim pertaining to the inability of the parents to volunteer for the Association. In particular, the inability of the father to be a coach despite being qualified, as the ADA would define the term, to be a coach. After all, he had already been an assistant coach and he had played football. Where does he turn to pursue the claim? He might start by reading this blog entry, which focuses on how § 504 of the Rehabilitation Act might be an avenue in such a situation if the entity takes federal funds. Having been a member of such associations in the past as a referee, showing that the Association takes federal funds may not be a simple proposition. The other option is to pursue a claim under title III alleging that the inability to volunteer denied them the privileges and benefits of the place of public accommodation, which was the argument that proved successful in this case, but one this court did not seem inclined to agree with.

3. The problem that exists with respect to a court not taking the approach of utilizing the Rehabilitation Act or the Menkowitz decision with respect to “independent contractors,” is that title I of the ADA only applies to employees. Therefore, if a volunteer (coaches and referees are always putatively independent contractors), suffered discrimination by the Association, such an individual with respect to “employment” would have no remedy at all. Of course, that assumes, that the referee or coach is truly an independent contractor, which may not be the case if my experience with these type of associations is indicative.

4. Considering the Supreme Court case of PGA Tour v. Martin, there was little choice for this court to hold that the football Association was a place of public accommodation with respect to the claims of the kids and with respect to the claims of the parents inability to effectively attend meetings. As mentioned above, harder call with respect to the “employment,” claims of the father.

5. If this case shows anything, it shows the need for training and the need to look backwards. We see this all the time in employment matters where a new manager comes in and undoes everything that had been working before to the employer’s detriment. The same thing happened here. Thus, training is always important. Oftentimes, I say so is consulting with knowledgeable counsel about the ADA. However, here it seems the football Association made a strategic decision to contest this case. One thing that oftentimes doesn’t get mentioned is that you can have knowledgeable ADA legal counsel, but ultimately how the client chooses to proceed is the choice of the client.

Alcoholism, Associational Discrimination, Retaliation, and Magic Words

For my Jewish brethren, I hope everyone survived the gauntlet of the Jewish High Holidays, which ended last night. Again, wishing everyone and their families a happy and healthy new year.

Today’s case comes from the United States District Court’s Southern Division in South Dakota and it takes on issues of alcoholism as a disability, associational discrimination, retaliation, and whether magic words are necessary when requesting a reasonable accommodation. The case, which appears to be an unpublished decision, is Adams v. Persona, Inc., 2015 U.S. Dist. LEXIS 110764 (D. South Dakota, August 21, 2015). As is my usual practice, the blog entry is divided into categories: facts; court’s reasoning regarding retaliation; court’s reasoning regarding associational discrimination; and takeaways. The reader is free to focus on any or all of the categories.


The plaintiff suffered from alcoholism. In August 2012, after he was notified of possible alcohol related misconduct at the workplace, several people from his employer met with him. At the meeting, the plaintiff was told that his employer, Persona, was engaging in a “fact-finding mission,” and he was asked about his alcohol consumption. In response, the plaintiff admitted to his alcohol dependency. The president of human resources then advised him to enter treatment and that the employer would allow him 10 weeks leave. Plaintiff was suspended from work and his employment status set to be reevaluated in 30 days. Several days after the fact-finding meeting, the plaintiff spoke with the president of human resources and was informed of his suspension. The president of human resources told him that she would attempt to find a new position for him upon his return but that it may not be in Madison. Furthermore, he was informed by the president of human resources that the 10 weeks of leave would be covered through his accumulated vacation pay and that he would have four weeks of accumulated vacation pay remaining. He entered a 30 day treatment facility on the same day he spoke with the president of human resources. He completed the treatment on September 12, 2012, and, on September 28, again met with various people from his employer including: the CEO; the company’s production manager; the president of human resources; and the employer’s president. At that meeting the plaintiff detailed his struggle with alcoholism and expressed a commitment to his job, his recovery, and sobriety. Further, he stated his wish to return to his old position as plant manager. Adams was again told that the employer was engaging in a “fact-finding mission,” and that it was, “not prepared to make a decision” after his employment. On October 10, 2012, just 12 days later, the plaintiff again met with the president, production manager, the CEO, and the president of human resources. At that time he was told that his employer was terminating him as of that day.

From there, it only gets worse with respect to the fact pattern for the employer. It turns out that the plaintiff’s daughter suffers from an autoimmune disease requiring transfusion treatments every 6 to 8 weeks. The health insurance for his daughter was provided through plaintiff’s insurance plan with his employer. In November 2011, the president of human resources held a company meeting where she stated that health insurance premiums were to be increased to 22.51%. She also stated that two of Persona’s employees were causing the premium hike. More specifically, the complaint alleged that the president of human resources implicitly named the plaintiff as one of the two employees because she stated, “that one reason the insurance premium rates were going to be higher was because one employee’s daughter needed treatments every 6 to 8 weeks and the treatments were expensive.” On August 14, 2012, a day after the plaintiff entered treatment, the plaintiff’s wife spoke to the chairman of the employer and to the chairman of the board for the employer regarding the president of human resources November 2011 comments about her daughter’s treatments. The chairman of the employer stated that they run a report every so often to see which employees have the highest payout of insurance benefits and that the report indicated that the plaintiff was an employee with one of the highest amounts. In February 2013, the plaintiff filed a claim with the EEOC and after receiving a notice of right to sue filed suit. The complaint contained several counts, of which only two of them the employer sought to dismiss (retaliation and associational discrimination).

Court’s Reasoning Retaliation

In denying the employer’s motion to dismiss the retaliation claims, the court reasoned as followed:

A. Retaliation

1. In a footnote, the court noted that neither party contested whether the plaintiff’s alcoholism qualified as a disability under the ADA, and therefore, the court proceeded under the assumption that the plaintiff was a person with a disability under the ADA. The court also noted that the ADA prohibits retaliation against a good faith request for accommodation even if the alleged disability turns out to be uncovered by the ADA.

2. To make out a prima facie case for retaliation in violation of the ADA, plaintiff has to show: 1) he was engaged in a protected activity; 2) he suffered an adverse employment action; and 3) there was a causal connection between the first two elements.

3. A request from the employee suffering from alcoholism to be granted a leave of absence to attend to inpatient recovery is the kind of request protected from retaliation. The court in their discussion cited to another case that noted that treatment would seem to be essential to any accommodation for alcoholism.

4. The court also noted that other decisions have held that a plaintiff is not required to speak any magic words when making a request for reasonable accommodation. In fact, the employee does not need to mention the ADA or even the term accommodation, and nothing in the ADA prescribes how the accommodation is requested. Therefore, a request for leave to attend rehabilitation for alcohol dependency qualifies for ADA protection as a request for accommodation.

5. One way an employer becomes aware of the need for an accommodation is being informed of an employee’s disability by the employee himself. Here, the plaintiff admitted to alcohol dependency and such admission may be construed as his request for accommodation since the plaintiff was not required to explicitly request accommodation in order for the employer’s duty to accommodate to be triggered. That is, the admission by the plaintiff himself was also the request for reasonable accommodation.

6. No specific language needs to be uttered by an employee before the employer has a duty of reasonable accommodation and therefore, the request for an accommodation itself requires no precise language. The confirmation of his alcohol dependency was the act necessary to put his employer on notice and trigger its duty to accommodate. While it is true that no explicit request for accommodation was made by the plaintiff, a reasonable juror could conclude that the employer retaliated against the admission of dependency itself as it was that admission that triggered the employer’s duty to accommodate.

7. In another footnote, the court noted that retaliation might also be of the anticipatory variety. That is, action taken against an individual in anticipation of that person engaging in protected opposition to discrimination is no less retaliatory than action taken after the fact. That is, an employer is equally prohibited from anticipating an employee’s request for an accommodation by preemptively suggesting its own so as to cancel out the employee’s protected activity, and then terminating his employment.

8. In short, the retaliation claim survived because: 1) plaintiff was confronted about his alcohol consumption; 2) he admitted to struggling with alcohol dependency; 3) the employer granted him leave to get treatment and he did attend treatment; 4) he was subsequently terminated from employment; 5) he was granted 10 weeks of leave to pursue treatment; 6) pay for those 10 weeks with to be drawn from his accumulated vacation pay; and 7) instead of allowing the full 10 weeks to elapse, his employer reevaluated his employment 30 days after leave was granted and terminated the employment short of the full 10 weeks.

Court’s Reasoning Associational Discrimination

1. Properly stating a claim of associational discrimination means showing: 1) a person was qualified for the position; 2) person was subject to adverse employment action; 3) the person was known to be associated with a disabled individual; and 4) the discharge occurred under circumstances raising a reasonable inference that the association with the disabled individual was a determining factor in the employer’s decision to terminate employment. There also must be a causal connection between knowledge of the association a person has with a person with a disability and the adverse employment action.

2. All four of the factors are satisfied because: 1) the plaintiff was qualified for the position. In fact, from starting at his employer, he was eventually promoted to plant manager; 2) the plaintiff was terminated and termination is an adverse action; 3) the employer was aware that the plaintiff’s daughter was a person with a disability and required treatment. In fact, the employer admitted as such through its November 2011 meeting where the president of human resources mentioned that the plaintiff’s daughter was causing insurance premiums to rise due to her necessary medical treatments. Further, an official of the employer told the plaintiff’s wife that her husband was one of two employees with the highest insurance payouts.

3. Causation is satisfied because of numerous circumstantial pieces of evidence including: 1) the employer knew that plaintiff’s daughter was a person with a disability and required treatment; 2) the statements that the plaintiff was one of two employees causing insurance premiums to rise; and 3) the chairman’s statement to the plaintiff’s wife regarding the running of the insurance reports. Of course, there are the facts mentioned above as well.


1. I find it interesting that the employer didn’t argue that the plaintiff was not protected under the ADA because they were “currently engaged with alcohol,” per this blog entry of mine.

2. Employers, governmental entities, and businesses should stop looking for magic words when it comes to request for reasonable accommodations. Employer should consider having persons with disabilities in their human resources department whose responsibilities include reviewing reasonable accommodation requests or requests that might be considered reasonable accommodations. Request for reasonable accommodations may very well be viewed differently depending upon whether the individual viewing the request is a person with a disability or not. Even so, if it is uncertain whether a request is a request for reasonable accommodation, preventive law would demand that the benefit of the doubt be in favor of finding such a request is being made. Once the decision is made that a request for reasonable accommodations has occurred, don’t forget to engage in the interactive process.

3. Employers need to be careful about disclosing to others any information that may tip off people as to the the specific condition of a person with a disability. Keep in mind, that the ADA requires that the employer keep disability related information confidential (see this blog entry of mine).

4. If an employer believes that by offering the accommodation without being specifically asked by an employee gives them the ability to claim that the reasonable accommodation request was never made and therefore there was no retaliation, such a practice may well be frowned upon by the courts as it was by this court.

5. For a person to claim retaliation, it is not necessary that the person is later found to have a disability under the ADA.

6. Very interesting about what the court says is the prima facie case for showing associational discrimination. In particular, element 4 stating that circumstances might be such so as to raise a reasonable inference that the association with the disabled individual was a determining factor in the employer’s decision to terminate employment. So, what does the ADA itself say about causation with respect to associational discrimination. If one looks at 42 U.S.C. § 12112(b)(4), the term used is, “because of the association.” Now, that brings us back to what “because,” might mean. For that, you might want to check out this blog entry and this blog entry. The term used by this court is “determining factor.” The plain meaning of that term is not sole cause, but rather more akin to “substantial factor,” as discussed in this blog entry. Nevertheless, it remains an open question as to what “because,” means in the context of associational discrimination. I would look for a lot of litigation to be coming on that point. Keep in mind, you do not see a lot of associational discrimination cases in the first place. Even so, when you do see it, I would certainly expect litigation over whether a mixed motive jury instruction has a place in associational discrimination case.

7. I find it curious that there is no mention of any of the corporate actors consulting legal counsel. One wonders if ADA knowledgeable legal counsel would have been consulted, things would have reached this point especially given these facts. Human resources, and for that matter, top management always need to have a direct line to legal counsel.

Proposed Rules of HHS Implementing the Affordable Care Act Dealing with Nondiscrimination in Health Programs and Activities

Before getting started on this week’s blog entry, I do want to wish everyone that might be celebrating the Jewish New Year next week a happy new year. Also, because I am one of the people celebrating the Jewish new year and will have family responsibilities all week, I am not anticipating putting up a blog entry for next week. I do anticipate getting a blog entry up the early part of the following week.

The Department of Health and Human Services just issued proposed regulations implementing the Affordable Care Act and dealing with nondiscrimination in health programs and activities. What I thought I would do is highlight the proposed regulations with respect to disability discrimination (the regulations go far beyond disability discrimination-such as even talking about transgender issues-but our focus is going to be solely on disability discrimination). So here goes! I have the blog entry divided into two sections. In the first section, I highlight the disability discrimination provisions of the proposed regulations. In the second section, I list takeaways. I suppose it is possible that the reader could just focus on the takeaway section without looking at the proposed regulations highlight, but I am not sure the reader will want to do that. Nevertheless, the option is there.

1. The proposed regulations implement this statute, which prohibits discrimination on the basis of various things, including disability, in any health program or activity receiving federal financial assistance.

2. Remedies for violations with respect to disability discrimination are tied into the Rehabilitation Act;

3. The effective date of the Affordable Care Act’s implementing regulations dealing with nondiscrimination will be 60 days after publication of the final rule in the Federal Register;

4. Health and Human Services is proposing to apply the nondiscrimination regulations to the following: all health programs and activities, any part of which receives federal financial assistance administered by Health and Human Services; health programs and activities administered by the Department including federally-facilitated marketplaces; and health programs and activities administered by entities established under title I of the Affordable Care Act, including state base marketplaces.

5. Lesser standard for the protection of individuals from discrimination under civil rights laws, including § 504 are not going to happen with respect to the nondiscrimination protections offered by the Affordable Care Act.

6. Auxiliary aids and services have the same definition as contained in the regulations implementing title II of the ADA.

7. The proposed regulations cover: an entity that operates a health program or activity, any part of which receives federal financial assistance; an entity established under title I of the Affordable Care Act that administers a health program or activity; and the Department of Health and Human Services.

I do find the use of the term “and,” a bit funny here. It would seem that “or,” would have been a better fit. I don’t think it matters much, but it theoretically creates a problem of interpretation that didn’t need to be there.

8. A person with a disability is defined in the same manner as under the ADA and under the Rehabilitation Act.

9. “Federal financial assistance,” extends to the entity providing health insurance coverage or services, regardless of whether they are paid directly by the federal government to that entity or to the individual for remittance to the entity providing health insurance coverage or services. This means that if a person is buying coverage under a plan through a subsidy from the federal government, the plan will be deemed to be receiving federal financial assistance even though the plan is not receiving the money directly from the federal government.

10. If an entity has 15 or more employees, the proposed regulations require the entity to have a grievance procedure. Further, they are taking comment on whether a grievance procedure should be mandatory regardless of the size of the employer.

This one I found very interesting because it illustrates a difference between the ADA implementing regulations and the Rehabilitation Act implementing regulations. Under title II of the ADA, 28 C.F.R. § 35.107, a grievance procedure is required if the public entity has 50 or more employees. However, the Rehabilitation Act has a different requirement, 15 employees per 45 C.F.R. § 84.7.

11. A notice requirement exists and the notice must include: a statement that the covered entity does not discriminate on the basis of disability among other things; a statement that the covered entity provides auxiliary aids and services free of charge in a timely manner for individuals with disabilities when such aids and services are necessary to provide an individual with a disability an equal opportunity to benefit from the entity’s health programs or activities; information on how the individual can access the aids and services; contact information for the responsible employee; information about the grievance procedure and information on how to file a grievance; and information on how to file complaint with the Office of Civil Rights of the Department of Health and Human Services.

12. Except in limited circumstances, the proposed regulations do not apply to discrimination by a covered entity against its own employees. Rather, such cases are governed by other laws. The limited circumstances are: the entity is principally engaged in providing for administering health services or health insurance coverage; the entity receives federal financial assistance the primary objective of which is to fund the entity’s employee health benefit program; or the entity is not principally engaged in providing or administering health services or health insurance coverage but operates a health program or activity, which is not an employee health benefit program, that received federal financial assistance (in that particular situation, the regulation applies only with respect to the employee health benefits offered to employees in that health program or activity). In short, the Affordable Care Act nondiscrimination provision only applies to an employer’s employees if the primary purpose of the federal financial assistance is funding employee health benefits regardless of whether the employee health benefit program is self-insured or fully insured by the employer.

13. Prohibits a covered entity from requiring an individual with limited English proficiency to provide his or her own interpreter.

14. Prohibits a covered entity from relying on a minor child to interpret or facilitate communication with limited exceptions (an emergency situation for example).

15. Adopts the effective communication rules of title II of the ADA, which we have discussed here.

16. Establishes specific accessibility standards for new construction and alterations consistent with existing standards under the ADA. The specific guidelines to use depend upon when the facility is constructed or modified.

17. Medical diagnostic equipment will have to be accessible to persons with disabilities under the standards developed by the United States Access Board.

18. Health programs or activities provided through electronic and information technology must be accessible to individuals with disabilities per title II of the ADA unless it would impose undue financial and administrative burdens or result in a fundamental alteration in the nature of an entity’s health program or activities. This particular provision extends beyond the covered entity’s website to all of the covered entity’s electronic and information technology. Health and Human Services specifically seeks comment on that extension.

19. As readers of this blog know, the Department of Justice is insisting upon accessibility of electronic communications to be in accordance with worldwide web accessibility guidelines 2.0. The other option was for the Department to require electronic communications be consistent with § 508 of the Rehabilitation Act. What is interesting is that Health and Human Services decides to go with a general nondiscrimination approach rather than adopt either of these standards and then solicit comment as to whether they should forgo the general nondiscrimination approach in favor § 508 or worldwide accessibility guidelines 2.0.

20. In determining whether an action is an undue burden, covered entity must consider ALL (emphasis mine), of the resources available for use in the funding for operation of the health program or activity. Where an undue financial and administrative burden or a fundamental alteration exists, the covered entity is still required to provide information in a format other than an accessible electronic format that would not result in the undue financial or administrative burden or the fundamental alteration. The focus on all of the resources is consistent with both the EEOC regulations implementing title I of the ADA and the Department of Justice regulations implementing title II of the ADA. Is that the proper focus? Justice Ginsburg in Olmstead has some interesting views to consider on that.

21. Reasonable modifications in policies, practices, or procedures must be made in order to allow a person with a disability access unless a fundamental alteration to the health program or activity is involved.

22. Health and human services is proposing that the rule apply to all issuers receiving federal financial assistance regardless of whether their products are offered through the marketplace, outside the marketplace, an individual or group health insurance markets, or as an employee health benefit program through an employer-sponsored group health plan.

23. Plans are not required to cover any particular benefit or service, but their plan cannot operate in a discriminatory manner with respect to their coverage.

24. The proposed regulations prohibit discrimination based upon association with a member of a protected class, including a person with a disability.

25. A private cause of action and damages exist for violation of the law per § 504 of the Rehabilitation Act. Venue will lie in a United States District Court where the state-based marketplace is located. Since remedies are tied into § 504 the Rehabilitation Act, presumably, exhaustion of administrative remedies is not required. My view on these things is that it is always better to exhaust administrative remedies even if not required, but it isn’t necessary to do so. Since remedies are tied into the Rehabilitation Act, that makes you wonder how causation will be determined. The Affordable Care Act nondiscrimination statute relates back to the Rehabilitation Act and contains no causation language whatsoever.

26. Retaliation is prohibited, but can you get compensatory damages?

27. Qualified individual with a disability means an individual with a disability who, with or without reasonable modifications to policies, practices, or procedures, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meet the essential eligibility requirements for the receipt of aids, benefit, or services offered or provided by the health program or activity.

The definition essentially borrows from the title II definition of what a qualified individual with a disability is except it pacifically references health programs and activities due to the context. This does mean you want to be sure the client understands what the essential eligibility requirements are of the program. See this blog entry for example.

28. Qualified interpreter means an interpreter adhering to generally accepted interpreter ethical principles, including client confidentiality and who, via remote interpreting service or on-site is able (for an individual with a disability), to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. Qualified interpreters can include sign language interpreters, oral transliterator’s, and choose language transliterators.

29. Entities subject to the proposed regulations must assure Health and Human Services that they will comply with the nondiscrimination requirements.

30. Health and Human Services has the ability to go after covered entities for violations.


1. Lawyers familiar with title II of the ADA should have little trouble dealing with the Affordable Care Act’s nondiscrimination regulations.

2. Essential eligibility requirements are critical. For some thoughts on how you might go about developing essential eligibility requirements, check out this blog entry.

3. The proposed regulations clearly specify that retaliation is prohibited and is a separate cause of action, but can you get damages for such violations? It isn’t necessarily a straightforward question with respect to disability discrimination as we discussed in this blog entry.

4. The Affordable Care Act’s nondiscrimination statute contains no causation language whatsoever. Rather, it relates back to various laws. With respect to disability discrimination, it relates back to the Rehabilitation Act. That leads to the strong argument that causation with respect to disability discrimination under the Affordable Care Act’s nondiscrimination statute is going to be, “solely by reason of.” That means it is entirely possible that depending upon the particular plaintiff suing for violation of the Affordable Care Act’s nondiscrimination provision, the causation standard may well be different from plaintiff the plaintiff even though the same nondiscrimination provision of the Affordable Care Act is at issue. For a discussion of causation vis-à-vis disability discrimination, check out this blog entry.

5. If you haven’t become familiar with the effective communication rule of title II of the ADA, now would be a good time to do so. An excellent discussion of that rule can be found in this blog entry.

6. It is interesting that the Department of Health and Human Services is not taking the stance on the standard for web accessibility, though they might in the future depending upon the comments. The bottom line is regardless of whether your company adopts § 508 or web accessibility guidelines 2.0, make sure your company gets its electronic communications accessible to persons with disabilities. Also, make sure you involve people and groups across all disabilities. For example, just because something is accessible to those using screen readers doesn’t necessarily make it accessible to those using voice dictation technology.