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Bone v. University of North Carolina Health Care System

United States District Court, M.D. North Carolina

September 13, 2019

JOHN BONE, et al., Plaintiffs,



         This case comes before the undersigned United States Magistrate Judge for a recommendation on the “Motion to Dismiss [pursuant to Federal Rule of Civil Procedure] 12(b)(1) and 12(b)(6)” (Docket Entry 20 (parenthesis omitted)) filed by Defendant University of North Carolina Health Care System (“Defendant UNCHCS”) (“UNCHCS Dismissal Motion”) and the “Motion to Dismiss Amended Complaint” (Docket Entry 28) filed by Defendant Nash Hospitals, Inc. (“Defendant NHI”) (“NHI Dismissal Motion”).[1] For the reasons that follow, the Court should deny the UNCHCS Dismissal Motion and should grant in part and should deny in part the NHI Dismissal Motion.

         I. BACKGROUND

         Plaintiffs have brought this action pursuant to Titles II and III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-12134, 12181-12189, Section 504 of the Rehabilitation Act (“Section 504”), 29 U.S.C. § 794(a), and Section 1557 of the Patient Protection and Affordable Care Act (“Section 1557”), 42 U.S.C. § 18116, contending that Defendants “deny[] blind individuals an equal opportunity to access their health care information.” (Docket Entry 18, ¶ 1.)[2]

         According to the Amended Complaint, Plaintiff John Bone (“Plaintiff Bone”) is “blind and uses Braille to make and receive written communications.” (Id., ¶ 7.) Similarly, the Amended Complaint alleges that Plaintiff Timothy Miles (“Plaintiff Miles”) is “blind and cannot read standard print. He relies on large print or electronic documents that he can enlarge to make and receive written communications.” (Id., ¶ 8.) The Amended Complaint identifies Plaintiff National Federation of the Blind (“NFB”) as a non-profit corporation that “promotes the general welfare of the blind by assisting the blind in their efforts to integrate themselves into society on terms of equality and by removing barriers that result in the denial of opportunity to blind persons in virtually every sphere of life, including education, health care, employment, family and community life, transportation, and recreation.” (Id., ¶ 9; see also Id. (“The vast majority of [Plaintiff NFB's] approximately 50, 000 members [including Plaintiff Bone and Plaintiff Miles] are blind persons who are recognized as a protected class under federal laws.”).) Finally, the Amended Complaint describes Plaintiff Disability Rights of North Carolina (“DRNC”) as a non-profit corporation “authorized to pursue administrative, legal, and other appropriate remedies to protect and advocate for the legal rights of individuals with disabilities and to redress incidents of discrimination in the state.” (Id., ¶ 11; see also id., ¶ 12 (“[Plaintiff DRNC] represents the interests of its blind constituents in North Carolina who require medical documents in alternative formats.”).)

         In turn, the Amended Complaint alleges that Defendant UNCHCS “is an integrated health care system owned by the state of North Carolina[, ] established by state law, N.C. G.S. § 116-37. [Defendant UNCHCS] currently consists of UNC Hospitals and its provider network . . . and eleven affiliate hospitals and hospital systems across the state, including [Defendant NHI], ” with its “principal place of business [] in Chapel Hill, North Carolina.” (Id., ¶ 13.) The Amended Complaint further identifies Defendant NHI as a “nonprofit hospital affiliate” of Defendant UNCHCS, which “employs and contracts with numerous providers for the delivery of medical services in its facilities, ” with a “principal place of business [] in Rocky Mount, North Carolina.” (Id., ¶ 14.) According to the Amended Complaint, both Defendants UNCHCS and NHI receive “federal financial assistance from the Department of Health and Human Services.” (Id., ¶ 60.)

         The Amended Complaint asserts that “Titles II and III of the ADA, Section 504, and Section 1557 require [Defendants] to communicate in an equally effective manner with all blind individuals, and to ensure that their contractors . . . do the same.” (Id., ¶ 2.) Moreover, the Amended Complaint maintains that Defendants and their contractors violate these laws by “depriv[ing] blind individuals of full and equal access to their medical services, programs, and activities. They provide critical communications, such as health care notices, visit summaries, follow-up instructions, forms, questionnaires, invoices, and other types of documents, only in standard print, a format inaccessible to blind individuals.” (Id., ¶ 3.) In particular, the Amended Complaint states that:

ineffective communication with blind . . . patients . . . compromises their ability to review, and, if necessary, respond to communications on a timely basis, and forces them to rely on and divulge private medical and financial information to sighted third parties for assistance. This disrupts blind patients' access to their health care, prevents them from understanding and following medical instructions, and results in unfair financial penalties for not being able to access and pay medical bills on time, all leading to significant financial and personal hardship.


         To support its claims, the Amended Complaint sets forth the following facts relevant to the Dismissal Motions:

A. Plaintiff Bone
[Plaintiff] Bone [is] a resident of Rocky Mount, North Carolina, [and] relies on [Defendant NHI] for his emergency medical needs.
[He] visited Nash General Hospital to receive emergency medical services in December 2016, and again in or about June and July 2017. During [Plaintiff] Bone's 2016 visit [and 2017 hospitalization], he received services from [Defendant NHI] directly and from its contractors . . . . Upon information and belief, all of these entities are either components of [Defendant UNCHCS] and/or [Defendant NHI].
During these two hospital visits, [Plaintiff] Bone informed hospital and provider staff that he was blind and needed to receive medical bills in Braille. The staff did not ask [Plaintiff] Bone to take any additional steps to obtain medical bills in Braille.
Neither the hospital nor its contractors initially sent bills to [Plaintiff] Bone in Braille. Instead, [Plaintiff] Bone received all of the bills related to his hospital visits in print.
[Plaintiff] Bone could not read the print bills and did not know how much money he owed or who to pay for his two emergency medical visits.
The hospital and its contractors continued sending [Plaintiff] Bone second and final bill notices in print; he accrued late fees; and [Defendant NHI] and at least three of its contractors referred him to collection agencies. The creditors pursued payment from [Plaintiff] Bone and threatened him.
Only after [Plaintiff Bone's counsel] wrote to [Defendant NHI] did it agree to provide Braille invoices for previously sent bills. None of [Defendant NHI]'s contractors, however, have provided Braille invoices. Thus, [Plaintiff] Bone still does not know how much money he owes for his two emergency medical visits. Furthermore, [Defendant UNCHCS, Defendant NHI], and their contractors have all failed to address whether [Plaintiff] Bone could expect to receive Braille documents going forward without attorney involvement. They have not provided any assurances that the hospital system would ensure timely provision of alternative formats on a systemic basis.

         (Id., ¶¶ 15-21 (internal paragraph No. omitted).)

B. Plaintiff Miles
[Plaintiff] Miles resides in Chapel Hill, North Carolina and is a regular patient of several different medical practices operating out of [Defendant] UNC[HCS] [, which] [h]e visits . . . at least once every six months and often more frequently. For example, between June and August 2018, [Plaintiff] Miles visited three different UNC practices. . . .
During visits to [Defendant] UNC[HCS] providers, [Plaintiff] Miles receives standard print versions of documents and often asks the staff for large print versions of the documents instead. These include notices he is asked to sign, forms, visit summaries, and follow-up instructions. [Defendant] UNC[HCS] providers consistently refuse to provide [Plaintiff] Miles with these documents in large print. Some providers have offered to read documents aloud to [Plaintiff] Miles, but this is not effective for [Plaintiff] Miles, who, particularly in the case of visit summaries and follow-up instructions, wants to have a document to take home with him to review after his visits. He does not want to be forced to memorize all of the information contained in these documents. With respect to notices, these documents are often long and provider staff typically paraphrase and attempt to summarize the contents, rather than read the entire notice verbatim. Such summarizing does not provide [Plaintiff] Miles with all of the same information contained in the standard print notices.
[Plaintiff] Miles also receives all of his invoices from [Defendant] UNC[HCS] providers in standard print. These invoices typically come from [Defendant] UNC[HCS]'s billing department directly and [Plaintiff Miles] has called [Defendant] UNC[HCS] to request large print copies. For example, in December 2017, [Plaintiff] Miles called the billing department to ask for an end of year summary of all of his bills in large print. The billing department responded by telling [Plaintiff] Miles that it would ‘look into it.' He never heard back from the billing department about this request or received large print documents as a result. On other occasions, the billing department has told [Plaintiff] Miles that its medical billing system does not allow for large print billing statements. Only following a letter from [Plaintiff] Miles's counsel regarding [Defendant] UNC[HCS]'s failure to provide accessible formats, did [Defendant] UNC[HCS] mail [Plaintiff] Miles large print documents related to some recent visits with [Defendant] UNC[HCS] providers.
[Defendant] UNC[HCS] has failed to ensure that [Plaintiff] Miles receives large print documents in a timely manner, independent of attorney involvement. For example, after [Defendant] UNC[HCS] mailed [Plaintiff] Miles these select large print documents, [Plaintiff] Miles visited two different [Defendant] UNC[HCS] practices on or about October 10, 2018, and October 19, 2018. During each visit, [Plaintiff] Miles requested large print documents, but was told by staff that they could not provide them. During one of his visits, [Plaintiff] Miles could not access the provider's instructions that he received in standard print at the end of his visit. Although staff attempted to read the instructions out loud to him, he was not feeling well at the time and believed he was unlikely to be able to remember all of the instructions. [Plaintiff] Miles wants to be able to access his health care information independently, without having to disclose personal medical information to third parties. He could do so if [Defendant] UNC[HCS] and its contractors provided him with large print documents.

         (Id., ¶¶ 23-26 (internal paragraph No. omitted).)

         Based on its allegations, the Amended Complaint requests that the Court: (1) issue a declaratory judgment; (2) order injunctive relief; (3) award compensatory damages and attorneys fees; and (4) grant other “just and proper” relief. (Id. at 22-23.) Defendants have moved to dismiss. (Docket Entries 20 and 28; see also Docket Entry 24 (Substituted Memorandum by Defendant UNCHCS); Docket Entry 29 (Memorandum by Defendant NHI).) Plaintiffs have responded (Docket Entries 26 and 32), and Defendants have replied (Docket Entries 27 and 33).[3]


         A. Motion to Dismiss Standards

         Pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure (“Rules”), Defendant UNCHCS moves to dismiss for lack of subject matter jurisdiction, specifically due to Plaintiffs' lack of standing, and for failure to state a claim in that (1) Defendant UNCHCS “does not ‘control' [Defendant NHI], ” (2) Defendant UNCHCS did not violate any “clearly established right of Plaintiffs under Title II of the ADA, Section 504 . . . or Section 1557, ” (3) Title II of the ADA, Section 504, and Section 1557 do not require Defendant UNCHCS to “fundamentally alter the nature of its services programs or make additional modification sought by Plaintiff[s], ”[4] (4) Plaintiffs have not alleged discrimination because of disability, (5) Plaintiffs suffer no current injury, (6) Plaintiffs fail to state a claim for prospective relief, and (7) Plaintiffs NFB and DRNC “fail to state a claim for nonparty individuals.” (Docket Entry 24 at 2-3.)

         Similarly, Defendant NHI moves to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction due to lack of standing and mootness, by asserting that (i) it has “provided the requested accommodation, ” (ii) it “has taken systemic measures to ensure effective communication with [Plaintiff] Bone and other blind patients in the future, ” and (iii) “there is no evidence of harm to [Plaintiff] Bone.” (Docket Entry 29 at 9.) Defendant NHI also moves to dismiss this matter pursuant to Rule 12(b)(6) for failure to state a claim under Section 1557 because “Braille communication is not required under [Section 1557].” (Id.)

         1. Rule 12(b)(1) Standard

         Pursuant to Federal Rule of Civil Procedure 12(b)(1), a party may contest the Court's subject matter jurisdiction, including by challenging a plaintiff's standing. See, e.g., White Tail Park, Inc. v. Stroube, 413 F.3d 451, 459 (4th Cir. 2005). “When a Rule 12(b)(1) motion challenge is raised to the factual basis for subject matter jurisdiction, the burden of proving subject matter jurisdiction is on the plaintiff.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). However, the United States Court of Appeals for the Fourth Circuit has explained that, “when a defendant asserts that the complaint fails to allege sufficient facts to support subject matter jurisdiction, the trial court must apply a standard patterned on Rule 12(b)(6) and assume the truthfulness of the facts alleged.” Kerns v. United States, 585 F.3d 187, 193 (4th Cir. 2009) (italics in original).

         “On the other hand, when the defendant challenges the veracity of the facts underpinning subject matter jurisdiction, the trial court may go beyond the complaint, conduct evidentiary proceedings, and resolve the disputed jurisdictional facts.” Id.; see also White Tail Park, 413 F.3d at 459 (explaining that the “district court may consider evidence outside the pleadings without converting the proceeding to one for summary judgment” (internal quotation marks omitted)). Nonetheless, the Fourth Circuit has stated that, “when the jurisdictional facts are inextricably intertwined with those central to the merits, the court should resolve the relevant factual disputes only after appropriate discovery, unless the jurisdictional allegations are clearly immaterial or wholly unsubstantial and frivolous.” Kerns, 585 F.3d at 193.

         2. Rule 12(b)(6) Standard

         To avoid Rule 12(b)(6) dismissal, a complaint must contain sufficient factual allegations “to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To qualify as plausible, a claim needs sufficient factual content to support a reasonable inference of the defendant's liability for the alleged misconduct. Id. At the same time, the complaint need not contain detailed factual recitations, as long as it provides the defendant “fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (internal quotation marks and alteration omitted).

         In reviewing a motion to dismiss, the Court must “accept the facts alleged in the complaint as true and construe them in the light most favorable to the plaintiff.” Coleman v. Maryland Ct. of App., 626 F.3d 187, 189 (4th Cir. 2010), aff'd sub nom., Coleman v. Ct. of App. of Md., 566 U.S. 30 (2012). The Court must also “draw all reasonable inferences in favor of the plaintiff.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (internal quotation marks omitted). “At bottom, determining whether a complaint states . . . a plausible claim for relief . . . will ‘be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 679).

         In ruling on a Rule 12(b)(6) motion, “a court evaluates the complaint in its entirety, as well as documents attached or incorporated into the complaint.” E.I. du Pont, 637 F.3d at 448. The Court likewise may consider documents “attached to the motion to dismiss, so long as they are integral to the complaint and authentic.” Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). Generally, a “court cannot go beyond these documents” without “convert[ing] the motion into one for summary judgment, ” an action from which courts should refrain “where the parties have not had an opportunity for reasonable discovery.” E.I. du Pont, 637 F.3d at 448. Notably, a Rule 12(b)(6) motion “tests the sufficiency of a complaint, ” but “does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992).

         B. Standing

         “[T]he question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975). “This inquiry involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise.” Id. “In both dimensions it is founded in concern about the proper -- and properly limited -- role of the courts in a democratic society.” Id. With respect to the constitutional limitations, the standing analysis addresses justiciability, i.e., “whether the plaintiff has made out a ‘case or controversy' between himself and the defendant within the meaning of Art[icle] III.” Id.

         To meet that requirement, Plaintiffs must sufficiently allege that they “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, U.S., 136 S.Ct. 1540, 1547 (2016). “The party invoking federal jurisdiction bears the burden of establishing these elements.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). “When a complaint is evaluated at the pleading stage, however, ‘general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss [the Court] presume[s] that general allegations embrace those specific facts that are necessary to support the claim.'” Hutton v. National Bd. of Exam'rs in Optometry, Inc., 892 F.3d 613, 620 (4th Cir. 2018) (quoting Lujan, 504 U.S. at 561). “Accordingly, [the Court] accept[s] as true the allegations for which there is sufficient factual matter to render them plausible on their face.” Id. (alteration and internal quotation marks omitted).

         “The standing requirement must be satisfied by individual and organizational plaintiffs alike.” White Tail, 413 F.3d at 458. The Supreme Court has recognized that “an association may have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy.” Warth, 422 U.S. at 511. “Additionally, an organizational plaintiff may establish associational standing to bring an action in federal court on behalf of its members when: (1) its members would otherwise have standing to sue as individuals; (2) the interests at stake are germane to the group's purpose; and (3) neither the claim made nor the relief requested requires the participation of individual members in the suit.” White Tail Park, 413 F.3d at 458 (internal quotation marks omitted).

         1. Defendant UNCHCS

         i. Plaintiff Bone

         In its dismissal motion, Defendant UNCHCS asserts that Plaintiff Bone lacks standing for his claims against it, because he “does not have an injury in fact that is fairly traceable to [Defendant] UNCHCS or [that] is likely to be redressed by a favorable judicial decision.” (Docket Entry 24 at 10.)[5]Specifically, Defendant UNCHCS contends that (i) “Plaintiff Bone does not claim that [Defendant] UNCHCS has denied him billing documents in Braille” (id.), (ii) Plaintiff Bone “has not alleged that [Defendant] UNCHCS has contractual relationships with [Defendant NHI]'s contractors” (id. at 9), (iii) Defendant UNCHCS “was not managing billing services on behalf of [Defendant NHI] ¶ 2016 and 2017” (id. at 10), and (iv) “Plaintiff Bone's assertion that he has been denied assurances [by Defendant UNCHCS and Defendant NHI] that he will receive his billing in Braille in the future is speculative at best” (id.).

         Beginning with Defendant UNCHCS's attack on the adequacy of Plaintiffs' allegations regarding Braille billing documents, the Amended Complaint states the following:

. . . In failing to provide blind patients like [Plaintiff] Bone . . . with accessible formats such as Braille . . . [Defendant] UNC[HCS] has refused to provide the auxiliary aids and services necessary to communicate with blind patients in an equally effective and timely manner that protects their privacy and independence.
Examples of [Defendant] UNC[HCS]'s, . . . inaccessible communications include . . . billing information . . . .

         (Docket Entry 18, ¶¶ 34-35 (internal paragraph No. omitted); accord id., ¶¶ 66-67, 82-83.) Further, as to Defendant UNCHCS's relationship with Defendant NHI's contractors, the Amended Complaint alleges:

[Plaintiff] Bone visited [Defendant NHI] in December 2016, and again in or about June and July 2017. During [Plaintiff] Bone's 2016 visit, he received services from [Defendant NHI] directly and from its contractors . . . . [and, d]uring [Plaintiff] Bone's 2017 hospitalization, he received services again from [Defendant] NHI directly and from its contractors . . . . Upon information and belief, all of ...

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