Understanding the ADA

The Blog of William D. Goren, J.D. LL.M. - Of Counsel, Kitchens New Cleghorn, LLC

§504

Deaf Rights Game Changer Blowback: Silva Severely Narrowed by a Court Within Seventh Circuit

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Hope everyone had a great Thanksgiving. As many of you know by now if you are following me on LinkedIn, my blog was selected for inclusion in the ABA web 100 for 2018. This makes five years in a row for me. Since podcasts and twitter are part of the calculus now, the blog is actually one of the top 33! I wouldn’t do any of this if it wasn’t for my readers and their support. Thank you so much! Also, I encourage you to check out the entire web 100 as there are many excellent resources there. Finally, there are lots of good legal blogs out there, many of which are in my blog roll, that did not make the ABA web 100 for one reason or another. I encourage everyone to check out the blogs in my blog roll as I wouldn’t list them if they were not excellent.

 

In a previous blog entry, we talked about the case of Silva v. Baptist Health South Florida Inc. and how that case is a game changer for the culturally deaf. One of the beauties or frustrations of our system of jurisprudence is that the Circuits are free to go each way they want to go and it is up to the United States Supreme Court to resolve those differences. I thought it would be interesting to explore how a District Court within the Seventh Circuit approached the Silva scenario. Not surprisingly, it is quite a bit different than the 11th Circuit even if it is paying lip service to the 11th Circuit at the same time. The case is Juech v. Children’s Hospital Health System Inc. decided on November 2, 2018. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and takeaways. Of course, the reader is free to focus on any or all of the sections.

I

Facts (Taken from Opinion Itself)

Plaintiff Alissa Juech has been deaf since birth and communicates primarily through American Sign Language (ASL). (ECF No. 46, ¶ 1.) On the morning of February 5, 2015, Juech took her approximately 3-month-old son, B.J., to the emergency department of Children’s Hospital of Wisconsin. (ECF No. 46, ¶ 35.) Juech’s mother arrived at the hospital at roughly the same time, and Juech asked her to request the hospital provide her with a sign language interpreter. (ECF No. 46, ¶ 36.) Juech had been to Children’s Hospital roughly 10 times before and had requested a sign language interpreter on each of those prior visits. (ECF No. 46, ¶ 28.)

It is Children’s Hospital’s policy to provide interpreters upon request, and it informs patients and families of the availability of interpreters. (ECF No. 46, ¶¶ 17-19, 21.) It is the hospital’s policy to obtain an in-person interpreter if one is available. (ECF No. 46, ¶ 13.) If an in-person interpreter is not available, the hospital will provide a sign-language interpreter through video remote interpreting (VRI). (ECF No. 46, ¶ 22.)

Children’s Hospital initially used VRI—essentially a live web cam—to communicate with Juech and to obtain B.J.’s medical history and chief complaints. (ECF No. 46, ¶ 39.) According to Juech, hospital staff did not know how to set up or use the VRI. (ECF No. 51, ¶ 120.) According to Juech, “[t]he VRI device was rarely utilized during B.J.’s treatment because Children’s Hospital staff did not know how to set it up or use it.” (ECF No. 51, ¶ 121.) She alleges that “[t]he VRI device took several minutes to start up . . . [and] froze constantly.” (ECF No. 510, ¶ 121.) In one instance, Juech used the VRI device while breastfeeding her child, a task she found “exceedingly difficult . . . because she was forced to stand in order to see the machine and sign at the same time, all while holding her child.” (ECF No. 51, ¶ 127.) The hospital then used an in-person interpreter while B.J. continued to be treated in the emergency department; this interpreter also provided services after B.J. was moved to a nursing floor. (ECF No. 46, ¶ 43.) Hospital staff informed Juech that B.J. may have a respiratory virus and that he should stay overnight for observation. (ECF No. 46, ¶¶ 44-45.)

Later that evening Juech’s husband arrived at the hospital and the Jueches were informed that B.J. would be moved to the pediatric intensive care unit. (ECF No. 46, ¶ 50.) This discussion occurred with Juech using an interpreter through VRI, and her husband does not recall the VRI posing any difficulties or Juech having any questions or concerns that were left unresolved. (ECF No. 46, ¶¶ 50-51.)

At other points during B.J.’s hospitalization Juech communicated with medical providers in writing—for example, by way of messages typed on a phone and then shown to the recipient, or by handwritten notes. (ECF No. 46, ¶¶ 68-71.)

An in-person sign language interpreter was present when B.J. was discharged from the hospital on February 7, 2015. (ECF No. 46, ¶¶ 60-61.)

Two years later, in February of 2017, Juech returned to Children’s Hospital with her four-month-old daughter, A.J. (ECF No. 46, ¶ 76.) The hospital provided her with an interpreter through VRI. (ECF No. 46, ¶ 78.) Hospital staff obtained A.J.’s medical history from Juech, although Juech does not recall if it was done using the VRI. (ECF No. 46, ¶¶ 79-83.) A physician later obtained A.J.’s medical history from Juech by way of the VRI. (ECF No. 46, ¶ 92.) Although Juech does not recall how it was communicated to her, she understood that A.J. would be admitted to the hospital for observation. (ECF No. 46, ¶ 88.) Juech requested an in-person interpreter for the following day (ECF No. 46, ¶ 88), stating that the VRI does not work for her (ECF No. 46, ¶ 94) and that she preferred in-person interpreters for questions, rounds, and especially discharge instructions (ECF No. 46, ¶ 96). An in-person interpreter was provided at A.J.’s discharge. (ECF No. 46, ¶ 107.)

Juech brought this action alleging that Children’s Hospital and Health System, Inc. and Children’s Hospital of Wisconsin, Inc. (collectively, “defendants” or “Children’s Hospital”) violated the Americans with Disabilities Act (ADA), 42 U.S.C. §12181 et seq.; § 504 of the Rehabilitation Act of 1973 (RA), 29 U.S.C. § 794; Wis. Stat. § 106.52; and the Patient Protection and Affordable Care Act (ACA), 42 U.S.C. § 18116(a). (ECF No. 1; see also ECF No. 28 (amended complaint).) Specifically, Juech alleges that the defendants “failed to provide her with the auxiliary aids and services required to enable effective communication during the hospitalizations of her two infant children in Children’s facilities.” (ECF No. 45 at 1.)

II

Court’s Reasoning

  1. The court notes that a hospital is a place of public accommodation under 42 U.S.C. §12181(7)(F).
  2. The court cites to the ADA’s auxiliary aids and services section at 42 U.S.C. §12182(b)(2)(A)(iii) and the ADA’s final implementing regulations at 28 C.F.R. §36.303(a).
  3. The court cites to 28 C.F.R. §36.303(c)(1)(ii), which discusses that the type of auxiliary aids or services necessary to ensure effective communication varies: 1) by the method of communication used by the individual; 2) by the nature, length, and complexity of the communication involved; and 3) by the context in which the communication is taking place. That regulation goes on to say that the place of public accommodation should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication but the ultimate decision rests with the entity subject to title III of the ADA so long as that method results in effective communication.
  4. Citing to the case we discussed here, the court said that whether a particular aid is effective in affording a patient an equal opportunity to benefit from medical treatment depends on context, including the nature, significance, and complexity of the treatment.
  5. Citing to 28 C.F.R. §36.303(c)(3), a hospital cannot require a culturally deaf individual to provide his or her own interpreter, aside from emergencies or when requested by the culturally deaf individual, and cannot rely on a person accompanying the culturally deaf individual to serve as a translator.
  6. 28 C.F.R. §36.303(f) allows a place of public accommodation to use VRI services under certain circumstances.
  7. Rules for the Rehabilitation Act are very similar to the rules for the ADA.
  8. The court was not buying the defense argument that either the ADA or the Rehabilitation Act claim had to be dismissed because the claims were duplicative since the claims may not be at duplicative as they appear at first glance. For example, distinctions between the two laws do exist and it is also possible that one statute might afford relief not available under a related law. Finally, any concern that the pursuit of a similar claim could lead to impermissible duplicate to recovery can be addressed before trial or through appropriate jury instructions.
  9. Children’s Hospital did not have to provide the plaintiff with an interpreter at all times so long as it could provide effective alternative means of communicating with her.
  10. VRI is an acceptable auxiliary aid even in a medical context and written communication may be acceptable, especially for routine matters.
  11. A temporary failure or complication with the VRI does not amount to discrimination because technology is imperfect and the Department of Justice explicitly recognized that. Since it could be expected that it might take some time for an interpreter to arrive at a location needing his or her services, a delay in obtaining and starting up the VRI does not necessarily constitute discrimination.
  12. It is not discriminatory for a hospital to attempt to communicate through written notes only to find that the issue being discussed is to complex for written notes unless the hospital failed to provide an alternative auxiliary aid once it became clear that the initial method of communication was ineffective.
  13. Effective communication is a two-way exchange. That is, just because hospital personnel can get information from the patient does not establish that the patient can get information from the hospital.
  14. Silva holds that persons with disabilities are entitled to exchange all medically relevant information not merely information about primary symptoms, treatment plans, and discharge instructions.
  15. There is only one instance in the complaint where the plaintiff alleges the absence of an adequate auxiliary aid resulting in a lack of communication and whether that instance constitutes a denial of effective communication is not a question that can be appropriately resolved at summary judgment since effective communication matters are so fact intensive.
  16. VRI that consistently results in lags, choppy, blurry, or grainy images, or regular pauses and communication amounts to discrimination if it results in ineffective communication. That is, the VRI problems must be repeated and constant to violate the ADA’s effective communication requirements. Such a question is a question of fact.
  17. The court opts to follow the deliberate indifference standard set forth in the case we discussed here, but goes on to say that deliberate indifference is not present in this case. That is, the plaintiff testified at her deposition that the hospital staff tried to work with her to find solution to any problem she had communicating with them. At her deposition, plaintiff blamed the hospital and not the staff for her communication problems. The court stated: “But her assertion that hospital administration “did not want to pay for a live interpreter” appears to be based entirely on impermissible hearsay. She recounts: “I asked for a live in-person interpreter and they brought the VRI and I said please VRIng in a live interpreter again, and they said that the hospital will not be paying for a live interpreter, so that I had to use the VRI, and I was continuously fighting for that, that an interpreter in person would be there.” (ECF No. 47-1 at 11.) Asked how she knew this, she explained, “The nursing staff told my mother, and my mom interpreted to me and let me know that.” (ECF No. 47-1 at 11.) Although Juech characterizes her mother as interpreting what the nursing staff said, she acknowledges that the statement was made to her mother, not to her. But the court was not presented with any testimony from Juech or her mother as to whether her mother was actually interpreting—that is, relating verbatim something medical staff told Juech (which would not be hearsay)—or simply relaying to Juech what she heard, perhaps with her own inferences and characterizations, which would make the statement hearsay. And the fact that Juech’s mother is not fluent in sign language (ECF No. 47-1 at 18) certainly makes it less likely that the information Juech got from her mother was as a result of verbatim translation.” (Emphasis mine).
  18. Even if the hospital administration did require the use of VRI over an in person interpreter, that does not constitute deliberate indifference. Only if the hospital administrators were aware of the alleged problem with the VRI but demanded its use anyway could a reasonable finder of fact conclude that the defendants were deliberately indifferent, and the plaintiff did not present any evidence to support such a conclusion.
  19. No evidence exists that would allow a reasonable finder of fact to conclude that the staff members regarded the problems of anything other than isolated incidents.
  20. The simple failure to provide an interpreter on request is not necessarily deliberate indifference to an individual’s rights.
  21. With respect to standing, the fact that the plaintiff did return to Children’s Hospital during the pendency of the lawsuit tends to support plaintiff’s contention that she would return in the future. That said, even though there is a possibility based upon her past behavior that she will return to Children’s if her children need emergency medical care or hospitalization, that is not a sufficient real and immediate threat to give her standing for injunctive relief. No evidence existed that the plaintiff had any specific plans to return to Children’s Hospital emergency department or to have a child admitted to the hospital. That is, plaintiff offers only the barest speculation that she will have such a need.

III

Takeaways:

  1. This case cites to both Silva and to Liese, which we discussed here and here. However, it is not reasonable to believe that the District Court’s interpretation of these two cases is anything but a severe narrowing of the 11th Circuit decisions. Accordingly, if I am the plaintiff in this case, I would strongly consider an appeal. I realize that the Seventh Circuit of late has not been the friendliest jurisdiction for persons with disabilities. However, this decision severely narrows the 11th Circuit decisions making for a completely different legal parameter from what prevails in the 11th , which is definitely worth an appeal. Further, as I have mentioned numerous times before, the United States Supreme Court has been very sensitive to the rights of people with disabilities outside of the employment context and should the Seventh Circuit affirm this District Court decision, appealing to the United States Supreme Court may be worthwhile. If the Seventh Circuit were to affirm the District Court’s decision, a Circuit court split would exist even if the Seventh Circuit in its affirmance, assuming it is affirmed, paid lip service to the 11th Circuit decisions.
  2. This District Court decision severely limits Silva and Liese in at least two ways. First, Silva holds that the standard for effective communication is whether the culturally deaf individual was hindered in their communication, a fairly low standard. Second, Liese makes clear that deliberate indifference means something quite a bit different than the way someone usually thinks of the term. That is, was an individual in a position of authority do something about it but did not, also a fairly low standard. Again, if I am the plaintiff here, I would strongly consider an appeal.
  3. The problem with VRI is that you simply don’t know the qualifications of the interpreter you are getting. Depending upon the culturally deaf individual, the conveying of complex of medical information may be beyond the capabilities of the interpreter being seen through the VRI. One thing I learned in representing a culturally deaf individual is that it is absolutely critical to have a qualified interpreter present for many situations because the hearing world doesn’t always translate well to sign language. It is the job of that interpreter to break it down. As a preventive law matter, medical information is complex, and VRI should only be used as a last resort. Finally, a hearing person will not intuitively understand this, and so, a plaintiff may want to consider using an ASL expert to convey this to the judge and jury.
  4. The decision from this District Court makes it extremely difficult for a culturally deaf individual to get an in person interpreter when VRI is available.
  5. If you are representing a hospital and the patient says that it is okay for a family member to interpret for them, just say no. It’s a really bad idea and quite possibly in violation of the ADA’s final implementing regulations. If you are a culturally deaf individual needing medical services and you show up with a family member (after all, even hearing people show up with family members as hospitals), simply do not allow that family member to be interpreting for you with respect to any services provided by the medical provider or by the hospital.
  6. One of the underlying issues with this decision is that there needs to be more awareness among the hearing community just what ASL or sign language interpreters are actually doing when they do their job.
  7. I have read a lot of decisions about standing with respect to injunctive relief, and this particular decision takes a far narrower approach than many. That is worth an appeal as well.
  8. Finally, I note that this is a US magistrate judge decision and so it isn’t clear to me where the appeal lies. Does the appeal go to the Seventh Circuit or does it go to the judge to dismiss the magistrate’s recommendation? Perhaps, one of the litigators reading this blog entry can chime in on this. Regardless, this decision should be appealed either to the District Court judge or to the Seventh Circuit, whichever is applicable.
  9. Title III’s effective communication rule unlike title II’s effective communication rule, does not mandate preference be given to the person with a disability preferred style of communication.
  10. Especially if you are a plaintiff attorney, do not fall for ADA and the Rehabilitation Act being essentially the same so that one can be dismissed because the differences are quirky but can be critical (for examples, scope of coverage- with respect to title III- and causation- with respect to both title II and title III- are different between the two laws).

Finally, as I noted last time, my blog was nominated in the expert category for a best blog by the expert institute. Thanks to all who nominated me. You now have a chance to vote here for it to be a best blog. Also, I can’t say how much I appreciate the opportunity to be in ABA 100 blog for five years in a row. I’m very passionate about blogging on the ADA and related laws, and it’s great to see that it is making such a difference. I don’t plan on blogging week of Christmas or the week of New Year’s. Also, we have to have our greatest hits of 2018. I may have one blog before then.

Court System Accessibility Best Practices Checklist

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As readers of this blog know, I don’t usually blog more than once a week. However, I had a moment and a real cool idea already in the can so to speak, so here goes.

At least once a month, I get a call from someone around the country talking about how the court system is inaccessible. Usually, it is coming from a Family Court, but not exclusively so. Also, whether this State is red or blue doesn’t matter. I am proud to say that the State of Georgia has been busy working on these issues, and I have been doing what I can to help in a variety of ways, including, for example, volunteering to come up with a courtroom accessibility best practices checklist. I thought the readers of this blog would really appreciate it if I modified that list for our blog.

The following is a nonexclusive list of considerations for ensuring persons with disabilities have meaningful access per the ADA and §504 of the Rehabilitation Act (the latter may apply if federal funding is involved). Also, the list is not not exhaustive, and is also not a substitute for obtaining knowledgeable legal counsel on ADA matters as all of this can get really complicated as we know.

  1. Make sure judges and administrative staff receive quality training from ADA knowledgeable individuals. I have often wondered just who is providing the training when it comes to ADA compliance across all ADA titles. Typically, when there is an ADA dispute and it settles, training is a required part of the settlement. If the training is good, I don’t understand why these things keep happening. Training should also be regular. Further, you need to have an ADA/§504 knowledgeable person/attorney to help out with the complicated questions that arise.
  2. Have an ADA/§504 coordinator and an ADA/§504 grievance procedure. If the Rehabilitation Act applies, you need to have this if you have more than 15 employees. If only the ADA applies, you need to have it if you have more than 50 employees. Regardless, having both is excellent preventive law.
  3. Don’t be afraid to get help from knowledgeable ADA counsel as ADA and §504 are extremely complicated. Also, don’t be afraid to bring in outside experts or ask for briefing. Check your State for the judicial rules in this area. For example, Georgia allows a court to bring in an outside expert to help sort things out providing all the parties are on notice as to why the expert is being brought in and what the expert will do. Your State may have similar rules.
  4. The interactive process is critical. Remember, one size does not fit all. The ADA focuses on an individualized analysis.
  5. Judges and all personnel should know the definition of a disability as amended by the ADA Amendments Act. The bottom line is that after the amendments it’s going to be really difficult to find that a person does not have a disability.
  6. Make sure judges and all personnel are familiar with the federal regulations on service dogs and effective communication. With respect to service dogs, keep in mind, that it is entirely possible that your State laws on service dogs fall below the standard set by the DOJ in their final implementing title II and title III ADA regulations. With respect to effective communication, I really like this guidance, which we discussed in this blog entry. I realize that the guidance is not applicable to the court system, but it is so good that it should be useful in this context.
  7. With respect to effective communication pertaining to court access, remember primary consideration must be given to the individual’s preferred mode of communicating because courts are public entities.
  8. Make sure all requests for modifications are handled timely and with respect. If requesting documentation, make sure that documentation is narrowly focused and not excessive.
  9. Don’t charge a person with a disability for any accommodations/modifications.
  10. Read Silva v. Baptist Health South, Florida, 856 F.3d 824 (11th 2017). I have not blogged on this case. That said, I did co-counsel with an attorney here in Atlanta on an effective communication case involving a doctor and a hospital that did not provide an ASL interpreter for culturally deaf, Deaf, individuals. This case is a real game changer for the culturally deaf. It says that effective communication does not occur under the Rehabilitation Act if the communication hinders the culturally deaf individual’s understanding of what is being said. Silva took place in the medical context, but its reasoning easily transfers to the legal arena.
  11. Remember reasonable accommodations/modifications are whatever gets the person with disability to the same starting line as a person without a disability. Reasonable accommodations/modifications must be done unless there is an undue burden or a fundamental alteration, both of which, as we know, are terms of art and are very difficult standards to meet.
  12. Perform a self-evaluation plan. This plan should have been completed in 1992. If not done already, get one done.
  13. Develop a transition plan to resolve issues arising from the self-evaluation plan.
  14. Make sure people are aware of how to request accommodations.
  15. Is the court’s website meaningfully accessible per the ADA (WCAG 2.0 AA is the gold standard), for persons with disabilities. Pay particular attention to screen readers, voice dictation, and captioning of audio. Also, keep in mind that a website may be accessible for voice dictation users but not for screen readers and vice a versa.
  16. Establish specific flexible procedures to address reasonable accommodation/modification request and to meet recurring accessibility needs. That is, do have procedures, but make sure they are flexible enough to deal with every situation being entirely different.
  17. Your State may have a judicial handbook for courtroom accessibility. Georgia has one, and it is excellent.
  18. For a resource, you can always look at this blog. I really love its search engine and use it all the time.

Next week, I explore once again just what is a service establishment. Without spoiling everything, let me say there is now a clear-cut Circuit Court split on the issue. In the meantime, you might want to review this blog entry.

Applicability of DOJ Service Dog Regulations to Rehabilitation Act Cases

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Today’s blog entry deals with the question of whether the DOJ final regulations on service dogs are applicable to a case arising under the Rehabilitation Act and not the ADA. The case is Berardelli v. Allied Services Institute of Rehabilitation Medicine, a published decision from the Third Circuit decided August 14, 2018. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and takeaways. The reader, of course, is free to read any or all of the sections. As a heads up, the court’s reasoning is quite detailed.

I

Facts

The facts are pretty egregious. What you have is an elementary school student with dyslexia and epilepsy where the school consistently turned away efforts for her to be accompanied by her service dog to school. The school was subject to title III of the ADA and the Rehabilitation Act but not title II of the ADA. As the child grew older and became more independent, her pediatric neurologist recommended that she obtain a service dog so that the dog could monitor her with respect to any seizures and take action when those seizures occurred. She was okay in second grade with the service dog, but when she switched in third grade to the dePaul school, which had a specialized program for dyslexic students, things went downhill fast even though her mother had served notice that a service dog would be coming to school. In the end, things got so bad that she had to repeat an earlier grade when she transferred to a public school some two years later. In particular, the things that happened included: 1) principal consistently denied the use of a service dog; 2) principal repeatedly denied, citing distraction to others, the use of a service dog even though it was made clear that the service dog would alert during seizures and also could predict and alert to them minutes before they even began; 3) principal denied use of service dog based upon worry about allergic reaction to others and made the dog wear a vest to prevent allergies. The vest overheated the dog and prevented the dog from doing his job; 4) when mother came with the child and the service dog to school, the principal stopped them at the entrance of the school and refused to allow the service dog to enter; and 5) the resistance to the dog continued even when a teacher furnished the principal an article on what seizure alert dogs do, and the family of the student allergic to dogs said that they would get their child allergy shots rather than deny a service dog for a child that needs it. Of course, all this made for an impossible situation for the child since it created a great deal of stress and anxiety and it also caused her to fall behind her peers by a year when she transferred back to public schools.

At trial, the District Court proceeded as if the DOJ service regulations applied to a Rehabilitation Act matter, but in midstream reversed course and said that the DOJ regulations did not apply. Further, it rejected a proposed jury instruction tracking DOJ regulations on service dogs. Instead, the jury instruction it wound up giving instructed the jury that:

To prevail on a claim for failure to accommodate, the plaintiff had to prove by a preponderance of the evidence that the requested accommodation was reasonable. If further defined that term as meaning necessary to avoid discrimination on the basis of disability or, in other words, necessary to permit meaningful participation. Only if the plaintiff prove the accommodation was necessary to avoid discrimination on the basis of disability, the burden then shift the school to prove by a preponderance of the evidence that the requested accommodation were unreasonable.

Understandably, this jury instruction really confused the jurors (I can’t understand it either), but when the jury sought clarification, the court refused to clarify. The jury returned a verdict for the school, and the child’s parent timely appealed seeking reversal of their State law claim as well as a new trial on the Rehabilitation Act claim because the District Court did not properly instruct the jury on the applicable law.

II

Court’s Reasoning Reversing the State Law Claim and Awarding a New Trial

  1. Since substantive standards for liability under the Rehabilitation Act and the ADA are the same, the service animal regulations interpreting reasonable modifications under the ADA apply equally to reasonable accommodations under the Rehabilitation Act.
  2. The Rehabilitation Act was the first broad federal statute aimed at eradicating discrimination against individuals with disabilities.
  3. §504 of the Rehabilitation Act established that no otherwise qualified individual with a disability shall solely by reason of his or her disability be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance. The Supreme Court has interpreted this to mean that an individual with a disability must be provided with meaningful access and that federally funded programs were required to make reasonable accommodations or reasonable modifications, but not fundamental or substantial one when necessary to assure such meaningful access.
  4. After two decades of experience with the Rehabilitation Act, Congress acknowledged the limited extent of its coverage impeded its effectiveness in eliminating disability discrimination and enacted the ADA.
  5. Congress designed the ADA to fit hand in glove with the Rehabilitation Act leaving intact the scope of protection under the Rehabilitation Act, but extending its reach beyond federally funded programs to three major areas of public life [i.e. title I, II, and III of the ADA].
  6. The most far-reaching portion of the ADA was extending the Rehabilitation Act concepts to places of public accommodations as title III prohibit discrimination on the basis of the disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.
  7. Title III of the ADA also codified the concept of reasonable accommodations recognized by the Supreme Court when interpreting the Rehabilitation Act when it adopted 42 U.S.C. §12182(b)(2)(A)(ii). That particular provision says discrimination occurs when there is a failure to make reasonable modifications in policies, practices or procedures where such modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodation to individuals with disabilities unless a fundamental alteration exists.
  8. While title III and title II of the ADA the use term “reasonable modification,” and title I uses the term “reasonable accommodation,” it is pretty clear that the two terms are interchangeable.
  9. Both the Rehabilitation Act and the ADA recognize that disabilities do not diminish the right to full inclusion in American society. Both statutes also target the same critical areas, including education. Finally, history teaches that both statutes aim to root out disability-based discrimination thereby enabling a person with a disability to participate equally to all others.
  10. As a general rule, repetition of the same language in a new statute indicates the intent to incorporate those provisions and the judicial interpretations of that language as well. Case law interpreting the Rehabilitation Act have used the terms reasonable accommodations and reasonable modifications interchangeably.
  11. Although the Rehabilitation Act and the ADA diverge with respect to the entities they cover and the remedy they provide (I might add they diverge on causation as well), they impose the same substantive liability standards, and therefore, require a unified approach to the reasonableness of accommodations and modifications.
  12. Case law invariably says that the Rehabilitation Act and the ADA are to be interpreted in the same way.
  13. The Third Circuit has assumed that the term reasonable accommodations and reasonable modifications are synonymous. For that matter, the Supreme Court has done the same. Finally, other Courts of Appeals have also recognized that while title III of the ADA uses “reasonable modification,” rather than “reasonable accommodations,” the term did not differ in the standards they create.
  14. The reasonableness of an accommodation or modification is the same under Rehabilitation Act as it is under the ADA. Therefore, while the Rehabilitation Act does not explicitly resolve whether accommodating the use of service animals by individuals with disability is generally reasonable, it is appropriate to consider the DOJ regulations and guidance applicable to the ADA’s reasonable modification requirements when answering that question.
  15. Citing to a case that we discussed in this blog entry, the court said that the service animal regulations are consistent with and a specific application of the reasonable modification requirement of the ADA. More specifically, those regulations present DOJ’s holistic view in enforcing the ADA when it is reasonable and unreasonable to require accommodating service animals.
  16. Defendants do not always have to allow service animals if to do so would fundamentally alter the nature of the program, pose a direct threat to the health or safety of others, or if the animal is either out of control or not housebroken. Further, in a footnote, the court notes that service animal under 28 C.F.R. §§104, 36.104 has a very precise definition namely, any dog individually trained to do work or perform tasks for the benefit of an individual with a disability.
  17. Under the DOJ final regulations on service dogs, a person with a disability proposed accommodation of her service animal is reasonable as a matter of law in the absence of direct threat, fundamental alteration, dog out of control, or the dog is not housebroken.
  18. The DOJ regulations are entitled to Chevron deference.
  19. The DOJ interpretation of its regulations must be deferred to as well because such an interpretation is not plainly erroneous or inconsistent with the regulation.
  20. The DOJ regulations on service dogs fulfill Congress’s intent to provide the broadest feasible access to service animals in all places of public accommodations, with few exceptions.
  21. Considering all of the above, logic dictates that the service animal regulations are no less relevant to the interpretation of the Rehabilitation Act even though they technically are only interpreting the ADA. Accordingly, where no exception for the allowance of a service dog applies per the applicable DOJ regulations, the use of a service animal by a person with a disability is per se reasonable.
  22. Numerous agencies have indicated in one form or another that a person’s request to be accompanied by a service animal is generally reasonable.
  23. HUD has even indicated that the Rehabilitation Act might go even further than the ADA when it comes to service animals. As we have discussed previously, HUD has interpreted the Fair Housing Act as going further than the ADA.
  24. While responsibility for administering the Rehabilitation Act was not delegated to a single agency, the body of work of the agencies implementing the Rehabilitation Act does constitute a body of work that courts and litigants can resort to for guidance.
  25. Congress has given no indication that service animals should be less accommodated in the school setting then in another setting covered by the Rehabilitation Act or the ADA. In fact, the Rehabilitation Act specifically notes that individuals with disability continually to encounter discrimination in education. Further, the Rehabilitation Act at 29 U.S.C. §701 has an integration and inclusion requirement built into it.
  26. Claims alleging failure to accommodate under the Rehabilitation Act involve the same inquiry as those alleging failure to accommodate under the ADA, namely: 1) was the requested accommodation reasonable?; 2) Whether the requested accommodation was necessary; and 3) would the requested accommodation fundamentally alter the nature of the program?
  27. The jury instructions were flawed for two reasons. First, the accommodations were reasonable as a matter of law in light of the facts as applied to the DOJ final implementing regulations. Second, the jury instructions confused the reasonable accommodation with the separate requirement that the accommodation be necessary. Accordingly, the jury wasn’t instructed properly.
  28. Compelling evidence existed that the dog accompanying the child was indeed necessary for providing meaningful access to the school’s programs and activities.
  29. The alternatives offered by the school simply did not cut the mustard (the court uses the term, “woefully short.)” In particular, the child was subjected to additional safety risk, increased anxiety leading to more seizures, and a gaping educational deficit causing her to regress to a prior year when she transferred to a public school. Further, forcing the dog to wear a vest prevented the dog from doing the job it was supposed to do.
  30. The facts and the law are such that a reasonable jury would award a verdict for the plaintiff.
  31. In a footnote, the court notes that where a trial judge rules early in litigation that a rule of law applies to the facts and that ruling shape the course of the trial and strategy, but then the judge reverses course, the parties may be prejudiced under a doctrine called law of the case.
  32. Dismissing the state law claim was improper because while the liability standards for the Pennsylvania Human Rights Act and the ADA are the same, the remedies are not. More specifically, the Pennsylvania Human Rights Act expressly permits damages. Further, the Pennsylvania Human Rights Act specifically has a provision that prohibits places of public accommodation from denying any person the use of a guide or support animal in order to access accommodations, advantages, facilities, or privileges of a place of public accommodations. Accordingly, the dismissal of the Pennsylvania Human Rights Act claim has to be reversed.

III

Takeaways

  1. Absolutely mind-boggling to me the efforts that the mom went through to get the school to do the right thing. Few people would have stayed with it that long. Curious, as to why the board of the school was never contacted. At least, nothing in the opinion indicates as much.
  2. Also, mind-boggling to me is the school’s behavior with respect to service dogs. Certainly, not good preventive law at all. I can only imagine how much money was spent on the defense in this case and the appeal only to see it all go up in smoke. Further, liability is certain as is damages. So, the defense is going to have to pay for its attorneys fees, plaintiffs attorneys fees, and whatever damages are awarded. Hard to believe this case won’t settle for a substantial sum and a substantial award of attorney’s fees.
  3. The court’s reasoning is exhaustive. Hard to argue that the Rehabilitation Act and the ADA should not be interpreted in the same way.
  4. I find it interesting that the Administrative Procedure Act did not come up. Ordinarily, the way that it works is that the agency responsible for implementing the regulations goes through a rule making effort. Once that effort has been completed, those regulations become final and are binding upon the courts. So, each agency could through the rulemaking system have its own spin on service dogs. The problem here is, as the court noted, the Rehabilitation Act does not designate a single agency for carrying out the law. That is not the case with the ADA (it’s either the EEOC or the DOJ). The lack of a single agency being given implementing authority may be another reason why the DOJ regulations could be imposed upon the Rehabilitation Act.
  5. Considering the United States Supreme Court decision in the case we discussed here with respect to service dogs, I don’t see how an appeal by the school to the Supreme Court will be successful.
  6. The decision is published and is thereby likely to be cited frequently around the country.
  7. The DOJ service dog implementing regulations are entitled to deference. That shouldn’t surprise readers of this blog as we discussed that issue many moons ago here.
  8. One does not have to look further than this case to realize that jury instructions are a big deal.
  9. Who is educating the judges? I had the privilege of doing an education training session on service dogs and effective communication to municipal judges in Georgia. This case does raise the issue that District Court judges when they are getting trained should revisit the ADA as part of that training. It would make a difference with respect to service dog issues as well as accommodating people with disabilities in the court system generally (the latter issue we discussed previously in our blog, such as here).
  10. Schools need to be aware that the world does not end with IDEA, but rather they have to consider the ADA and the Rehabilitation Act as well.
  11. While title III of the ADA does not contain a right to damages, applicable state law might. Further, applicable state law may have a much lower threshold for coverage than the ADA does.
  12. What this case says is that interpretation differences between the Rehabilitation Act and the ADA are going to be few and far between, if ever. The biggest difference out there now is that causation and damages (damages would be different if a title III matter was involved), are different between the two laws.