Federal Magistrate Judge Recommends Allowing Discrimination Claim Against Health System for Failure to Provide Materials in Braille to Proceed

Last month, a magistrate judge for the United States District Court for the Middle District of North Carolina recommended that plaintiffs’ claim of discrimination for failure to provide materials in Braille be permitted to proceed against a North Carolina healthcare system. See Bone v. Univ. of N. Carolina Health Care Sys., No. 1:18CV994, 2019 WL 4393531, at *1 (M.D.N.C. Sept. 13, 2019).

The plaintiffs brought their claims under Title III of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and Section 1557 of the Patient Protection and Affordable Care Act, alleging that the healthcare systems “deny blind individuals an equal opportunity to access their health care information.” See id. The plaintiffs also sought compensatory damages pursuant to Section 504 and Section 1557 and injunctive relief pursuant to Title III.

In evaluating plaintiffs’ claims, the magistrate judge acknowledged that the current regulation under Section 1557—by cross-referencing to other regulations—requires covered healthcare providers to “give primary consideration to the requests of individuals with disabilities.” See id. at *20 (citing 28 C.F.R. § 35.160(b)(2)). Therefore, according to the magistrate judge, “[a]lthough Section 1557 does not mandate the provision of Braille documents, it does require ‘accessible formats, in a timely manner.’” See id. As such, the magistrate judge ruled that plaintiffs had stated a claim under Section 1557, because the healthcare system had allegedly failed to provide equally effective alternative methods for reading print documents in a timely fashion. See id.

Importantly, the magistrate judge permitted plaintiffs’ claim for compensatory damages to also proceed under a “deliberate indifference” standard, because the plaintiffs had adequately alleged that the defendants “knew that harm to a federally protected right was substantially likely and failed to act on that likelihood.” See id. at *17 (quoting Silva v. Baptist Health S. Fla., Inc., 856 F.3d 824, 831 (11th Cir. 2017)).

Drew Stevens regularly advises hospitals and health systems on compliance issues related to Title VI of the Civil Rights Act of 1964, Title III of the Americans with Disabilities Act, and Section 1557 of the Patient Protection and Affordable Care Act. He also represents health systems in litigation and investigations brought under these statutes by the Department of Justice and the Office for Civil Rights at HHS. Mr. Stevens is a member of his firm’s Hospitals and Health Systems Industry Team. Mr. Stevens graduated with high honors from Emory University School of Law in 2014 where he was awarded the ABA/BNA Award for Excellence in the Study of Health Law and the Dean’s Award in Regulation of Healthcare Providers.

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