§504

National Association of the Deaf v. Harvard Redux

April 15, 2019 by William Goren Leave a Comment

In a previous blog entry, I discussed the case of the National Association of the Deaf v. Harvard University. That particular blog entry talked about the magistrate judge denying Harvard’s motion to dismiss. Subsequently, Harvard filed a motion for judgment on the pleadings. On March 28, 2019, the magistrate judge, Katherine Robertson, denied and granted Harvard’s motion for judgment on the pleadings. Since the facts of the case have already been discussed in my previous blog entry, we don’t have to worry about that particular category. So, the blog entry is divided into three categories and they are: court’s reasoning ADA; court’s reasoning Communications Decency Act (CDA) Immunity; and takeaways. The reader, of course, free to focus on any or all of the categories.

Court’s Reasoning ADA

As a preliminary matter, the primary difference between a motion for judgment on the pleadings and a motion to dismiss is that a motion for judgment on the pleadings implicates the pleadings as a whole. Such motions are treated similarly as to a motion to dismiss. Accordingly, the court views the facts contained in the pleading in the light most favorable to the nonmoving party and has to draw all reasonable inferences in favor of the nonmoving party. Judgment on the pleadings is only allowed where the facts conclusively establish that the movant is entitled to the relief sought.
The court goes into considerable detail over whether a place of public accommodation under title III of the ADA has to be a physical place. Ultimately, it concludes that the court has no choice but to follow the controlling law in its Circuit, which holds that a physical place is not necessary per Carparts Distribution Center, Inc. v. Automated Wholesaler’s Association of New England, Inc., 37 F.3d 12 (1^st 1994).
Regardless of whether or not the Supreme Court ultimately makes the decision that a physical place is required for an entity to be subject to title III of the ADA, the magistrate found that a sufficient nexus between a physical place and the plaintiff existed in this case anyway. In particular: 1) Harvard operates a brick and mortar location; 2) the online content Harvard makes available to the general public but does not make accessible to the deaf and hard of hearing community includes Harvard@Home Presentations, which are designed to bring users inside the Harvard classroom to hear current, real-life lectures or provide them with a front row seat to University panels, alumni college forums, and other special events; 3) Harvard through its extension school offers free, noncredit courses; and 4) videos with spoken content appear in the archives of Harvard’s Peabody Museum of Art and Ethnology, Harvard’s Natural History Museum, the Institute of Politics John F. Kennedy Junior forum, Harvard’s Lifesciences Outreach program, and Harvard’s Woodberry Poetry Room. Since it can be inferred that all of this online content is the same as a good or service that is, or was, also available at one or more of the physical locations at Harvard, plaintiffs have sufficiently pled the existence of inaccessible content on websites having a nexus with on-campus activities. So, when it comes to the applicability of title III, title III is applicable regardless of whether a nexus to a place of physical accommodation is required or not.
DOJ regulations do not limit a public accommodation’s obligations as to online content that it chooses to host on its websites and platforms. That said, Harvard possibly could be able to demonstrate that providing captioning, or any other available auxiliary aid or service, fundamentally alters the nature of its service or results in an undue burden.
504 regulations prohibit a recipient of federal aid from discriminating in the providing any aid, benefit or service to a person with a disability directly or through contractual, licensing, or other arrangements. 34 C.F.R. §104.4(b)(1)(i)-(vii). Also, there is no persuasive support for limiting the general prohibition against discrimination in the provision of aids, services, and benefits to persons with disabilities under §504.
With respect to Harvard’s internet site containing content posted on third-party websites, that becomes a matter of Harvard showing whether the fundamental alteration or undue burden affirmative defense applies. That requires a factual record to be developed.

Court’s Reasoning Communication Decency Act of 1996 Immunity (47 U.S.C. §230)

47 U.S.C. §230(c)(1) (§230 of the Communication Decency Act) provides protections for a “Good Samaritan,” that blocks and screens offensive materials. In particular, it says that, “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
The effect of 47 U.S.C. §230(c)(1) is that lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions-such as deciding whether to publish, withdraw, postpone or alter content- are prohibited.
The CDA defines an interactive computer service as, “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including… systems operated or services offered by libraries or educational institution.” 47 U.S.C. §230(f)(2).
The CDA defines an information content provider as, “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service. 47 U.S.C. §230(f)(3).
The immunity under this section only applies when the information forming the basis of the claim has been provided by another information content provider. That is, an interactive computer service provider is liable for its own speech.
Near universal agreement exists that §230 must be construed liberally. Therefore, the section operates to prohibit many causes of action premised on the publication or speaking of information content.
No authority exists holding the title II of the Civil Rights Act of 1964 provides an exception to the immunity afforded by the CDA.
In order to be covered by the immunity provision of the CDA, three things have to be shown: 1) Harvard must be a provider or user of an interactive computer service; 2) the claim of the plaintiffs have to be based upon information provided by another information content provider; and 3) the claim must treat Harvard as the publisher or speaker of that information.
No support exists for plaintiff’s claims that the CDA does not apply when a plaintiff claims disability discrimination is based upon a lack of access rather than on the content of speech.
Federal and state antidiscrimination statutes, see 47 U.S.C. §230(e), are not exempted from the immunity provided by the CDA.
Citing to a case from the Seventh Circuit, the court noted that the Seventh Circuit held that §230 operated to preclude Fair Housing Act claims. Citing to a case from the First Circuit, the court noted that the CDA operated to preclude a claim under the Trafficking Victims Protection Reauthorization Act of 2008.
Since Harvard acknowledges that it hosts platforms to which online content may be uploaded, it isn’t absurd to treat Harvard as an interactive computer service.
Since Harvard, to some extent, provides platforms in which third parties post content that Harvard does not create, produce or substantively alter, Harvard is hosting information provided by another Internet content provider.
Since numerous cases include educational institutions in the CDA’s definition of Internet computer services providers, that means that Harvard gets a get out of jail free card with respect to the inaccessibility of online content created or developed by a third party that is not altered by Harvard.
The CDA relieves interactive computer service providers from liability whenever they exercise control, such as blocking and screening of third-party content.
Harvard’s choices about what third-party content can appear on its website and in what form, are editorial choices falling within traditional publisher function protected by §230.
While §230 immunity is an affirmative defense, a motion to dismiss still works if the dismissal is evident from the face of the complaint.
The court at this point is unable to determine as a matter of law whether Harvard is not in some matter a content provider at the information on its platforms originating with student, faculty members, or other scholars.
Harvard does get a get out of jail free card with respect to inaccessible content that is merely embedded online content (i.e. content hosted on a third-party server that is hyperlinked in its existing form content that is hosted on a harbor platform or website), produced or created by Harvard because Harvard remains a publisher under the communication decency act as to embedded content.
Would you like to be confused? Try understanding this paragraph: “Where Harvard or someone associated with Harvard is embedding a third party’s content that Harvard or someone associated with Harvard did not create or develop in whole or in part-in other words, publishing a third party’s content-Harvard is entitled to CDA immunity and to judgment on the pleadings.”

III

Takeaways

The court properly notes that when it comes to whether title III of the ADA only applies to places of public accommodation that are physical spaces, is something that is very much a debate. We have discussed the issue on our blog numerous times. As I discussed in this blog entry, it is very possible that when the Supreme Court ultimately get to this issue, they will hold that a physical place is not necessary.
It probably would not be all that hard to find a nexus to a physical place with respect to online content appearing on a university’s website since colleges and universities are places of education. As a place of education, disseminating information is a critical part of what they do on their brick-and-mortar campus.
This case is another example of how §504 and the ADA are not always identical. Sometimes, §504 goes further than the ADA. Sometimes, it works the other way around.
One of the reasons I enjoy practicing in the area of the rights of people with disabilities, is that it interacts with all kinds of laws. You would not think of the CDA and disability accessibility going together, but in this case, it does. It also means that practicing in this area can be a bit daunting because you never know where a related law is going to come from.
47 U.S.C. §230 provides for broad immunity. After this decision, look for colleges and universities in particular that are being sued for inaccessibility of their web content to rely on this case as a matter of course. In fact, it will probably be legal malpractice for colleges and universities not to do so.
It is really unclear just how far the immunity goes. For example, I link to things all the time when I do my blog. However, ¶ 20 above, where the court stated: “Where Harvard or someone associated with Harvard is embedding a third party’s content that Harvard or someone associated with Harvard did not create or develop in whole or in part-in other words, publishing a third party’s content-Harvard is entitled to CDA immunity and to judgment on the pleadings,” is really unclear. The reason this paragraph is so confusing is that most certainly students and faculty will put things up with links. Those links are not college or university’s responsibility under this decision. Does the answer change with respect to anything the college or university posts as a result of a license that it has? Does the answer change with respect to anything it puts up through the fair use doctrine? What if there is content beyond the link posted on Harvard’s site? It seems from ¶ I 6 above that Harvard is on the hook for that inaccessibility absent a showing of fundamental alteration or undue burden. However, it also seems per ¶ II 14, it may or may not have immunity for such claims.

Title III Religious Exemption Affirmative Defense

March 18, 2019 by William Goren Leave a Comment

I promised Jon Hyman of the Ohio Employer’s Law Blog that I would hold down the fort with respect to blogging while he and his family jetted off to Italy for vacation. So, here goes. Today’s case, Reed v. Columbia St. Mary’s Hospital, comes out of the Seventh Circuit, and was decided on February 8, 2019. It is notable in a couple of respects. First, of late, the Seventh Circuit has not been kind to persons with disabilities at all. Second, the case goes into quite a bit of detail discussing the religious exemption to title III of the ADA, which simply doesn’t get a lot of litigation associated with it usually. Finally, it also discusses affirmative defenses and what happens if they are not laid out when they are supposed to be laid out. As usual, the blog entry is divided into categories, and they are: 1) Facts; 2) court’s reasoning discussing affirmative defenses generally; 3) court’s reasoning finding District Court abused its discretion by allowing religious exemption defense; 4) court’s reasoning reversing summary judgment on the Rehabilitation Act claims and failure to accommodate claims; and 5) takeaways. Of course, the reader is free to concentrate on any or all of the categories.

Facts

Plaintiff alleged that the hospital failed to accommodate her disability by deliberately withholding from her a device needed for her to speak and discriminated against her by putting her in the seclusion room to punish her. Defendant responded with answers to both the complaint and the amended complaint that at no time raised the religious exemption. In granting summary judgment for the defendant, the District Court held that the hospital did not have to comply with title III of the ADA because of the religious exemption in 42 U.S.C. §12187. It also dismissed plaintiff’s Rehabilitation Act claim finding that the discrimination alleged was not premised solely on her disability.

Court’s Reasoning Discussing Affirmative Defenses Generally

42 U.S.C. §12187 specifically exempts from title III coverage both “religious organization,” and, “entities controlled by religious organization, including places of worship.”
The religious exemption in title III is an affirmative defense because it assumes the plaintiff can prove everything in order to establish her claim, but still loses because of the affirmative defense.
It makes perfect sense for a defendant claiming the title III religious exemption to bear the burden of pleading and proof with respect to its religious control. After all, the facts are ordinarily within the knowledge and control of the defendant.
A defendant’s failure to plead an affirmative defense can result in either a waiver of the defense if the defendant has relinquished it knowingly and intelligently, or it can result in a forfeiture of the defense if the defendant failed to preserve the defense by not pleading it.
The purpose of the pleading requirement for an affirmative defense is to avoid surprise and undue prejudice to the plaintiff by providing for notice and the opportunity to demonstrate why the defense should not prevail.
A defendant remains obligated to act in a timely fashion when it comes to affirmative defenses. Once the availability of an affirmative defense is reasonably apparent, the defendant has the obligation to alert the parties and the court of his intent to pursue that defense. A defendant cannot be permitted to lie behind a log and ambush a plaintiff with an unexpected defense. In that situation, the appropriate thing for a defendant to do is to promptly seek the court’s leave to amend the answer. Failure to do that, risks a finding the defense has been waived.
Many efficiencies are lost when claims or defenses are left out pleadings and a party then attempts to assert them at later stages.
It is the same set of problems that occur when plaintiffs try to raise new theories or claims for the first time when opposing summary judgment. The concerns about unfair surprise and prejudice with non-pleaded affirmative defenses are similar. That is, late assertions of affirmative defenses, including the title III religious exemption defense, make litigation more costly and difficult. It also makes it unfairly difficult for plaintiff to pursue her claims.
The title III religious exemption is based on facts in the defendant’s control and clearly falls within the category of affirmative defenses that must be pleaded.
The fact that a witness possibly alluded to a religious exemption defense being possible, doesn’t mean that the plaintiff was on fair notice that the religious exemption defense was in play. The statement made by the witness is not comparable to a lawyer’s statement that the party intends to assert a defense. The statements by the witness in her deposition did not put the plaintiff on fair notice that the hospital would be asserting the religious exemption and that the plaintiff was going to have to spend the time and money to conduct extensive discovery on whether the hospital can satisfy the ADA’s religious exemption.
The fact that plaintiff knew when she filed the suit that the hospital was at least nominally associated with the Catholic faith is of no help to defendant either. Nominal association tells a plaintiff nothing about the availability of the religious exemption because the statutory test is the control exercised by the religious organization. After all, all kinds of entities have names associated with religions but are not subject to religious control.
With respect to the facts of this case, it turns out that the hospital had two lines of control (Catholic and non-sectarian).

III

Court’s Reasoning Finding District Court’s Abused Its Discretion in Allowing the Religious Exemption Defense

The hospital offered no excuse or explanation for failing to plead the defense in its answers or for raising the defense so late.
Absent a credible excuse for the delay, the hospital’s late invocation of the defense looks like a straight ambush of the plaintiff when it was too late for the plaintiff to put together a comprehensive rebuttal.
The religious exemption defense ordinarily depends on facts within the knowledge and control of the defendant.
The defendant did not deploy this defense until after discovery had closed. That means both parties had already invested a good deal of time and money in the case on the legitimate expectation they knew what the issues were.
Allowing a last-minute defense introduces new factual and legal issues after discovery has closed, adds to the cost of litigation, and allows the party that was at least negligent in failing to plead the defense to take unfair advantage of the opposing party.
The District Court’s rationale for allowing the defense to be used so late doesn’t hold up. Here, a few relevant facts to the affirmative defense came up briefly in one deposition, but that cannot be reasonably treated as fair notice that the hospital would actually assert the defense thereby causing the plaintiff to have to spend time and money needed to meet that defense. Accordingly, the plaintiff was entitled to rely on Federal Rules of Civil Procedure 8(c) requiring affirmative defenses to be pleaded in answers.
It was not the plaintiff’s obligation to raise the defense.
If Rule 8(c) is not to become meaningless, attempts to invoke defenses at the 11^th hour, without excuse and without adequate notice to the plaintiff, cannot be tolerated.
The prejudice to the plaintiff from the delayed assertion of the defense is especially problematic here because the relevant law and the facts are not clear.
The ADA does not define what it means to be a religious organization or to be controlled by a religious organization. Further, no federal appellate court has yet analyzed this religious exemption.
With respect to the District Courts analyzing the religious exemption, the issue is very complex on a factual and legal level. What the courts have done is look at the Department of Justice interpretation of its rules in 28 C.F.R. part 36 to try and figure things out. That interpretation says the religious exemption test is a factual one. That is, the focus is on whether the church or other religious organization controls the operations of the school or of the service. That test also focuses on whether the church or religious organization operates the place of public accommodation and not upon the individuals receiving the services of that public accommodation.
Here, the religious exemption defense means assessing a whole bunch of facts that are very much in dispute and need to be explored in some depth. Before summary judgment briefing, the plaintiff had no notice that she needed to prepare to meet that defense.
Where a defendant offers no credible excuse for delay, the normal rule is forfeiture of non-pleaded defenses.
Any reopening of discovery would impose additional delay on the plaintiff, and there are no mitigating factors favoring anything other than treating the defense as forfeited.

Court’s Reasoning Reversing the District Court’s Granting of Summary Judgment on the Rehabilitation Act Claim and on the Failure to Accommodate Claim

Making out a prima facie case for violation of §504 of the Rehabilitation Act involves showing: 1) the plaintiff is a handicapped individual; 2) the plaintiff is otherwise qualified for participation in the program; 3) the program receives federal financial assistance; and 4) the plaintiff must have been denied the benefits of the program solely because of his or her handicap.
The ADA and the Rehabilitation Act are very close to each other in their substance, but the Rehabilitation Act prohibit discrimination only if it is solely by reason of a person’s disability. Whereas, the ADA permits mixed motive claims.
While the Rehabilitation Act does not contain an explicit accommodation requirement, the United States Supreme Court has found a duty to accommodate in the statute generally.
A review of the facts shows that a jury could find that nothing the plaintiff conceded happened would have justifiably led to the hospital taking her to the seclusion room. That is, the material facts leading to the plaintiff being placed in seclusion are very much in dispute. So much so, that a reasonable jury could find that the hospital intentionally discriminated against the plaintiff solely on the basis of her disability.
The court also reversed the summary judgment with respect to the plaintiff’s reasonable accommodation claim finding that the hospital had not argued that the decisions it made were done in the exercise of professional judgment to treat plaintiff’s mental illness.

Takeaways

Religious exemption is an affirmative defense. Make sure you plead it in the answer. Failure to do so will likely result in forfeiture of the defense.
Remains to be seen whether the hospital might pursue a malpractice action against its attorneys. After all, it’s possible had the religious exemption defense have been alleged in its answer, the hospital would have gotten a get out of jail free card. Also, the court actually uses the term “negligence,” when discussing the failure to plead an affirmative defense.
If during the course of discovery, it becomes clear to the defense that the religious exemption is in play, be sure to seek leave from the court to amend your answer.
It is entirely possible that a defendant may be aware of the religious exemption defense but for a variety of reasons elects not to pursue it.
Religious exemption affirmative defense claims are very complex factually and legally. The legal complexity may be about to get a whole lot worse with the expected decision from the United States Supreme Court in Kisor (oral argument on that case will take place next week, but the result- getting rid of Auer deference-, is a foregone conclusion, though I could be wrong).
For the religious exemption to apply, nominal association with the religious entity is not going to work.
The religious exemption focuses on the control exercised by the religious organization and not upon the people receiving the services.
The court uses the term “handicapped,” which is a term very much out-of-favor and has been for some time. The better language to use is a person with a disability. 29 U.S.C. §794 (§504 of the Rehabilitation Act), does use the term disability.
The Seventh Circuit acknowledges that causation is different between Rehabilitation Act cases and ADA cases. That causation is different between the Rehabilitation Act and the ADA is something readers of this blog have known for a long time, see here, but it is significant that a Court of Appeals is saying as much.
Prevailing on a religious exemption affirmative defense at the summary judgment stage is going to be very difficult after this case.
In case you are wondering why your place of worship (it is a real problem in the Jewish faith from what I have read), is not accessible to a person with a disability, this blog entry gives you your answer.

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

November 30, 2018 by William Goren 2 Comments

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 11^th Circuit even if it is paying lip service to the 11^th 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.

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.)

Court’s Reasoning

The court notes that a hospital is a place of public accommodation under 42 U.S.C. §12181(7)(F).
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).
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.
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.
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.
28 C.F.R. §36.303(f) allows a place of public accommodation to use VRI services under certain circumstances.
Rules for the Rehabilitation Act are very similar to the rules for the ADA.
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.
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.
VRI is an acceptable auxiliary aid even in a medical context and written communication may be acceptable, especially for routine matters.
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.
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.
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.
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.
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.
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.
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).
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.
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.
The simple failure to provide an interpreter on request is not necessarily deliberate indifference to an individual’s rights.
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:

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 11^th 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 11^th Circuit decisions making for a completely different legal parameter from what prevails in the 11^th , 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 11^th Circuit decisions.
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.
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.
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.
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.
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.
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.
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.
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.
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.

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