I did not anticipate doing another blog entry until the week of Christmas. However, my daughter’s flight into Atlanta is delayed, and so I have some time. I actually relax by writing (weird I know), and this blog entry is extremely short. So why not? My next blog entry will be the greatest hits of 2025, that I will put up Christmas week.

 

The blog entry is a two-for-one. First, a per curiam decision from the United States Supreme Court in Doe v. Dynamic Physical Therapy, LLC, has the potential to be incredibly significant. That decision can be found here. Second, Representative Lawler of New York has introduced the “ADA 30 days to comply act,” that bears looking at. As usual, the blog entry is divided into categories and they are: Doe v. Dynamic Physical Therapy, LLC facts; Doe v. Dynamic Physical Therapy, LLC reasoning; Doe thoughts/takeaways; ADA 30 Days to Comply Act; and ADA 30 Days to Comply Act thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

 

I

Doe v. Dynamic Physical Therapy, LLC Facts

 

Louisiana immunizes healthcare providers from civil liability during public health emergencies. Plaintiff brought suit under a federal law and the Louisiana Court of Appeal held that the state statute barred plaintiff’s federal claims. As we will see below, the Supreme Court was having none of it.

 

II

Doe v. Dynamic Physical Therapy, LLC Reasoning

 

  1. Defining the scope of liability under state law is the prerogative of the State. However, a State has no power to confer immunity from federal causes of action.
  2. The judges in every State are bound to follow federal law, anything in the Constitution or laws of any State to the contrary notwithstanding.
  3. While plaintiff’s federal claim may well fail on other federal grounds, that is a decision for the Louisiana courts to decide in the first instance. It is not the same thing at all as a State immunizing a party from liability from federal claims.

 

III

Doe Thoughts/Takeaways

 

  1. As readers know, over the last few years a significant part of my practice has been working with licensing counsel representing persons with disabilities that are being forced into PHP programs solely because of their disability. I discussed the issues with that in this blog entry (this blog entry is also mentioned in this recent editorial on the same subject from Dr. Lawrence Huntoon). It isn’t unusual to see States immunize from liability people working with PHP’s. People participating on licensing boards might have immunity as well (check your jurisdiction), but this case says that federal law liability cannot be waived by the States.
  2. I can’t recall the last time there was a one-page per curiam Supreme Court decision with such a potentially huge impact.

 

IV

ADA 30 Days to Comply Act

 

  1. Referred to House Judiciary.
  2. Remedies per Title III of the ADA stay the same.
  3. A futile gesture is not necessary. A futile gesture exists if a party has actual notice that a person or organization covered by the Act does not intend to comply with its provisions.
  4. Only applies to architectural barriers.
  5. A person cannot bring an architectural barrier violation lawsuit without meeting certain criteria first: A) the plaintiff has provided to the owner or operator of the accommodation a written notice specific enough to allow the owner operator to identify the barrier and; B) the owner operator has 30 days from when the notice is received to provide the plaintiff a written description outlining improvements that will be made to remove the barrier; or C) the owner or operator fails to remove the barrier or, in case of a barrier, the removal of which requires additional time as a result of circumstances beyond the control or operator, fails to make substantial progress in removing the barrier during the period beginning on the date the owner provide the description and ending 30 days after that date.
  6. The written notice must specify in detail the circumstances under which an individual was actually denied access to a public accommodation, including the address of property, whether request for assistance in removing an architectural barrier to access was made, and whether the barrier to access was a permanent or temporary barrier.
  7. “Notice specific enough,” means that the notice allows such owner or operator to identify the barrier to accessing question.

V

Thoughts/Takeaways on the ADA 30 Days to Comply Act

 

  1. No change in the remedies available under Title III.
  2. A lot of the litigation in this area has to do with standing and intent to return. These cases often turn on nebulous factors trying to establish an intent to return or how actively the plaintiff partook of the business. The notice required in this act goes a long way towards solving those issues.
  3. The act doesn’t change the strict liability nature of Title III architectural barrier litigation.
  4. A person suing on architectural barrier grounds has to give notice to the party potentially being sued and then that party has 30 days to respond to that notice. Once the description is given by the business to the prospective plaintiff, the business has 30 days to make substantial progress in removing the barrier.
  5. The Act in some ways is actually less favorable to businesses from what currently exists. That is, the way the final implementing regulations are currently set up, certain barriers need to be rectified immediately and others can be prioritized for later. This particular act seem to suggest that all barriers are the same in terms of the priority to fix.
  6. The legislation is definitely worth following.
  7. Introduced by a Republican but it does have bipartisan backing.
  8. Not clear what “substantial progress means.”
  9. Logical to assume that DOJ would be responsible for any final implementing regulations carrying out this law, assuming it becomes law.
  10. Still very early in the legislative process.