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The Blog of William D. Goren, J.D. LL.M.

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29 U.S.C. §794(a)

DOJ can enforce title II of the ADA for now

September 20, 2019 by William Goren 1 Comment

Next week, my daughter is on break. She has one of those schedules where they are on for six weeks and then off for one week. They do get two weeks for winter vacation. So, since my schedule is likely to be all over the place next week, I thought I would do another blog this week since the 11th Circuit came down with a very important decision on September 17, 2019. Previously, we have blogged twice on the case, here. The case involved the question of whether the Department of Justice has any authority to enforce title II of the ADA. In a 2-1 decision a panel of the 11th Circuit says that it does. The person writing the decision (published), Judge Boggs, was sitting by designation from the Sixth Circuit. So, the actual judges on the 11th Circuit split1-1. That leads one to wonder whether Florida will not petition for an en banc rehearing and may very well get it. The actual decision is 66 pages long, but it can be condensed considerably for our purposes. The facts aren’t really important as what was at issue is whether DOJ has the ability to enforce title II of the ADA through a court action. As usual, the blog entry is divided into categories and they are: what it comes down to; title VI of the Civil Rights Act; §504 of the Rehabilitation Act; title II of the ADA; dissent by Judge Branch; and takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

What It All Comes down to

  1. The entire case turns upon how 29 U.S.C. §794a(a)(2) gets interpreted. More specifically, that statute provides: “the remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.) (and in subsection (e)(3) of §706 of such act (42 U.S.C. 2000e-5), apply to claims of discrimination in compensation) shall be available to any person (emphasis mine), aggrieved by any act or failure to act by any recipient of federal assistance or federal provider of such assistance under §794 of this title.
  2. The reason it comes down to the interpretation of the above paragraph is that through a series of interlocking cross-references starting with 42 U.S.C. §12133 remedies for violating title II of the ADA are linked to the remedies section for violating §504 of the Rehabilitation Act, which in turn links to title VI remedies of the Civil Rights Act.

II

Title VI of the Civil Rights Act

  1. The remedies for violating §504 of the Rehabilitation Act are tied into title VI of the Civil Rights Act.
  2. Where there is a violation of title VI of the Civil Rights Act, agencies enforcing the prohibition on discrimination can either terminate funding to the particular program violating the regulation or can take action by any other means authorized by law.
  3. Those feeling they have been subjected to discrimination in violation of title VI can file a written complaint. Upon receipt of that complaint, the Department is required to make a prompt investigation to determine whether recipient of federal funding has failed to comply with the antidiscrimination requirements. If that investigation demonstrates recipient is not in compliance, the Department must notify the recipient and attempt to resolve the matter by informal means if possible. Where informal means do not work, then the Department can take further action to induce compliance. Such action can include suspending, terminating, and refusing to grant or continue federal financial assistance, or “any other means authorized by law.”
  4. Over time, “by any other means” has been characterized by the Department of Justice as including appropriate proceedings brought by the Department to enforce any rights of the United States under any law of the United States. That action cannot be taken until it has been determined that it cannot secure voluntary compliance, the Atty. Gen. has approved the action, and the noncomplying party had been notified of its failure to comply and the action to be taken.
  5. 28 C.F.R. §50.3 talks about alternative courses of action and specifically states that compliance with the nondiscrimination mandate of title VI may often be obtained more promptly by appropriate court action than by hearings and termination of assistance.
  6. The phrase “any other means authorized by law,” shows that Congress intended to preserve other methods of enforcement, including the filing of suit. The court cites to various cases supporting that proposition.

III

§504 of the Rehabilitation Act

  1. Congress amended the Rehabilitation Act in 1974. Legislative history from that amendment reveals that Congress intended §504, 29 U.S.C. §794, to lead to an implementation of a compliance program similar to title VI of the Civil Rights Act.
  2. The Department of Health Education and Welfare procedures for carrying out the Rehabilitation Act were identical to those adopted by the DOJ in implementing title VI of the Civil Rights Act.
  3. In 1978, the Department of Justice’s regulations for enforcement of §504 of the Rehabilitation Act became the same as those promulgated by the Department of Health Education and Welfare.
  4. The enforcement scheme allows for both individual complaints and agency oversight leading to investigations ending with federal enforcement actions.
  5. The United States has brought suit to ensure compliance with the Rehabilitation Act after the relevant agency has received the complaint and investigated.
  6. Congress was fully aware of the administrative system when it passed the 1978 amendment to §504 and §505 of the Rehabilitation Act since those amendments codified existing administrative practice of using title VI procedures.

IV

Title II of the ADA

 

  1. Just because individuals have a private right of action, does not automatically lead to the conclusion that government enforcement is impermissible. Ensuring that public entities subject to federal statute comply with those statutes ultimately vindicates individual personal rights. However, that doesn’t mean Congress’s decision to enact the statutory scheme permitting governmental enforcement of title II should be ignored.
  2. 42 U.S.C. §12134(b) states that regulations implementing title II of the ADA have to be consistent and in coordination with regulation issued by the Department of Health, Education, and Welfare on January 13, 1978. This requirement leads to the conclusion that Congress intended the Atty. Gen.’s title II regulations to adopt Rehabilitation Act’s title VI type enforcement procedures because title II’s enforcement procedures use the Rehabilitation Act’s enforcement structure.
  3. DOJ regulations implementing title II of the ADA set up an administrative scheme similar to the ones available for the Rehabilitation Act and title VI of the Civil Rights Act.
  4. Congress expressly authorized the Atty. Gen. to make rules with the force of law interpreting and implementing title II of the ADA. Further, those regulations are reasonably related to the legislative purpose of the ADA and are consistent with the remedial structure Congress selected for title II. Accordingly, those regulations get deference as they are not arbitrary, capricious, or plainly contrary to the statute.
  5. Congress chose to use §505(a)(2) the Rehabilitation Act as the enforcement mechanism for title II of the ADA with full knowledge those provisions established administrative enforcement and oversight in accordance with title VI. They also knew that by adopting that provision they incorporated title VI’s “any other means authorized by law,” provision.
  6. If Congress intended to create a private right of action under title II as the only possibility for enforcement, then its decision to cross reference §505 of the Rehabilitation Act, 29 U.S.C. §794a, which expressly incorporates title VI, including its administrative enforcement scheme, would be mystifying, especially since Congress directed the Atty. Gen. to develop regulations consistent with the Rehabilitation Act enforcement procedures that included title VI enforcement.
  7. When Congress enacted title II of the ADA, it drew upon two other statutes creating remedies, rights, and procedures available for enforcement with the full knowledge of those other statutes. Those other statutes were enforceable by federal agencies through funding termination or “any other means authorized by law.” Congress then told the Atty. Gen. to make regulations implementing title II of the ADA that were consistent with a set of regulations tracing directly back to the regulations implementing title VI of the Civil Rights Act. Congress was quite clear that title V the Rehabilitation Act and its accompanying regulations must be construed as the minimum standard for the ADA. Congress knew that both title VI and the Rehabilitation Act had been enforced through DOJ litigation when it enacted the ADA, especially since §12133 ultimately relates back to “any other means authorized by law.”
  8. “Any other means authorized by law,” is a phrase courts have interpreted to permit referral to DOJ for further legal action.
  9. Legislative history is not against having both a private right of action and with allowing DOJ to pursue enforcement actions.
  10. Various courts have concluded that the Atty. Gen. has the power to enforce title II in federal court.
  11. Unlike the Rehabilitation Act, the ADA is not spending clause legislation. Accordingly, there is a broad scope of potential federal enforcement under title II of the ADA.
  12. Since title II enforcement provision cascades back to §602 of the Civil Rights Act authorizing the Atty. Gen. to enforce compliance of title VI of the Civil Rights Act by filing suit in federal court, the Atty. Gen. also can bring suit to enforce other statutes adhering to same enforcement scheme.
  13. States are public entities under title II of the ADA and are explicitly subject to suit by the United States for violation of title II of the ADA.
  14. States do not retain sovereign immunity from suits brought by the federal government.

V

Dissent by Judge Branch

  1. The dissent is much more simple in its approach. Basically, what it says is that the section of 42 U.S.C. §12133 talking about the remedies being available to any person alleging discrimination means that the Atty. Gen. has no title II enforcement authority because “any person,” modifies the prior language talking about the remedies.
  2. Everyone agrees that the Atty. Gen. is not a person for purposes of federal statutes.
  3. Title I and title III explicitly references federal enforcement powers while title II of the ADA does not.

VI

Takeaways

  1. Basically, the difference between the majority opinion and the dissenting opinion is that the majority opinion believes the title II remedy section creates an either or situation by referring back to a bunch of statutes and then subsequently referencing “a person,” later on in that same section. On the other hand, the dissenting opinion believes the “to any person,” language modifies the remedy section referenced earlier on in that same statute.
  2. The 11th Circuit Judges split 1-1 on this decision. So, look for an en banc rehearing petition in order for the full 11th Circuit to make a determination.
  3. This decision has a huge impact on accessing governmental entities. For now, the DOJ has title II enforcement powers. I can tell you that I get contacted by so many different people that simply can’t afford a private attorney. Also, many plaintiff firms are in essence mom-and-pop shops. It can be very useful to bring in DOJ as leverage when taking on governmental entities, especially since the standard for getting damages under title II of the ADA, which we have discussed here, is higher than what you see under title I of the ADA.
  4. I don’t know where the full 11th Circuit goes with this case if they grant an en banc rehearing. As I have said several times before, the 11th Circuit has become very progressive when it comes to the rights of people with disabilities. On a policy level, DOJ having title II enforcement authority makes a great deal of sense. However, the argument supporting that authority is a bit complicated and involves saying that a statute creates an either or situation. On the other hand, the dissenting argument is much more straightforward by saying “to any person,” modifies the rest of the statute. Also, in title I and title III, separate explicit statutory provisions exist for federal enforcement, which is not the case under title II.
  5. If the 11th Circuit grants a petition to rehear the case en banc, the time for the final decision will be down the road. Further, if the decision of the full 11th Circuit, assuming it decides to hear the case, supports DOJ enforcement of title II, I would look for an appeal to the United States Supreme Court. That would mean that the 2020 elections would become critical because regardless of what the United States Supreme Court says (this one could go either way), a Democratic Congress could amend the ADA so as to specifically include DOJ enforcement authority in title II of the ADA. Even assuming Congress remains split between the parties, with a Democratic president, assuming that happens, and it may not, and a Democratic House, it is possible that the ADA could be amended that way. Everything I am reading says that a takeover of the Senate by Democrats is extremely unlikely, but one never knows. Ground Zero will be right here in Georgia with two Senate seats up due to the resignation of Senator Isaacson.
  6. Maybe amending the ADA, especially if the Supreme Court decides in favor of DOJ title II enforcement, is a bad idea since HR 620, which we discussed here, would also get put in play.
  7. I have said many times that the ADA does not provide for individual liability. However, as noted by the 11th Circuit in the decision we are discussing in this entry, that isn’t the case in the 11th Circuit when it comes to retaliation as a result of this case.
  8. We have discussed sovereign immunity many times, but this case makes the important point that States do not get sovereign immunity from suits brought by the federal government.
  9. I wonder if DOJ will continue to advocate for it title II enforcement as this case proceeds or if it will switch sides. For those on the plaintiff side, it may be heartening to see that the Department of Education recently came up with a document supporting students with disabilities with respect to dual enrollment. Perhaps, that is a sign that the DOJ will stick to its position.

Filed Under: General Tagged With: §504, §505, §602, 11th circuit, 28 C.F.R. §50.3, 29 U.S.C. §794, 29 U.S.C. §794(a), 42 U.S.C. §12133, 42 U.S.C. §12134, ADA, ADA attorney, ADA compliance, ADA compliance attorney, ADA compliance expert witness, ADA consultant, ADA consulting, ADA consulting expert, ADA litigation consulting, administrative scheme, by any other means, C.V. v. Dudek, Civil Rights Act, Department of Health education and welfare, DOJ enforcement, DOJ title II enforcement, enforcement procedures, government enforcement, HR 620, private right of action, public entities, rehabilitation act, shotz v. city of plantation Florida, sovereign immunity, termination of federal funding, title II, title II regulations, title VI, United States of America v. state of Florida

Deaf Rights Game Changer: Silva v. Baptist Health South Florida Inc.

November 8, 2018 by William Goren 1 Comment

I imagine most of us are hung over from watching the election returns this week. Here in Georgia, it is still an open question as to whether there will be a runoff for governor. Here in Georgia; the Secretary of State race is going to a runoff; Democrats gained in the Georgia Senate and in the Georgia House; and counties surrounding Atlanta went blue. Nationally, the Republicans gained in the U.S. Senate and the Democrats took over the House. So, that will change the dynamic quite a bit, especially with the upcoming Mueller findings. At this writing, there were still a couple of suburban Atlanta United States House races that could go either way. It is certainly going to make for an interesting two years until 2020 presidential.

 

Today’s case is long overdue for blogging. The reason for the delay is that with David Llewellyn, I co-counseled a case involving a culturally deaf client who was not given an ASL interpreter at the Doctor’s office nor was an ASL interpreter present for the culturally deaf client and his culturally deaf wife at the hospital. David and I sued both the doctor and the hospital for failure to provide effective communication under the Rehabilitation Act. The case we are blogging on today, Silva v. Baptist Health South Florida, Inc., was the essential underpinning of our case, which we were able to settle successfully. As usual, the case is divided into categories, and they are: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts

The plaintiffs are culturally deaf individuals and communicate primarily in American Sign Language. Both can read and write in simple English. One of the plaintiffs communicates with very basic proficiency while the other reads at a fifth grade level. The two hospitals plaintiffs visited are owned and operated by Baptist Health South Florida, and both take federal funds. Both plaintiffs separately visited both hospital facilities numerous times. While visiting the hospitals, they requested live on-site ASL interpreter for most visits. However, the hospital relied primarily on VRI (uses an Internet connected machine with a live ASL interpreter located remotely to communicate with the doctor and patient through a portable screen). During many of the plaintiff hospital visits, the machines routinely suffered from technical difficulties that either prevented the device from being turned on or resulted in an unclear image quality thereby disrupting the message being communicated visually on the screen. When the VRI machine was unavailable or malfunctioned, hospital staff would often rely on family member companions for interpretive assistance or would exchange handwritten notes with the plaintiffs themselves. On some occasions, when the VRI broke down, there was an ASL interpreter that would be called in to assist with communication. All of these instances occurred when the plaintiffs went for care themselves and when one of the plaintiffs accompanied his father to the hospital’s facility for treatment. Plaintiffs sued under both the ADA and the Rehabilitation Act.

II

Court’s Reasoning

  1. Under both the ADA and the Rehabilitation Act, to prevail, a person with disability has to prove that he or she was excluded from participation in or denied the benefits of the hospital’s services, program, or activities, or otherwise was discriminated against on account of her disability.
  2. Under 28 C.F.R. §36.303(c)(1), an exclusion, denial, or discrimination occurs whenever a hospital fails to provide appropriate auxiliary aids and services to a deaf patient, or a patient’s deaf companion where necessary to ensure effective communication.
  3. Citing to the case we discussed here, to recover monetary damages, a person with a disability has to show that the hospital was deliberately indifferent to her federally protected rights.
  4. Plaintiffs offered sufficient evidence to support a finding that they would return to defendant’s facilities and that they would likely experience a denial of benefits or discrimination upon the return. For example, Silva testified in a declaration that the defendants have all of his medical records and history, that the hospital was close to his home, and that he had a history of prior care and treatment by that hospital. Jebian, the other plaintiff, testified in the same declaration that he would go to that same hospital as a  companion for his father in the near future due to his father’s ongoing health concerns and required follow-up. Finally, both plaintiffs have attended defendant’s facilities dozens of times in the years preceding lawsuit and both experienced numerous problems with the VRI devices not working at all or failing to transmit a clear screen image.
  5. In a footnote, the court noted a factual dispute existed with respect to whether the hospital had a policy in violation of the ADA and the Rehabilitation Act of using VRI across the board even when an in person interpreter was warranted.
  6. The appropriate test for evaluating effective communication claims is whether the deaf patient experienced an impairment in his or her ability to communicate medically relevant information with the hospital staff. The focus is on the effectiveness of the communication and not on the medical success of the outcome.
  7. Citing to 42 U.S.C. §12182(b)(1)(A)(ii), 29 U.S.C. §794(a), 45 C.F.R. §84.4(b)(1)-(b)(1)(ii), and 45 C.F.R. §84.52(d)(1), the ADA and the Rehabilitation Act focus not on quality medical care or the ultimate treatment outcome, but on the equal opportunity to participate in obtaining and utilizing services.
  8. The exchange of information between doctor and patient is part and parcel of healthcare services. So, regardless of whether a patient ultimately gets the correct diagnosis or medically acceptable treatment, the patient is denied the equal opportunity to participate in healthcare services whenever he or she cannot communicate medically relevant information effectively with medical staff.
  9. Under 45 C.F.R. §84.4(b)(2)-final regulations implementing the Rehabilitation Act-auxiliary aids, benefits, and services, to be equally effective, are not required to produce the identical result or level of achievement for persons with disabilities, but they must afford person with disability equal opportunity to obtain the same result, gain the same benefit, or reach the same level of achievement in the most integrated setting appropriate to the person’s needs.
  10. What matters is whether the patient with a disability is afforded auxiliary aids sufficient to ensure a level of communication about medically relevant information substantially equal to that afforded to patients without disabilities.
  11. The ADA and the Rehabilitation Act focus on the communication itself and not on the downstream consequences of communication difficulties, which can be remote, attenuated, ambiguous, or even fortuitous. So, claims for ineffective communication are not the same as claims for medical malpractice.
  12. Limiting the required level of communication to that necessary to convey primary symptoms, treatment plans, and any discharge instructions may still result in Deaf patients receiving an unequal opportunity to participate in healthcare services when compared to patients without disabilities. After all, when a hearing person goes to the hospital, that person is not limited only to describing symptoms and receiving the treatment planning discharge instructions. Those conversations can and sometimes should include a whole host of other topics, such as any prior medical conditions in history, medications the patient is taking, lifestyle and dietary habits, differential diagnosis, possible follow-up procedures and test, informed consent issue, and side effects and costs of potential courses of treatment. Since a person without a disability had the benefit of such an expansive informational exchange, it is error to conclude on summary judgment that the mere successful communication of the primary symptoms, treatment plans, and discharge instructions is enough to preclude liability under the ADA and the Rehabilitation Act.
  13. District Court’s requirement that plaintiffs articulate exactly what they failed to understand imposed too great a burden because it would be exceedingly difficult for a culturally deaf individual to recount a conversation that he or she could not hear. It would be the same as asking a blind patient to describe the contents of materials they cannot read.
  14. The proper inquiry under the ADA and the Rehabilitation Act is the examination of whether the hospital provided the kind of auxiliary aids necessary to ensure that a deaf patient was not impaired in exchanging medically relevant information with hospital staff.
  15. To be an effective communication, it is sufficient if the patient experiences a real hindrance because of her disability that affects her ability to exchange material medical information with their healthcare providers (emphasis mine). The level of communication to a culturally deaf individual about medically relevant information must be substantially equal to that afforded to patients without disabilities.
  16. The task of determining whether an entity subject to the Rehabilitation Act has provided appropriate auxiliary aids is inherently fact intensive.
  17. The record is replete with numerous instances where both plaintiffs did not receive effective communication. Those influences include: back-and-forth use of written notes when the plaintiff was unable to understand most of what they attempted to communicate; signing forms without explaining what the plaintiff was signing; numerous malfunctions of the VRI devices; delays in obtaining a live interpreter; inability to communicate prior to the set up of the VRI machine, VRI connection not being smooth nor strong enough, and many more.
  18. In a footnote, the court noted that the DOJ interpretive guidelines on its regulations explained that the exchange of written notes is not appropriate when the matter involves more complexity, such as communications concerning a medical history or diagnosis, and conversation about medical procedures and treatment decision, or in communication of instruction for care at home or elsewhere.
  19. In another footnote, the court noted that the hospital does not get a get out of jail free card because one of the plaintiff’s father communicated effectively with the plaintiff. The ADA regulations at 28 C.F.R. §36.303(c)(3) expressly provides that a covered entity cannot rely on an adult accompanying an individual with a disability to interpret or facilitate communication except in very narrow circumstances not applicable to this case.
  20. Since a culturally deaf individual must rely on the slight and sophisticated hand movements of an interpreter depicted on the screen, when the screen image is unclear or becomes choppy, the message is disrupted. Thus, instances of technological failures are corroborative evidence of plaintiff’s assertion that she could not communicate effectively with hospital staff. In a footnote, the court noted VRI services that do not deliver high quality video images by producing lags, choppiness, blurriness or grainy images, or regular pauses and communication for the lack of a sharply delineated image do not comply with 28 C.F.R. §36.303(f).
  21. With respect to the other plaintiff, Jebian, numerous instances in the record show that the hospital relied on family members for interpretation and that the VRI machines did not work properly.
  22. What matters is the actual quality of the communication between the patient and the hospital staff and not whether technical requirements for VRI machines set forth in regulations were satisfied.
  23. The court agreed that while plaintiff may not receive damages for claims arising out of hospital visits beyond the statute of limitation. Nevertheless, those visits are relevant and admissible to show deliberate indifference in order to get damages. In a footnote, the court noted that such evidence is also relevant to the claim for permanent injunction against the defendants allegedly discriminatory policies. Policies may be part of an ongoing alleged violation under the continuing violation doctrine. That is, plaintiffs can rely on hospital visit preceding the limitation period to support their theory that the hospitals policies and practices, which continued through the limitation period, were unlawful.
  24. While Baptist Health is the parent company to both hospitals involved in this lawsuit, they don’t get a pass because Baptist Health owns and operates the hospitals the plaintiffs went to. Those hospitals also house the network to which the VRI machines are connected. It also applies its various policies and procedures to the hospitals and affiliated outpatient facilities.

III

Takeaways

  1. This case is a 2017 case, but to my mind, it is the most significant case for culturally deaf individuals in the last two years, though I recognize there may be argument over that. Also, nothing in this statement is meant to take away from the incredible work that the National Association of the Deaf has been doing in a variety of cases, many of which we have discussed in our blog.
  2. The standard of whether medical communication was impaired or hindered is a low standard.
  3. Under this decision, a healthcare provider should be very wary of over relying on VRI devices. Also, the culturally deaf community can’t stand these devices. While the DOJ may or may not be more receptive to VRI devices, I can tell you that over relying on the VRI devices when medical information is complex as it is, is likely to get a culturally deaf individual very very upset, impede medical care, and increase the chance of litigation.
  4. As we have discussed previously, effective communication rules have significant differences depending upon whether a private or public entity is involved. If a private entity is involved as discussed here, then there is room for back-and-forth negotiation but effective communication as set forth by this court must occur. On the other hand, if a public entity is involved, then, as discussed here, the public entity must give primary consideration to the preferred way the patient prefers to communicate. Thus, it is theoretically possible that a public hospital has a much higher standard for effective communication than a private hospital does. That said, Silva leads one to wonder just how much of a difference there actually will be with respect to healthcare providers and their patients when it comes to effective communications.
  5. If you are a healthcare provider, do NOT rely on family members to interpret for the culturally deaf individual.
  6. If you are using VRI machines, make sure your personnel is trained in how to use them and that if anything at all is preventing effective communication with the patient, get an ASL interpreter in there as soon as you can.
  7. Absolutely no reason in my mind why this case does not apply to equal force to the legal profession since the concerns expressed by the court are exactly the same when it comes to dealing with legal information.
  8. With respect to what it takes to prove deliberate indifference, we discussed that here.
  9. For defendants, this case makes clear that getting summary judgment on effective communication cases may be very difficult indeed.
  10. Did I mention that the culturally deaf community absolutely hates VRI machines and would love to see them completely gone from existence? That said, depending upon the state you are in, there may be a real issue with respect to the number of ASL interpreters that can interpret at a level enabling effective communication in the medical context.
  11. Policies and procedures that discriminate against persons with disabilities may run you into one of the few situations where the court applied the continuing violation doctrine with respect to statute of limitation issues.
  12. Did I mention that the culturally deaf community absolutely hates VRI machines and would love to see them completely gone from existence in favor of live ASL interpreters? Another reason for that point of view, is the quality of interpreters when using VRI machines can vary radically.
  13. For lawyers, one of the common ways the culturally deaf community communicate with the hearing community is through the use of videophones. That is, the culturally deaf individual uses a video phone to call the hearing person or a hearing person uses his or her regular phone to call the culturally deaf individual. The call is then connected and an interpreter is then translating what the hearing person is saying and vice a versa through the use of ASL. The process is seamless. It is almost as if you are using the regular phone. That said, the interpreters that you get in such a situation may vary radically in their skill level with respect to interpreting complex legal information. That is something you have to be aware of and prepared for. You may have to request a different interpreter. Depending on the information and the stakes involved, you may just have to schedule an in-person meeting. Keep in mind, that whenever you have an in-person meeting, as a lawyer, you are obligated under title III of the ADA to furnish the ASL interpreter for that meeting and you cannot pass on that cost to the client. So, a lawyer, particularly on the plaintiff side, certainly has an incentive to use the video phones whenever possible, but you have to keep in mind its limitations.
  14. Finally, it would be wonderful if all the State Bars had a program like Texas whereby solo and small firm practitioners can get reimbursement from the State Bar whenever they need to have an ASL interpreter for a culturally deaf client. Such a program would certainly increase the ability of the deaf community to take advantage of legal services.

Filed Under: General Tagged With: 28 C.F.R. §36.303, 29 U.S.C. §794(a), 42 U.S.C. §12182, 45 C.F.R. §84.4, 45 C.F.R. §84.52, ADA, ASL, auxiliary aids, complex medical information, deaf, deliberate indifference, effective communication, hard of hearing, hindrance, ineffective communication, Liese v. Indian River County Hospital District, quality of communication, rehabilitation act, required level of communication, Silva v. Baptist health South Florida inc, substantially equal, title II, title III, videophones, VRI

Can DOJ Enforce Title II of the ADA Redux

April 24, 2018 by William Goren 1 Comment

 

Previously, we discussed in this blog entry a case out of the Southern District of Florida holding that DOJ had no authority to enforce on its own title II of the ADA. That decision laid out the case against DOJ having independent title II enforcement. However, I thought it would be interesting to discuss the other side. That is, what are the arguments saying that DOJ has independent title II enforcement powers? Dudek was appealed to the 11th Circuit and took on a different name, A.R. v. Sec., Florida Agency for Healthcare Administration. On March 1, 2018, the Department of Justice filed its reply brief where it argued that DOJ does indeed have independent title II enforcement powers. Also of note, is that the entire disability community, regardless of disabilities, has filed amicus briefs supporting the Department of Justice position. The DOJ reply brief can be found here. As usual, the blog entry is divided into categories, and they are DOJ arguments and thoughts. I can’t imagine the reader wouldn’t focus on both categories, but certainly the reader will want to choose reading the DOJ arguments for sure.

I

DOJ Arguments

  1. The United States has vigorously enforced title II of the ADA in order to prevent and remedy discrimination by State and local governments since 1992.
  2. There are more than 50 years of judicial decisions and administrative interpretations and practice construing title VI of the Civil Rights Act and the Rehabilitation Act as authorizing the federal government to sue violators when voluntary compliance cannot be achieved.
  3. 42 U.S.C. §12133 has substantially identical wording to §505(a)(2) of the Rehabilitation Act, 29 U.S.C. §794a(a)(2), which incorporate the remedies, procedures, and rights of title VI of the Civil Rights Act, 42 U.S.C. §2000d-1.
  4. The Atty. Gen. has long enforced title VI of the Civil Rights Act through lawsuits as an alternative to the more draconian course of terminating federal funding.
  5. Reading federal enforcement authority out of title II would give victims of disability discrimination in public services far less valuable remedies, procedures, and rights then victims have under title VI of the Civil Rights Act and under the Rehabilitation Act. That makes no sense since Congress directed that all three laws have the same enforcement systems.
  6. Title VI of the Civil Rights Act has two alternative federal enforcement mechanism-federal funding termination or a lawsuit by a federal agency. Before a federal agency can exercise either of those options, the agency must determine that compliance cannot be secured by voluntary means, and so, that is where the administrative enforcement process comes in.
  7. In 1977, HEW issued regulations implementing §504 of the Rehabilitation Act incorporating HEW’s title VI complaint and enforcement procedures. Accordingly, those regulations adopted an administrative enforcement process for the Rehabilitation Act that could culminate in a federal agency’s enforcement suit where it was unsuccessful in achieving voluntary compliance.
  8. In 1978, Congress added §505(a)(2) to the Rehabilitation Act, which incorporates title VI’s remedies, procedures, and rights. In enacting §505, Congress intended to make available to victims of disability discrimination the remedies, procedures, and rights of title VI, which includes an administrative enforcement process leading to federal agency enforcement action.
  9. Congress enacted the ADA to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities and to ensure that the federal government plays a central role in enforcing those standards. 42 U.S.C. §12101(b)(2)-(3).
  10. An integral purpose of title II of the ADA was to extend the reach of §504 of the Rehabilitation Act to make any public entity liable for prohibited acts of discrimination, regardless of funding source. Therefore, it makes no sense to construe title II of the ADA to create a feebler enforcement mechanism than what is available in the Rehabilitation Act and title VI of the Civil Rights Act.
  11. Federalism concerns raised by the state of Florida make no sense because the United States does not infringe on state sovereignty in the way suits by individuals do.
  12. Given the accepted interpretation of title VI and §504 at the time of the ADA’s enactment, Congress’s importation of the same remedies, procedures, and rights clearly means that federal enforcement is available under title II of the ADA.
  13. Legislative history of title II of the ADA shows clearly that Congress intended for the Atty. Gen. to file suit in federal district courts in the event that a federal agency is unable to resolve the complaint filed voluntary means.
  14. While it is true that draft legislation of title II was more explicit about DOJ’s enforcement possibilities, the changes that were made to title II were entirely clerical so that the first three titles of the ADA could be on the same page. That is, it is implausible that the House Judiciary Committee would have made a minor word change for the purpose of eliminating the authority that both the Senate Labor and Human Resources Committee and the House Education and Labor Committee explicitly intended the Atty. Gen. to have when it comes to enforcing title II of the ADA.
  15. The United States Supreme Court has acknowledged that a person alleging disability discrimination in violation of title II may seek to enforce a provision by commencing a private lawsuit or by filing a complaint with the federal agency. That administrative process would be seriously undermined if federal agencies had no power to enforce title II against public entities.
  16. DOJ has filed numerous brief with the Supreme Court over the years claiming authority to enforce title II and documenting therein extensive federal enforcement of title II dating back to the 1990s.
  17. DOJ has achieved numerous successes over the years in persuading state and local government enter into pre-suit settlement to resolve alleged title II violations.
  18. Without the possibility of a DOJ lawsuit as a backstop, state and local governmental entities have little incentive to come to the negotiating table and reach a voluntary resolution during the administrative process.
  19. Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it reenacted a statute without change. By 2008; 1) the title II regulations had long provided that the Atty. Gen. has authority to file a lawsuit in the absence of voluntary compliance (28 C.F.R. §35.174); 2) the Atty. Gen. had acted on that authority by undertaking numerous enforcement activity under title II; and 3) courts had construed §12133 is providing the Atty. Gen. authority to enforce title II of the ADA. Therefore, in the absence of a clear expression of congressional intent to overturn the settled administrative and judicial interpretations, §12133 must be read as continuing to authorize the Atty. Gen. to sue under title II.
  20. Since the 1990s, federal agencies routinely secured individualized relief, whether it be monetary or equitable, for complaints through the title II administrative enforcement process in addition to obtaining systemic relief.
  21. As Congress knew well in 1990, courts have construed title VI of the Civil Rights Act as setting forth two alternative federal enforcement mechanism to compel compliance with the nondiscrimination requirements-termination of federal funding or a a lawsuit by the United States. Since title II applies to public entities that do not receive federal financial assistance, it necessarily follows that a federal lawsuit is something allowed by the incorporation of the remedies of the Rehabilitation Act into title II of the ADA.
  22. In enacting the ADA, Congress intended persons alleging discrimination under title II have the same remedies, procedures, and rights as victims under title VI of the Civil Rights Act and under the Rehabilitation Act. Without the prospect of a federal suit under title II, the administrative process for title II violations would be far less meaningful.
  23. In Barnes v. Gorman, which we mentioned here, the Supreme Court said that the remedies, procedures, and rights are the same under title II of the ADA, title VI of the Civil Rights Act, and the Rehabilitation Act.

II

Takeaways

  1. To my mind, it was far from certain that DOJ would take the side that it had the right to enforce title II of the ADA, and so, this is a pleasant surprise.
  2. Without federal agencies having the ability to enforce title II of the ADA through lawsuits, many people with disabilities are simply not going to be able to effectively take on governmental entities for disability discrimination as they will not be able to afford private attorneys (there aren’t many private attorneys doing plaintiff’s side title II work (the high standard for damages and the deep pockets of governmental and state agencies are a particular problem for getting an attorney to take on plaintiff title II cases), and protection and advocacy groups and nonprofits have varying capabilities and priorities.
  3. Several arguments made by DOJ I find particularly strong, including the arguments mentioned in ¶ ¶ 1, 2, 4, 5, 8, 9, 10, 12, 17, 18, 19, 20, 21, and 23.
  4. As far as I can tell, oral argument has not occurred in this case yet.
  5. Regardless of the 11th Circuit decision, this one is headed to the United States Supreme Court at some point. The only question is whether the Supreme Court will wait for a Circuit Court split. The 11th Circuit will be the first Circuit Court to directly address the question, which is likely to happen since strong arguments exist both ways.

Filed Under: ADA, General, Rehabilitation Act, State Cases, Title II, Title VI of Civil Rights Act Tagged With: §504, §505, §505 of the Rehabilitation Act, 11th circuit, 28 C.F.R. §35.174, 29 U.S.C. §794(a), 42 U.S.C. §12101, 42 U.S.C. §12133, A.R. v. Florida agency for healthcare administration, ADA, Barnes v. Gorman, C.V. v. Dudek, DOJ enforcement, DOJ reply brief, federal enforcement authority, Federal funds, governmental entities, HEW, legislative history, Liese v. Indian River County Hospital District, rights remedies and procedures, title II, title VI of the Civil Rights Act

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