29 U.S.C. §794(a)

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.

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.

Court’s Reasoning

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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
To be ineffective 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.
The task of determining whether an entity subject to the Rehabilitation Act has provided appropriate auxiliary aids is inherently fact intensive.
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.
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.
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.
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).
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.
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.
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.
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

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.
The standard of whether medical communication was impaired or hindered is a low standard.
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.
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.
If you are a healthcare provider, do NOT rely on family members to interpret for the culturally deaf individual.
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.
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.
With respect to what it takes to prove deliberate indifference, we discussed that here.
For defendants, this case makes clear that getting summary judgment on effective communication cases may be very difficult indeed.
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.
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.
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.
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.
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.

Can DOJ Enforce Title II of the ADA Redux

April 24, 2018 by William Goren Leave a 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 11^th 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.

DOJ Arguments

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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.

Takeaways

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.
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.
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.
As far as I can tell, oral argument has not occurred in this case yet.
Regardless of the 11^th 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 11^th Circuit will be the first Circuit Court to directly address the question, which is likely to happen since strong arguments exist both ways.

Does § 504 Apply to Independent Contractors?

February 8, 2016 by William Goren Leave a Comment

Previously, I have discussed here whether § 504 applies to employment. Today’s case, Flynn v. Distinctive Home Care, Inc. (you can find my blog entry discussing the District Court opinion here), takes it even further. Today’s case, explores whether § 504, assuming it applies to employment, applies to independent contractors. As is my usual custom, I have divided the blog entries into categories: Facts; Court’s Reasoning; and Takeaways. The reader is free to focus on any or all of the categories.

I
Facts

The plaintiff was a contract pediatrician. Spectrum Healthcare Resources, Inc. contracted with the United States Air Force to provide medical services at Lackland Air Force Base in San Antonio Texas. Spectrum and the plaintiff entered into a contract whereby Flynn agreed to provide clinical pediatric services at the San Antonio military Medical Center for 20 hours per week. The agreement explicitly provided that Flynn was an independent contractor. She subsequently assigned her rights under the contract to a professional company managed by her. When Spectrum’s contract terminated in March 2013, Distinctive Healthcare Staffing took over Spectrum’s duty to provide medical services at Lackland. They retained Spectrum as a subcontractor on the government contract so that Spectrum continued to directly communicate with the independent contractor providing medical services at the base. In April 2013, Distinctive entered into a new contract with the management company controlled by Flynn. Under the contract she was to provide services for at least 936 hours per year. As with the previous contract, the contract specifically said that she was an independent contractor and that distinctive would not have any control or have the right to exercise control over the manner and means in which she performed medical services at the base. On May 15, 2013, Flynn’s psychologist diagnosed her with autism spectrum disorder-mild, what used to be known as Asperger’s syndrome (a disorder characterized by significant difficulties in nonverbal communication and social interaction, as well as restricted and repetitive patterns of behavior and interests). Around that same date, the government officer responsible for overseeing Distinctive’s contract with the Air Force, contacted Distinctive’s president and raised several concerns with her performance, including several complaints from patients and coworkers, failing to report to work on time, and her failure to timely complete patient charts. The government officer stated that it was in the best interest of the government if she was removed from providing services under Distinctive’s contract with the Air Force. On May 16, 2013, a Spectrum employee informed her that the clinic was concerned about her performance. In response, she informed that employee that her psychologist had just diagnosed her the previous day with autism spectrum disorder-mild (Asperger’s). She believed that her condition explained many of the issues of concern to Distinctive and Spectrum. On May 30, 2013 the government contract officer sent distinctive an email containing documentation purportedly substantiating the allegations of performance and patient complaints against Flynn. The government contract officer again requested that she be removed from her duties as an independent contractor. On June 7, 2013, Flynn, Spectrum, and Distinctive held a conference call during which she asked to be reinstated with accommodations. After Distinctive and Spectrum discussed Flynn’s requested accommodation with the Air Force, the government responded that it could not accommodate her request. As a result both Spectrum and Distinctive informed Flynn that they would not retain her as an independent contractor. She then sued Spectrum and Distinctive for employment discrimination under § 504 of the Rehabilitation Act. The District Court granted summary judgment in favor of the defendants because she was an independent contractor and not an employee. Flynn appealed to the Fifth Circuit.

II
In holding that § 504 applied to independent contractors, the court reasoned as follows:

1. The U.S. Courts of Appeals are split on the issue.

2. After citing to the Rehabilitation Act, 29 U.S.C. § 794, the court says that § 504 broadly prohibits discrimination, including employment discrimination, against persons with disabilities in federally assisted programs or activities.

3. Since § 504 of the Rehabilitation Act only applies to discrimination in program receiving federal financial assistance, it does not properly protect persons with disabilities from discrimination in the private sector. That is the reason why title I of the ADA was enacted. However, title I of the ADA only applies to employees. Therefore, Flynn’s only option was to sue under § 504 the Rehabilitation Act.

4. Soon after Congress enacted the ADA, it became concerned about potential inconsistencies between the Rehabilitation Act and the ADA. Therefore, they enacted 29 U.S.C. § 794(d), which provides that the standard used to determine whether § 504 of the Rehabilitation Act has been violated in a complaint alleging employment discrimination shall be the standard applied under title I of the ADA. Senator Harkin explained that the purpose of 29 U.S.C. § 794(d) was to put everyone on notice that the definitions of reasonable accommodation and discrimination under the ADA were the ones that apply. Also, people would know that the standard governing preemployment inquiries and examinations as well as the standard governing inquiries of current employees under the ADA would also apply to Rehabilitation Act.

5. Distinctive admitted that it receives federal financial assistance.

6. Unlike title I of the ADA, § 504 of the Rehabilitation Act is not limited to employment. Rather, § 504 of the Rehabilitation Act prohibits discrimination under any program or activity receiving federal financial assistance. Further, program or activity is defined per 29 U.S.C. § 794(b) to include all of the operations of an entire Corporation, partnership, or other private organization, or entire sole proprietorship. Therefore, a previous case from the Ninth Circuit reasoned that the Rehabilitation Act covers all of the operations of covered entities and not just those related to employment.

It should be noted that the applicability of the Rehabilitation Act to the defendant is actually a little bit more complicated than what the court alludes to. Reviewing, 29 U.S.C. § 794(b)(3)(A) reveals that all of the operations of the Corporation are only involved if they are receiving federal financial assistance to the entire Corporation. Hard to say whether that is the case here. However, all of the operations are involved if the Corporation is principally involved in healthcare, which Distinctive and Spectrum probably are.

7. The conclusion that the Rehabilitation Act does not completely incorporate the terms of the ADA so that the Rehabilitation Act applies beyond employees, is consistent with a prior opinion from the Fifth Circuit where they considered whether the Rehabilitation Act incorporated title I of the ADA’s view of causation in employment discrimination cases. In that case, Soledad v. United States Department of Treasury, the Fifth Circuit concluded that the specific language contained in the Rehabilitation Act referring to causation (29 U.S.C. § 794(a)), prevailed over the more general incorporation language contained in 29 U.S.C. §794(d).

8. 29 U.S.C. § 794(a) contains explicit language authorizing discrimination suits against any program or activity receiving federal financial assistance. Therefore, to incorporate the requirements of title I of the ADA mandating an employee employer relationship would conflict with the plain language of the Rehabilitation Act. That law specifically and broadly authorizes discrimination suits against a wide variety of entities, including non-employers.

9. §504(d) of the Rehabilitation Act does not incorporate title I in its entirety. Instead, it specifies that the ADA’s standards are to be used to determine whether the Rehabilitation Act has been violated. It does not say that the standards of the ADA are to be used to determine when the employer is even subject to the Rehabilitation Act in the first place. Therefore, the Fifth Circuit agrees with the conclusions of the Ninth Circuit and the 10th Circuit stating that Rehabilitation Act adopts only the substantive standard for determining the conduct that violates the Rehabilitation Act and not the definition of who is covered under the Rehabilitation Act.

10. Since the Rehabilitation Act does not incorporate title I of the ADA standards for determining the entities that may be held liable for employment discrimination, it does not incorporate title I of the ADA’s requirement that the defendant must be the plaintiff’s employer. Therefore, the fact that a plaintiff is an independent contractor of the defendant is not fatal to the plaintiff’s Rehabilitation Act claim.

11. Case law from the Eighth Circuit to the contrary is not persuasive for several reasons. First, § 504 the Rehabilitation Act is materially different from title I of the ADA because it specifically defines the entities to which it applies and does not address employers. Second, title I and § 504 do not cover the same entities and so the two statutes are not perfectly interchangeable. Third, that case law specifically mentioned that there was no existing precedent on the question. However, since that time, there is precedent on the question with the Ninth Circuit holding that an independent contractor may sue a defendant for employment discrimination on the Rehabilitation Act. Finally, contrary case law also referred to the definition of a qualified handicapped person in the Rehabilitation Act, but the Fifth Circuit failed to see how that particular provision had any bearing on whether the Rehabilitation Act authorized suits by independent contractors or on the degree to which § 504(d) incorporates title I of the ADA.

12. Another case from the Fifth Circuit also doesn’t work because that case holds that an individual supervisor could not be sued for employment discrimination under § 504 the Rehabilitation Act because that individual supervisor did not herself receive federal financial assistance.

13. There was an unpublished decision from the Fifth Circuit saying that the former employee lacked standing to pursue a discrimination claim involving a terminated benefit because he would not an employee of the Air Force nor an applicant for employment with the Air Force when a disability retirement benefits were terminated. However, the Fifth Circuit because of the reasons mentioned above declined to follow that decision. In a footnote, they also noted that unpublished opinions issued on or after January 1, 1996 are not precedent.

III
Takeaways

1. Since there is a split among the Circuits (independent contractors are covered in the 9th, 10th, and 5th Circuits but not in 8th), it would seem that this case could go to the United States Supreme Court.

2. This case has potentially huge ramifications because doctors are often independent contractors, and convincing a court (as noted in my blog entry discussing the District Court opinion in this case, mentioned above), to apply title III to the situation is not an easy matter.

3. This case also has ramifications with respect to whether prisons get a get out of jail free card when it comes to disability discrimination against prisoners with respect to prison jobs, which I discussed in this blog entry.

4. Interesting that the U.S. government wasn’t sued as the Rehabilitation Act prohibits them from engaging in discrimination through contracting.

29 U.S.C. §794(a)

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