Bustos v. Dignity Health

          ORDER

          David G, Campbell Senior United States District Judge.

         Plaintiff Daniel Bustos and his daughter Constancia assert disability discrimination claims against Defendant Dignity Health. Doc. 1. Defendant moves for summary judgment. Doc. 43. The motion is fully briefed (Docs. 51, 55), and oral argument will not aid in the Court's decision. See Fed R. Civ. P. 78(b). For reasons stated below, the Court will deny the motion.

         I. Background.

         Daniel lost his hearing at the age of three. His primary and preferred form of communication is American Sign Language (“ASL”). Constancia is not a licensed ASL interpreter, but is proficient in ASL and sometimes interprets for Daniel.

         On September 13, 2015, Plaintiffs went to Defendant's hospital in Chandler, Arizona because Daniel was experiencing chest pain. He was admitted to the hospital and underwent heart surgery to repair a blocked artery. He was discharged one day after the surgery.

         Plaintiffs filed suit in August 2017, claiming that Defendant discriminated against them based on Daniel's deafness by failing to provide an effective means of communication and forcing Constancia to serve as an interpreter. Doc. 1. Plaintiffs allege that the hospital's video remote interpreting (“VRI”) system never worked and hospital staff denied Plaintiffs' requests for an in-person interpreter. Id. at 5-8. The complaint asserts claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq., the Rehabilitation Act of 1973 (“Rehab Act”), 29 U.S.C. § 794, the Patient Protection and Affordable Care Act (“ACA”), 42 U.S.C. § 18116, and the Arizonans with Disabilities Act (“AzDA”), A.R.S. § 41-1492. Id. at 8-15. Plaintiffs seek declaratory and injunctive relief, compensatory damages, and attorneys' fees and costs. Id. at 15-17.

         II. Summary Judgment Standard.

         Summary judgment is warranted where the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Only disputes over facts that might affect the outcome of the suit will preclude summary judgment, and the disputed evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The evidence must be viewed in the light most favorable to the nonmoving party, and all justifiable inferences are drawn in that party's favor because “[c]redibility determinations, the weighing of evidence, and the drawing of inferences from the facts are jury functions[.]” Id. at 255; see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         III. Discussion.

         A. Discrimination Under the Relevant Statutes.

         Defendant does not dispute that it is subject to the anti-discrimination provisions of the ADA, Rehab Act, ACA, and AzDA, and the parties agree that the elements of a discrimination claim under these statutes are similar. Docs. 47 at 51, 51 at 2 n.1; see Updike v. Multnomah County, 870 F.3d 939, 949 (9th Cir. 2017) (ADA expressly modeled after Rehab Act); Schmitt v. Kaiser Found. Health Plan of Wash., No. C17-1611-RSL, 2018 WL 4385858, at *1 (W.D. Wash. Sept. 14, 2018) (ACA and Rehab Act claims are the same); Muhaymin v. City of Phoenix, No. CV-17-04565-PHX-SMB, 2019 WL 699170, at *8 (D. Ariz. Feb. 20, 2019) (AzDA is consistent with the ADA); Duvall v. County of Kitsap, 260 F.3d 1124, 1135-36 (9th Cir. 2001) (addressing the plaintiff's ADA, Rehab Act, and state law discrimination claims together). To prove that a defendant violated these laws, the disabled plaintiff must show that he was denied the defendant's services because of the disability. 42 U.S.C. § 12182(a); 29 U.S.C. § 794(a); 42 U.S.C. § 18116(a); A.R.S. § 41-1492.02(B); see Updike, 870 F.3d at 949; Duvall, 260 F.3d at 1135-36.

         A hospital is liable to deaf patients where it fails to provide auxiliary aids needed for “effective communication.” 42 U.S.C. § 12182(b)(2)(A); 28 C.F.R. § 36.303(c)(1); 45 C.F.R. § 92.202(a); see Robles v. Domino's Pizza, LLC, 913 F.3d 898, 906 (9th Cir. 2019). The type of auxiliary aid “necessary to ensure effective communication will vary in accordance with 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.” 28 C.F.R. § 36.303(c)(1)(ii). Available auxiliary aids for deaf individuals include qualified in-person interpreters, VRI, computer-aided transcription services, written materials, and the exchange of handwritten notes. 42 U.S.C. § 12103(1); 28 C.F.R. §§ 35.104(a), 36.303(b); see Updike, 870 F.3d at 949-50; Arizona v. Harkins Amusement Enters., Inc., 603 F.3d 666, 670 (9th Cir. 2010). “In determining what type of auxiliary aid is necessary, a public entity must ‘give primary consideration' to the accommodation requested by the disabled individual.” Updike, 870 F.3d at 950 (quoting 28 C.F.R. § 35.160(b)(2)); see Duvall, 260 F.3d at 1137; 28 C.F.R. § Pt. 35, App. A.

         Federal regulations implementing the ADA prohibit a hospital from requiring a deaf patient to bring another person to interpret for him. 28 C.F.R. § 36.303(c)(2). The regulations also prohibit the hospital from relying on the patient's companion to interpret except in an emergency situation where no interpreter is available, or where the patient specifically requests that the companion provide such assistance, the companion agrees to do so, and reliance on the assistance is appropriate under the circumstances. 28 C.F.R. § 36.303(c)(3)(ii)-(iii); see also 45 C.F.R. § 92.201(e) (ACA regulations prohibiting the same with respect to individuals with limited English proficiency).

         B. Plaintiffs' ...