I would say about 10% of my blog entries deal with ADA related nondiscrimination laws and concepts but not the ADA itself, including such things as the Fair Housing Act, Air Carrier Access Act, and constitutional law. Occasionally, we throw in a state law as well. Today is another one of those, the, Affordable Care Act (ACA), which I have not blogged on before. A recent case from the Second Circuit reveals that the ACA is another arrow in the quiver of a plaintiff’s attorney alleging that a healthcare entity did not provide effective communication. It also has a four year statute of limitations. The case of the day is Vega-Ruiz v. Northwell Health185205212, an unpublished per curiam decision decided by the Second Circuit on March 24, 2021. As usual the blog entry is divided into categories and they are: facts; court’s reasoning statute of limitations is four years; court’s reasoning primary consideration rule; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Plaintiff is profoundly deaf woman with limited English proficiency and limited ability to read lips. On October 13, 2015, she accompanied her brother to Long Island Jewish Valley Stream, a facility operated by Northwell Health, as his health care proxy for his scheduled surgery. During her brother’s visit, she requested an ASL interpreter in order to fulfill her duties as a proxy. Instead, Northwell provided a Spanish language interpreter who communicated to the plaintiff through written notes and lip reading. Three years and three months later, plaintiff filed a complaint against defendants alleging disability discrimination under the ACA, 42 U.S.C. §18116186206213(a). The District Court threw out the claim as being untimely concluding that the claim was in effect a Rehabilitation Act claim so the New York’s three year statute of limitation period for personal injury actions applied.

 

II

Court’s Reasoning Statute of Limitations Is Four Years

 

  1. Before Congress enacted 28 U.S.C. §1658187207214, if a federal statute lacked a limitation period the federal courts looked to the most appropriate or analogous state statute of limitations.
  2. The Rehabilitation Act lacks an express statute of limitations. So, courts apply the limitation period of a state’s personal injury laws.
  3. In 1990, Congress enacted §1658 to simplify the arduous task of determining which limitation period applies to an act of Congress not containing a statute of limitations.
  4. Under §1658, Congress created a uniform federal statute of limitations applying when a federal statute fails to set its own limitation periods. §1658 provides a four-year catchall limitation period for claims arising under acts of Congress in effect after December 1, 1990 that do not specify a statute of limitations.
  5. In a footnote, the court noted that the practice of borrowing various state statute of limitations created a number of practical problems, including: obligating judges and lawyers to determine the most analogous state law claims; imposing uncertainty on litigants; and creating a situation where reliance on varying state laws results in undesirable variance among the federal courts and disrupts the development of federal doctrine on the suspension of limitation periods.
  6. The United States Supreme Court has concluded that §1658’s four year statute of limitation applies just as much to an amendment to an existing statute as it does to a new stand-alone statute. With respect to any amendment, what matters is the substantive effect of an enactment. The key is the creation of new rights of action and corresponding liabilities and not the format in which it appears in the code. In other words, the four-year statute of limitation applies if the plaintiff’s claim against the defendant was made possible by a post 1990 enactment.
  7. A plaintiff bringing a claim under the ACA presents a different case than a plaintiff alleging the same harm under the Rehabilitation Act.
  8. Northwell’s argument that §1658 needs to be construed narrowly is superseded by the Supreme Court, which has held that a narrow reading of “arising under,” subverts Congress’s goal by restricting §1658 the cases in which the plaintiff’s cause of action is based solely on a post 1990 statute establishing a new cause of action without reference to pre-existing law.
  9. Congress when enacting §1658 sought to avoid the precise situation of trying to untangle competing statutes of limitations where the federal statute on which plaintiff’s claim is based lacks its own limitation period.
  10. Plaintiff’s disability claim is made possible by the ACA because the ACA changed Northwell’s obligation by subjecting them to the “primary consideration,” obligation when it had previously been subjected to the lesser “encouraged to consult,” obligation. Accordingly, §1658 applies and the four-year statute of limitations is the applicable statute. Since only 3 ½ years transpired before filing the claim from the incident, plaintiff claim is timely.

 

III

Primary Consideration Rule

 

  1. The ADA creates a different set of standards for public entities under title II than for places of public accommodations under title III when it comes to effective communications.
  2. Under title II’s final implementing regulation, 28 C.F.R. §35.160188208215(b)(2), a public entity has to give primary consideration to the kind of aid requested by a person with a communication disability, though the type of auxiliary aid or service necessary to ensure effective communication varies in accordance with the method of communication used by the individual. Giving primary consideration mean that a title II entity has to honor the person’s choice unless it can demonstrate that another equally effective means of communication is available, or that the use of the means chosen would result in a fundamental alteration or in an undue burden.
  3. Under title III’s final implementing regulation, 28 C.F.R. §36.303189209216(c)(1)(ii), places of public accommodations are only encouraged to consult with the person with a disability to discuss what aid or service is appropriate. Title III entities are not obligated to honor an individual’s choice of aid.
  4. The Department of Justice has said that strongly encouraging consultation with persons with disabilities in lieu of mandating primary consideration of their expressed choice is consistent with congressional intent with respect to title III of the ADA.
  5. The ACA diverged from the Rehabilitation Act because the ACA does not distinguish between title II public entities and title III places of public accommodations. Instead, the ACA applies title II requirements to all defendants. In particular, 45 C.F.R. §92.102190210217(a) provides, “any entity operating or administering a program or activity under this part shall take appropriate steps to ensure that communication with individuals with disabilities are as effective as communication with others and subprograms or activities in accordance with the standards found that 28 C.F.R. 35.160 through 35.164.” In other words, the ACA extends primary consideration to individuals seeking services at title III places of public accommodations.
  6. In a footnote, court notes that the remedies for violating the ACA are tied into the remedies for violating the Rehabilitation Act, 42 U.S.C. §18116191211218(a). Those remedies include: allowing a person discriminated against to seek injunctive relief, damages, etc.; giving the Atty. Gen. the power to investigate claims and undertake periodic compliance reviews, and allowing private parties or the Atty. Gen. or both to bring civil suits (42 U.S.C. §12133192212219, 42 U.S.C. §12188193213220).
  7. In a footnote, the court said that at the time of the discrimination proposed rules regarding the change in standard applying to disability discrimination claim under the ACA existed. Although those rules were amended in August 2020, the relevant rules to this appeal were not substantively changed.

 

IV

Thoughts/Takeaways

 

  1. The issue of the four-year statute of limitations is something that we have discussed previously, such as here194214221. The key question is whether new rights were created after December 1 of 1990. With respect to the ADA, most of the time new rights were not created. However, in some cases you could argue that there were new rights created by the amendments to the ADA. For example, under the amendments to the ADA you can no longer consider mitigating measures when it comes to deciding whether a person has a disability. The amendments to the ADA expanded the ADA’s definitional terms, such as but not limited to what is a major life activity. So, it is possible that a person may have been given new rights depending upon the major life activity that they have and/or their use of mitigating measures. I don’t believe there are many situations where the amendments created new rights rather than clarifications, but some such situations may well exist.
  2. The practical problems for figuring out a statute of limitations for a federal claim are every bit what the court notes in one of its footnotes. For example, states don’t always agree that the personal injury statute of limitations is what applies. Sometimes, a court will find that the disability nondiscrimination statute of limitation applies. The various statute of limitations can range all over the place with respect to their time frame.
  3. The Rehabilitation Act does not follow the primary consideration rule. However as we have discussed here195215222, case law does exist saying that anything that hinders effective communication is not effective communication under the Rehabilitation Act. Admittedly, courts are taking various views on what that means as we discussed in this blog entry196216223. That said, is an effective communication case under the ACA really different than an effective communication case under the Rehabilitation Act? The standards of liability are different, but aren’t they in essence the same claim? That said, there can be no doubt that the ACA gives a person rights that did not previously exist before 1990. So, it makes sense that the four-year statute of limitation applies to ACA matters even if the court’s language is a bit ambiguous.
  4. Any entity subject to the ACA that does not go about effective communication with its customers/patient properly is likely to face an ACA cause of action. True, the company may also face ADA and Rehabilitation Act claims as well. However, the ACA allows the plaintiff to utilize the “primary consideration,” rule whereas the ADA and the Rehabilitation Act do not. Arguably, the primary consideration rule is even more broad than the “hinder communication,” principle established in Silva197217224, which we discussed here198218225. Any plaintiff attorney dealing with a defendant subject to the ACA and an effective communication claim strongly needs to consider adding the ACA claim.
  5. Since the remedies for the ACA are tied into the Rehabilitation Act, that means punitive damages are out under Barnes v. Gorman199219226.
  6. I don’t get how a Spanish language interpreter is an appropriate call for a person needing an ASL interpreter.
  7. This case is a per curiam unpublished decision and so its precedential value is limited, especially depending upon the jurisdiction. Nevertheless, the case does suggest one possibility where courts may be heading and so as a matter of preventive law. So, companies subject to the ACA may want to think about enacting policies and procedures reflecting the primary consideration approach rather than the consultation approach.

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