Before getting started on the blog entry of the week, I want to wish the members of the Jewish faith celebrating Yom Kippur this week a pleasant fast if you are fasting’s as well as a pleasant end to the 10 days of reflection.

 

Also, I wanted to report that my case against LawPracticeCLE settled with a consent decree. I note the following:

 

  1. Before we could even get to the consent decree, we had to survive a motion to dismiss. The order denying the motion to dismiss is here and has some great language in it. It also provides very useful context.
  2. My attorney, John Waldo, Esq., did get his fees as part of the settlement, which is contained in a confidential side agreement. He did a fabulous job.
  3. The consent decree, here, specifically states that online CLE providers are subject to §309 of the ADA, 42 U.S.C. §12189.
  4. The consent decree requires captioning for all programming as well as dial-in access and captioning for any live programming.

 

On a lighter note, if you have a team in the baseball playoffs, I wish your team the best of luck unless you are playing my team of course, the Atlanta Braves. For the first time in history, the National League East very well could have two teams with 100 wins in the same season. Congratulations to the Dodgers for 110 wins in a season. Only two teams in history have ever won more.

 

Our case of the day is Bax v. Doctors Medical Center of Modesto, Inc., here, A published decision from the Ninth Circuit decided September 12, 2022. The question presented by the case is whether the primary consideration rule found in title II of the ADA’s effective communication regulations applies to either §504 claims or to claims under the Affordable Care Act (ACA). As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that appropriate auxiliary aids and services were provided under §504; court’s reasoning that §504 does not contain title II of the ADA primary consideration rule; court’s reasoning that the ACA has a primary consideration rule but the rule was not applicable at the time of the occurrences; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Mark and Lucia Bax, a married couple, have each been deaf since early childhood. Mr. Bax considers his first language to be American Sign Language (ASL)1 and his second language to be English. Mrs. Bax considers her first language to be Spanish, her second language to be ASL, and her third language to be English. DMC is an acute care hospital in Modesto, California. Mr. Bax was a patient at DMC in October and November 2015, and Mrs. Bax accompanied him during his stays. Mrs. Bax was a DMC patient in January 2017, accompanied by Mr. Bax. During the period of the Baxes’ stays, DMC contracted with an interpreting service to provide in-person ASL interpreters for patients. DMC also contracted with another company to provide ASL interpretation via video remote interpreting (VRI)—an interpreting service that uses real-time, full-motion video and audio over a high-speed internet connection to permit a live ASL interpreter to communicate with a doctor and patient through a portable screen from a remote location. Mr. Bax received in-patient medical care at DMC from October 13 to 27, 2015, and November 12 to 18, 2015, to treat his diabetes and a wound infection on his foot, which required three surgeries and ultimately amputation of his left pinky toe. Mr. Bax’s treatment at DMC also included a 1 “ASL is a visual, three-dimensional, non-linear language, and its grammar and syntax differ from the grammar and syntax of English and other spoken languages.” EEOC v. UPS Supply Chain Sols., 620 F.3d 1103, 1105 (9th Cir. 2010). His treatment also included a diabetes diagnosis, physical therapy, and various patient education sessions concerning diabetes. During his fifteen-day October 2015 hospital stay, Mr. Bax requested an in-person interpreter on eight days. DMC provided an in-person interpreter on six of those days. On a seventh day, DMC attempted to use VRI to communicate with Mr. Bax, but the equipment malfunctioned due to internet connectivity issues, precluding meaningful communication with the remote interpreter. On the remaining day, DMC denied Mr. Bax’s request for an interpreter to translate a Medicare notice. In addition to using interpreters, DMC staff often communicated with the Baxes during Mr. Bax’s stay by writing notes, including to convey his diabetes diagnosis, conduct patient education sessions, and discuss postoperative care. Mr. Bax returned to DMC for a surgical follow-up appointment on November 12, 2015. He was ultimately hospitalized for seven days of treatment, including a third foot surgery. During this hospitalization, Mr. Bax requested an in-person interpreter on three days, and DMC provided an interpreter on each of those days. On November 13, DMC provided in-person interpretation during the day and VRI at night. Connectivity issues with the VRI, however, interfered with Mr. Bax’s ability to use it to communicate with DMC staff. On the remaining days of Mr. Bax’s November hospitalization, DMC staff communicated with him in writing, including for emergency room evaluation, diagnosis, treatment counseling, and patient education. On January 12, 2017, Mrs. Bax sought treatment at DMC’s emergency room for pain in her kidney, neck, and back, and was admitted to the hospital for a few hours. During her stay, Mrs. Bax communicated with an emergency room physician assistant via VRI.

 

The Baxes, along with co-Plaintiff Mary Birmingham, filed this action against DMC, alleging disability discrimination under (1) Title III of the ADA; (2) Section 504; (3) Section 1557 of the ACA; (4) the Unruh Act; and (5) the California Disabled Persons Act (CDPA), Cal. Civ. Code § 54 et seq. Plaintiffs sought declaratory and injunctive relief concerning DMC’s policies for providing communication aids, including interpreter services, for deaf or hard-of-hearing individuals. They also sought monetary damages and attorneys’ fees. The district court granted partial summary judgment to DMC and dismissed the CDPA claim, the Unruh Act claim (to the extent based on intentional discrimination), and Mrs. Bax’s compensatory damages claim under Section 504 and the ACA. The district court denied summary judgment on Mr. Bax’s compensatory damages claims under Section 504 and the ACA and on each Plaintiff’s “companion claims.”2 Plaintiff Birmingham’s claims were resolved by her acceptance of an offer of judgment under which the district court issued an injunction against DMC concerning its practices for communicating with deaf patients. 2 “Deaf persons are protected by the ADA and [Section 504] not only as patients, but also as companions to patients who are seeking treatment.” Silva v. Baptist Health S. Fla., Inc., 856 F.3d 824, 830 n.3 (11th Cir. 2017) (citing 28 C.F.R. § 36.303(c)(1)); see also Ervine v. Desert View Reg’l Med. Ctr. Holdings, LLC, 753 F.3d 862, 868 (9th Cir. 2014) (same).

 

The Baxes and DMC proceeded to a bench trial on the four remaining claims—the ADA, Section 504, ACA, and (to the extent not based on intentional discrimination) Unruh Act claims. Over the course of three days, the district court heard testimony from nine witnesses and considered 132 exhibits. Of the Baxes, the district court stated that it found them to be “poor historians with contradicting and inconsistent accounts of what happened during their hospitalizations.” It also “question[ed] the[ir] credibility . . . as witnesses.” The district court ultimately issued findings of fact and conclusions of law in favor of DMC on all remaining claims and entered judgment for DMC. It concluded that DMC provided an in-person interpreter almost every time one had been requested and that DMC’s use of in-person interpreters and other communication methods, including VRI and note-writing, had afforded the Baxes effective communication under the relevant statutes. The Baxes timely appealed.

 

II

Court’s Reasoning That Appropriate Auxiliary Aids and Services Were Provided under §504 of the Rehabilitation Act

 

  1. When a person seeks compensatory damages under §504, intentional discrimination i.e. deliberate indifference must be shown.
  2. 504 regulations, 45 C.F.R. §84.4(b)(1),(2), says that to be equally effective, the aids, benefits, and services need not produce the identical result or level of achievement, but rather have to ensure that person with disabilities have an equal opportunity to obtain the same result, to gain the same benefit, and to reap the same level of achievement, in the most integrated setting appropriate to the person’s needs.
  3. Auxiliary aids, per 45 C.F.R. §84.52(d)(3), may include interpreters and other aids for persons with a hearing loss.
  4. Whether an entity provided appropriate auxiliary aids necessary to afford effective communication is a fact intensive exercise. Factors that must be weighed include: the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place.
  5. The requirement that an entity provide effective communication does not mean that deaf patients are entitled to an on-site interpreter every time they ask for it. Instead, the test is whether an individual has received an auxiliary aid sufficient to prevent any real hindrance in her ability to exchange information.
  6. Claims under §504 are governed by the same substantive standard of liability as ADA claims. Therefore, ADA and §504 claims are often addressed together. Similarly, the court relies on ADA regulations to elaborate the substantive standard for effective communication under §504.
  7. Covered entities should consult with individuals with disabilities whenever possible in order to determine what type of auxiliary aid is needed to ensure effective communication.
  8. The ADA regulation, 28 C.F.R. §36.303(c)(1)(ii), applicable to places of public accommodations makes clear that the ultimate decision as to the ultimate auxiliary aid chosen lies with the place of public accommodation so long as the method chosen results in effective communication.
  9. Given the totality of the circumstances, the district court correctly concluded that the hospital effectively communicated with the plaintiffs through the course of their respective treatments using a variety of auxiliary aids, including in-person and remote interpreters and written notes.
  10. Isolated technical glitches do not necessarily establish ineffective communication. Also, credibility of witnesses matters.

 

III

Court’s Reasoning That §504 Does Not Contain Title II of the ADA Primary Consideration Rule

 

  1. DOJ regulation covering title II entities effective communication obligations, 28 C.F.R. §35.160(b)(2), states that such entities have to give primary consideration to the request of the individual with disabilities when determining what type of auxiliary aids to use. 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 by the person requesting the modification will result in a fundamental alteration to the entity’s program or an undue burden.
  2. There are material differences between §504 and title II of the ADA.
  3. In promulgating regulations to implement the ADA title III, which covers places of public accommodations like Doctors Medical Center of Modesto, DOJ explicitly declined to apply the primary consideration rule to title III entities. DOJ guidance further stated that Congress did not intend under title III to impose upon a place of public accommodation the requirement that it give primary consideration to the request of an individual with a disability.
  4. Plaintiffs have not identified any language within §504 to support the contention that it contains a primary consideration requirement for all covered entities, regardless of whether they are an ADA title II public entity or an ADA title III place of public accommodations. Plaintiffs have not indicated that anything in §504 would support such a requirement.
  5. Under plaintiffs propose interpretation of §504, federally funded place of the public accommodations would be subject to a primary consideration requirement, a title II requirement, in direct contravention of Congress’s intention that such a rule not apply to those entities under the ADA.
  6. 504 was enacted well before title II primary consideration regulation was implemented. The primary consideration rule was promulgated in 1991 while §504 was enacted in 1973.

 

IV

The ACA Has a Primary Consideration Rule but That Rule Was Not Applicable at the Time of the Occurrences

 

  1. 1557 of the ACA, 42 U.S.C. §18116(a) provides that an individual shall not, on the ground prohibited under the Rehabilitation Act, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any health program or activity, any part of which is receiving federal financial assistance.
  2. On September 8, 2015, HHS proposed a rule applying title II’s effective communication standards, including the primary consideration rule, to title III entities such as the Doctors Medical Center of Modesto. In adopting the rule, HHS reasoned that it is appropriate to hold all recipients of federal financial assistance from HHS to the higher title II standard as a condition of their receipt of assistance and to hold HHS itself to the same standards to which the department subjects the recipients of its financial assistance.
  3. The HHS rule went into effect July 18, 2016, after Mr. Bax’s hospitalization.
  4. A proposed regulation is entitled to respect if it has the power to persuade. Factors relevant to persuasiveness include: the agency’s thoroughness; the validity of its reasoning; and its consistency with earlier and later pronouncements.
  5. While the rule certainly meets the persuasiveness test, primary consideration is an ADA title II rule and the plain text of §1557’s disability discrimination provision incorporates the Rehabilitation Act but not the ADA. Since, as mentioned above, the Rehabilitation Act does not contain a primary consideration requirement for title III entities, it doesn’t make sense to interpret the ACA as having imposed a primary consideration requirement before the HHS rule became effective. Cases from other circuits saying to the contrary are easily distinguishable.

 

V

Thoughts/Takeaways

 

  1. The ADA and §504 of the Rehabilitation Act are often said by the courts to be interpreted in the same way. However, differences between the two laws exist. In particular, causation, program accessibility, and the primary consideration rule are different.
  2. Another difference is compensatory damages. We know from Cummings, which we discussed here, that emotional distress damages are not available for §504 claims. It is an open question whether they are available for title II claims because the ADA and the Rehabilitation Act are different kinds of legislation (ADA is not spending clause legislation while the Rehabilitation Act is).
  3. As pointed out in the petition for rehearing for Cummings, it is a different situation when it comes to §501 claims. Looking at that statute, the statute clearly suggests that compensatory damages, including emotional distress claims, are available in §501 of the Rehabilitation Act claims. See 29 U.S.C. §791(f).
  4. The Deaf community absolutely despises VRI. However, the DOJ regulations and the DOJ are quite enamored of it. Thus, the applicability of the primary consideration rules matters a great deal.
  5. Whenever dealing with effective communication cases, it is really helpful if expert testimony regarding the English level abilities of a particular plaintiff is utilized.
  6. The Bax decision allows you to make the strong argument that whether appropriate auxiliary aids and services were provided is a question of fact not appropriate for summary judgment.
  7. §504 does not have a primary consideration rule while title II of the ADA does. Title III of the ADA explicitly does not contain a primary consideration rule.
  8. I have not yet read the cases distinguishing the applicability of the primary consideration rule to places of public accommodation. However, this opinion makes you wonder whether a circuit court split exists. I will have to undertake further analysis to see whether I believe that is the case.
  9. The decision quotes Silva I numerous times. We discussed Silva I here. Silva I is must reading for anyone dealing with an effective communication issue.
  10. The ACA, since July 18, 2016, does have a primary consideration rule.
  11. For a discussion of deliberate indifference, see this blog entry discussing the leading case on the question.
  12. I have been blogging quite a bit lately about cases involving Andrew Rozynski of Eisenberg & Baum LLP. He is doing absolutely fascinating work in the area of deaf rights.