BONE v. UNIVERSITY OF NORTH CAROLINA HEALTH CARE SYSTEM

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JOHN BONE, et al., )

)

Plaintiffs, )

)

v. ) 1:18cv994

)

UNIVERSITY OF NORTH CAROLINA )

HEALTH CARE SYSTEM, et al., )

)

Defendants. )

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

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

1 Plaintiffs also filed a Motion for Leave to File a Surreply

(Docket Entry 40), which will be granted.

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

2 The Amended Complaint uses the term “blind” “in the broadest

sense to include all persons who, under federal civil rights laws,

suffer from a vision-related disability that requires alternative

methods to access print.” (Docket Entry 18, ¶ 4.)

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(“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 “non-

profit 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

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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.

(Id.)

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].

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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 numbers 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

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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

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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 numbers 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

II. DISCUSSION

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

3 Plaintiffs also filed a motion for leave to file a surreply

asserting that, “[i]n the interest of fairness, Plaintiffs should

be allowed to contest the extensive, new evidence raised in

[Defendant NHI’s] reply brief.” (Docket Entry 40 at 2.)

Plaintiffs attached their proposed Surreply along with supporting

documents (Docket Entries 40-1, 40-2, 40-3). Defendant NHI

responded (Docket Entry 41) and Plaintiffs replied (Docket Entry

42).

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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.)

4 Although Defendant UNCHCS mentions this argument initially

in its substituted memorandum (see Docket Entry 24 at 2), it fails

to develop the argument (see id. at 8-21; see also Docket Entry 27

at 1-15).

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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

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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

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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

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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

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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

5 Defendant UNCHCS also makes references to the ripeness

doctrine in its arguments regarding both Plaintiffs Bone and Miles.

(See Docket Entry 24 at 10, 13.) “Analyzing ripeness is similar to

determining whether a party has standing,” Miller v. Brown, 462

F.3d 312, 319 (4th Cir. 2006), but Defendant UNCHCS fails to

develop any ripeness argument (see Docket Entry 24 at 8-13).

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“was not managing billing services on behalf of [Defendant NHI] in

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 numbers 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 these

entities are either components or contractors of

[Defendant] UNC[HCS] and/or [Defendant NHI].

(Id., ¶ 16.) At the pleading stage, Plaintiffs thus have

sufficiently linked the failure to provide Plaintiff Bone with

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Braille billing documents to Defendant UNCHCS, through its

relationship with Defendant NHI and Defendant NHI’s contractors.

Next, Defendant UNCHCS argues that Plaintiff Bone lacks an

injury “fairly traceable” to it, because it did “not manag[e]

billing services on behalf of [Defendant NHI] in 2016 and 2017.”

(Docket Entry 24 at 10.) However, Defendant UNCHCS has submitted

evidence which appears to contradict that position. According to

the declaration of Chris Ellington, President of Network Hospitals

for Defendant UNCHCS, (“Ellington Declaration”), Defendant UNCHCS

entered into a Management Services Agreement (“MSA”) with Defendant

NHI on April 1, 2014. (Docket Entry 20-1, ¶ 3; see also Docket

Entry 20-2 at 1.) The MSA states, under “Section 2. Management

Services”: Defendant UNCHCS “will render the [m]anagement

[s]ervices set forth below . . . (d) [m]anagement and

administration of . . . NHI’s . . . business office functions,

including, but not limited to, billing and collection activities,

accounting and bookkeeping functions, and accounts payable and

purchasing activities . . . .” (Docket Entry 20-2 at 2-3 (emphasis

added).) Moreover, Plaintiffs have identified Defendant NHI as an

“affiliate hospital” of Defendant UNCHCS. (See Docket Entry 18,

¶ 13; see also Docket Entry 26 at 10 (asserting that “[Defendant]

UNC[HCS] and [Defendant NHI] promote [Defendant NHI] as a joint

venture between them, called ‘Nash UNC Health Care’”).) Under

these circumstances, this Court need not resolve this traceability

issue on a motion to dismiss. See Leskovisek v. Illinois Dep’t of

Transp., 305 F. Supp. 3d 925, 935 (C.D. Il. 2018) (refusing to

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determine at dismissal stage whether the defendant, alleging lack

of control, could face liability for failing to accommodate the

plaintiffs).

Lastly, Defendant UNCHCS challenges as “speculative” (Docket

Entry 24 at 10) Plaintiff Bone’s assertion that “he has been denied

assurances that he will receive his billing in Braille in the

future” (id.). In that regard, Defendant UNCHCS argues that

“[Defendant NHI]’s alleged failures to provide [Plaintiff Bone]

with documents in his preferred format were discrete acts, [and

therefore] the continuing[]violation doctrine is inapplicable.”

(Id.) Plaintiffs respond by denying that they have relied on the

continuing violation doctrine, which they describe as “inapposite

because [Defendant] UNC[HCS] has not argued that Plaintiffs’ claims

are untimely.” (Docket Entry 26 at 9 n.2.) Defendant UNCHCS does

not address this matter in its reply. (See Docket Entry 27 at 1-

15.)

As Plaintiffs have indicated, the continuing violation

doctrine generally applies to charges of untimeliness. See Holland

v. Washington Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007)

(recognizing that “[t]he continuing violation theory allows for

consideration of incidents that occurred outside the time bar when

those incidents are part of a single, ongoing pattern of

discrimination”).) Defendant UNCHCS’s argument on this front does

not concern the timeliness of Plaintiff’s claims; rather, it

appears aimed at allegations in the Amended Complaint that

Defendants’ actions “constitute[d] an ongoing and continuous

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violation of” Title II, Section 504, and Section 1557 (Docket Entry

18, II 39, 71, 87). Those allegations, in turn, seemingly relate

to the principle that “[a] plaintiff seeking injunctive relief

shows redressability by ‘alleg[ing] a continuing violation or the

imminence of a future violation’ of the statute at issue.” Friends

of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149,

162 (4th Cir. 2000) (quoting Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 108 (1998)). Defendant UNCHCS evidently

contends that Plaintiff Bone lacks standing to pursue injunctive

relief against Defendant UNCHCS because he has failed to allege “an

injury in fact that is... likely to be redressed by a favorable

judicial decision” (Docket Entry 24 at 10), by failing to

adequately allege a “continuing violation” (id.).

However, because Plaintiff Bone also seeks compensatory

damages against Defendant UNCHCS (see Docket Entry 18, 42, 73,

89), Plaintiff Bone would possess standing to pursue claims against

Defendant UNCHCS even if the Court ultimately denies injunctive

relief because he has failed to show “a continuing violation or

the imminence of a future violation,” Friends of the Earth, 204

F.3d at 162. See Weigel v. Maryland, 950 F. Supp. 2d 811, 827 (D.

Md. 2013) (recognizing that “standing for retrospective relief can

be based on past injuries alone”), appeal dismissed, No. 13-1903

(4th Cir. June 10, 2014).°

° Defendant UNCHCS raises the same basic challenge as to

Plaintiff Miles (see Docket Entry 24 at 12), who (like Plaintiff

Bone) also seeks compensatory damages (see Docket Entry 18, {If 42,

(continued...)

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Accordingly, the Court should deny Defendant UNCHCS’s request

to dismiss Plaintiff Bone’s claims against Defendant UNCHCS for

lack of standing.

ii. Plaintiff Miles

Defendant UNCHCS next argues that Plaintiff Miles has not

alleged a current injury and therefore lacks standing to bring

claims against Defendant UNCHCS (Docket Entry 24 at 10-11), because

(i) of the “highly speculative” nature of his alleged injury, given

that he “has not availed himself of all possible modes of

assistance in the past” (id. at 13) and (ii) “[e]ven if [Plaintiff]

Miles suffered an injury, the prior instances in which he

suggest[s] that he was injured are not sufficiently precise or

specific to establish the necessity for injunctive relief” (id.).

Defendant UNCHCS bases its first argument on evidence from Shane

Rogers, the Director of Patient Experience, Patient Relations at

University of North Carolina Hospitals (“Rogers Declaration”).

(See id. at 11; see also Docket Entry 20-3.)

The Rogers Declaration states that

[i]n October 2018, [he] became aware that [Plaintiff]

Miles requested visit summaries, instructions and bills

in large print, i.e. 16 point font. [Rogers] spoke to

[Plaintiff] Miles’s attorney . . . at that time and was

advised that [Plaintiff] Miles had not received visit

summaries and instructions related to two medical visits

in July 2018. [Rogers] communicated with the clinics and

was advised that the requested communications were being

sent to [Plaintiff] Miles in the 16 point font. [Rogers]

6(...continued)

73, 89). As a result, this standing challenge falls short as to

Plaintiff Miles (just as it does regarding Plaintiff Bone). See

Weigel, 950 F. Supp. 2d at 827.

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also communicated with Patient Financial Services to make

sure that itemized bills would be sent in the requested

16 point font.

(Docket Entry 20-3, ¶ 3.)

Next, the Rogers Declaration references an “October 16, 2018

letter” sent to Plaintiff Miles which included “UNC Health Care’s

Notice of Nondiscrimination [(“Notice”)], in 16-point font print.”

(Id., ¶ 4.) According to the Rogers Declaration, the Notice

advis[ed] [Plaintiff] Miles that [Defendant UNCHCS]

provides free aids and services to people with

disabilities to communicate effectively[,] including

written information in other formats [to include large

print], and [further] advis[ed] him that if he needed

these services to contact the Director of Patient

Relations in person or by mail, fax, or e-mail along with

specific contact information.

(Id.) The Rogers Declaration further reports that “[Plaintiff]

Miles did not contact [Rogers] after [he] sent the October 16, 2018

letter.” (Id., ¶ 5; see also id., ¶ 6 (denying knowledge, prior to

filing of this action, of Plaintiff Miles visiting Defendant

UNCHCS’s clinic on October 11, 2018, and October 19, 2018).)

Lastly, the Rogers Declaration asserts that

[o]n January 30, 2019, [Rogers] received a call from

[Plaintiff] Miles, who reported that he was in [Defendant

UNCHCS’s] Dermatology Clinic. [Rogers] instructed the

staff at the clinic how to print instructions in the 16

point font that [Plaintiff] Miles requested[, and] then

left a voice mail message for [Plaintiff] Miles later

that same day asking [Plaintiff Miles] to call [Rogers]

if [Plaintiff Miles] had not received everything he

needed. [Plaintiff] Miles did not return [the] call.

(Id., ¶ 7.)

In response to Defendant UNCHCS’s contention that Plaintiff

Miles failed to “respond to [its] offer of assistance” (Docket

-19-

Entry 24 at 11), Plaintiffs tendered the following statements via

a declaration from Plaintiff Miles (“Plaintiff Miles Declaration”)

(Docket Entry 26-3):

On the 10th and 19th of October, 2018, [Plaintiff

Miles] visited a [Defendant] UNC[HCS] clinic and UNC

Urgent Care. Every document [he] received was

inaccessible, including consent forms, visit summaries,

notices of [his] rights, and financial information.

On or about October 20, 2018, [Plaintiff Miles]

received a letter from [Defendant] UNC[HCS]’s Director of

Patient Relations, Shane Rogers. [Plaintiff Miles]

underst[oo]d the letter to have instructed [him] to work

out [his] access issues directly with the clinics while

[Defendant] UNC[HCS] continued to investigate how to

provide [him] with large print. [Plaintiff Miles] did

not hear anything further from Mr. Rogers for about three

months.

(Id., ¶¶ 15-16 (internal paragraph numbers omitted).)

The October 2018 letter, referenced by Rogers and Plaintiff

Miles, appears to have addressed a number of issues. (See Docket

Entry 20-4 at 1-4.) It includes a statement that Rogers’s office

would “continu[e] to investigate how [Plaintiff Miles’s] access

issue might be addressed to ensure effective communication

regarding [his] care and treatment. In the meantime, [Plaintiff

Miles could] call the appropriate clinic with any questions [he

had].” (Id. at 2.) Given that statement and the fact that

Plaintiff Miles’s attorney had already notified the Patient

Relations Office of Plaintiff Miles’s need for vision-related

services, Plaintiff Miles reasonably could have construed the

October 2018 letter as the Plaintiff Miles Declaration indicates,

notwithstanding the language in the attached Notice (as described

by Rogers).

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In any event, according to the Plaintiff Miles Declaration,

Plaintiff Miles contacted Patient Relations on two later occasions

for assistance, after he received an additional letter from Rogers,

in standard print, but later followed by a large print version.

(See Docket Entry 26-3, ¶¶ 20-25.) Specifically, the Plaintiff

Miles Declaration states:

On or about January 17, 2019, [Plaintiff Miles]

received an inaccessible letter from Mr. Rogers in

standard print by mail. . . . [Plaintiff Miles] could not

read the letter on [his] own. [He] was told it [said that

he] should contact the Patient Relations office whenever

[he did] not receive visit summaries in large print. In

early February, [Plaintiff Miles] received a large print

version of what [he] believe[d] to be the same letter.

Since receiving this second letter from Mr. Rogers,

[Plaintiff Miles] has contacted [Mr. Rogers’s] office

twice for assistance.

[Plaintiff Miles] first tried contacting the Patient

Relations office on January 30, 2019, while [Plaintiff

Miles] was at the dermatology clinic. [He] left a

voicemail because no one answered. Mr. Rogers called

back and talked to a nurse at the clinic. After the

call, the nurse said that she still did not know how to

print visit summaries in large print, and [Plaintiff

Miles and the nurse] agreed that [Plaintiff Miles] would

leave if the clinic could not print the summary in large

print by the time [his] scheduled ride arrived. Although

[Plaintiff Miles] waited thirty-minutes after [his] visit

in hopes of receiving [his] visit summary in large print,

[his] ride arrived and [he] had to leave the clinic

without it. Mr. Rogers afterwards called and said he

would figure out a way to mail the visit summary to

[Plaintiff Miles].

. . . .

The second time [Plaintiff Miles] contacted Patient

Relations was to request an accessible visit summary from

[his] visit to the ophthalmology clinic. On or about

January 11, 2019, [Plaintiff Miles] visited [Defendant]

UNC[HCS]’s Eye Care Center. When [he] did not receive a

visit summary at the end of [his] visit as he normally

d[id], [he] emailed [his] medical provider at the Center

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. . . the next day to request a copy of the visit summary

in large print. . . . [Plaintiff Miles] never received

any response to [his] email from the clinic and contacted

Patient Relations a few weeks later to obtain a copy. A

person from Patient Relations returned [Plaintiff

Miles’s] call and said [he] would receive the visit

summary in a couple days by mail.

(Docket Entry 26-3, ¶¶ 20-22, 25 (internal paragraph numbers

omitted).)

The Rogers Declaration confirms that Plaintiff Miles contacted

Rogers on January 30, 2019. (See Docket Entry 20-3, ¶ 7.)

Therefore, contrary to Defendant UNCHCS’s assertions, Plaintiff

Miles did “respond to the offer of assistance” (Docket Entry 24 at

11). Nor do Plaintiff Miles’s allegations of injury otherwise

warrant characterization as too speculative to support standing at

this preliminary stage.

The Court also should decline to dismiss this action based on

Defendant UNCHCS’s description of the Amended Complaint’s

allegations concerning Plaintiff Miles’s injuries as not

“sufficiently precise or specific to establish the necessity for

injunctive relief” (id. at 13). Plaintiff Miles seeks compensatory

damages. (See Docket Entry 18, §§ 42, 73, 89.) As a result,

regardless of the availability of injunctive relief, his claims

against Defendant UNCHCS can proceed because “standing for

retrospective relief can be based on past injuries alone,” Weigel,

950 F. Supp. 2d at 827.

In sum, at least at this juncture in the proceedings,

Defendant’s UNCHCS’s standing attack on Plaintiff Miles falls

short.

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iii. Plaintiffs NFB and DRNC

Defendant UNCHCS also maintains that Plaintiffs NFB and DRNC

both lack associational standing. (See Docket Entry 24 at 13-15.)

According to Defendant UNCHCS, Plaintiffs NFB and DRNC both “appear

to assert associational standing based on the membership of . . .

Plaintiffs Bone and Miles” (id. at 14), who lack standing to bring

this action, such that neither Plaintiff NFB nor Plaintiff DRNC

possess standing to sue (see id.). Plaintiffs respond that,

because “[Plaintiff] Bone and [Plaintiff] Miles have standing,

[Plaintiffs] NFB and DRNC also have standing through their members

and constituents.” (Docket Entry 26 at 13.)

As discussed previously, Plaintiffs Bone and Miles possess

standing to pursue claims in their own right. Further, this action

promotes Plaintiffs NFB’s and DRNC’s organizational purposes by

seeking to “ensure that the blind have an equal opportunity to

access information related to their health care.” (Docket Entry

18, ¶ 10.) Lastly, the injunctive relief sought against Defendant

UNCHCS would benefit members and constituents of Plaintiffs NFB and

DRNC, without the need for participation of those other members.

See generally Hunt v. Washington State Apple Advert. Comm’n, 432

U.S. 333, 343 (1977) (finding that, “[i]f in a proper case the

association seeks a declaration, injunction, or some other form of

prospective relief, it can reasonably be supposed that the remedy,

if granted, will inure to the benefit of those members of the

association actually injured”).

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Under these circumstances, Plaintiffs NFB and DRNC possess

standing to pursue this action against Defendant UNCHCS.

2. Defendant NHI

i. Plaintiff Miles

The NHI Dismissal Motion contends that “Plaintiffs

consistently conflate the allegations directed at [Defendant]

UNC[HCS] and [Defendant] NHI.” (Docket Entry 29 at 15.) Further,

according to Defendant NHI, “Plaintiffs attempt to confuse the

factual allegations of [Plaintiff] Miles and [Plaintiff] Bone.”

(Id.) In its response, Plaintiffs assert that, “[c]ontrary to

[Defendant NHI]’s arguments otherwise, [Plaintiff] Miles does not

assert any claims against [Defendant NHI], nor do any Plaintiffs

assert claims against [Defendant NHI] rooted in [Defendant]

UNC[HCS]’s conduct.” (Docket Entry 32 at 2 n.2.) Because

Plaintiffs concede that they have not stated a claim against

Defendant NHI based on allegations concerning Plaintiff Miles (see

id.), the Court need not analyze the issue of standing in regards

to Plaintiff Miles and Defendant NHI.

ii. Plaintiff Bone

Defendant NHI argues that Plaintiff Bone “has not suffered

adverse financial impact from [Defendant] NHI, nor is [he] likely

to be denied communications in Braille in the future” (Docket Entry

29 at 9 (internal footnote omitted)) and, as such, Defendant NHI

asserts that “[Plaintiff] Bone does not have standing to bring this

suit” (id.). In that regard, Defendant NHI initially contended

that its “contractors’ billing activities are not within the scope

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of [its] public accommodation” (id. at 1) and therefore, “to the

extent [Plaintiff] Bone suffered harm, his injury is not fairly

traceable to [Defendant] NHI” (id.). Defendant NHI based that

argument upon the assertion that “[t]he contractor[s’] billing

function[s] do[] not take place within [Defendant] NHI’s facilities

or any public accommodation owned, operated, or controlled by

[Defendant] NHI.” (Id.)

In their response, Plaintiffs countered that “Title III,

Section 504, and Section 1557 all make clear that covered entities

are responsible for the actions of their contractors.” (Docket

Entry 32 at 10.) In its reply, Defendant NHI did not address that

argument, simply stating “the issues for which Plaintiffs seek

redress in this lawsuit were resolved by [Defendant] NHI, and the

medical providers identified by Plaintiffs in the Amended Complaint

approximately one year before this lawsuit was filed, as evidenced

by the declarations filed contemporaneously herewith and

[Defendant] NHI’s Initial Memorandum and supporting declarations.”

(Docket Entry 33 at 1.) Plaintiffs then moved for leave to file a

surreply and included a proposed surreply, along with related

attachments (Docket Entries 40, 40-1, 40-2, 40-3). Defendant NHI

responded in opposition (Docket Entry 41) and Plaintiffs replied

(Docket Entry 42).

“The Rules of Practice and Procedure of the United States

District Court for the Middle District of North Carolina only allow

for the filing of a motion, a response to a motion, and a reply.”

DiPaulo v. Potter, 733 F. Supp. 2d 666, 670 (M.D.N.C. Aug. 23,

-25-

2010) (Schroeder, J.) (referencing Local Rules 7.3 & 56.1).

“Parties do not have the right to file a surreply.” Id. (citing

Johnson v. Rinaldi, No. 1:99CV170, 2001 WL 293654, at *7 (M.D.N.C.

Feb. 16, 2001) (unpublished) (noting absence of “authority

establishing a right to file a surreply”)). “Generally, courts

allow a party to file a surreply only when fairness dictates based

on new arguments raised in the previous reply.” Id. (citing

United States v. Falice, No. 1:04CV878, 2006 WL 2488391 (M.D.N.C.

Aug. 25, 2006) (unpublished), and Khoury v. Meserve, 268 F. Supp.

2d 600, 605–06 (D. Md. 2003), aff’d, 85 F. App’x 960 (4th Cir.

2004)).

In its reply in support of dismissal, Defendant NHI abandoned

its previous argument that any injury sustained from its

contractors’ actions could not lead to liability for Defendant NHI.

(See Docket Entry 33 at 1-15.) Instead, Defendant NHI’s reply

asserts that “this Court need not reach the question of what amount

of control is required to impose liability on a hospital for the

actions of medical providers under the various federal statutes

because the evidence demonstrates that each of the medical

providers either provided [Plaintiff] Bone a Braille invoice,

offered to provide [Plaintiff] Bone a Braille invoice (which

[Plaintiff] Bone declined), or wrote off the balance of [Plaintiff]

Bone’s account.” (Id. at 7.) As support for that position,

Defendant NHI relies on multiple new declarations from the

referenced medical providers, as well as a summary of each. (See

id. at 2-5.) Because Defendant NHI did present a new argument in

-26-

its reply brief and introduced new evidence in support, the Court

will grant Plaintiffs’ motion for leave to file a surreply (Docket

Entry 40) and will accept Plaintiffs’ proposed Surreply and related

attachments (Docket Entries 40-1, 40-2, 40-3).

1. Injury in Fact

Turning to the substance of the parties’ dispute over

Plaintiff Bone’s standing, Defendant NHI argues that Plaintiff Bone

has not suffered an injury in fact because Defendant NHI “remedied

any harm that [it] could have caused Plaintiff Bone in 2017, a full

year before the Complaint was filed.” (Docket Entry 29 at 13

(citing declaration of Lynn Cash (“Cash Declaration”) (Docket Entry

28-1)).) Specifically, Defendant NHI asserts that its remedy

involved “send[ing] Braille bills to [Plaintiff] Bone, . . .

ceas[ing] all collection activities, and ma[king] sure that

[Plaintiff] Bone’s NHI accounts had never been reported to any

consumer reporting agencies.” (Id.) Plaintiffs respond that

“[Plaintiff] Bone has suffered a concrete injury [because Defendant

NHI] . . . failed to timely provide [Plaintiff] Bone medical bills

in an accessible format, as they do for sighted patients.” (Docket

Entry 32 at 6.) Moreover, citing the Cash Declaration, Plaintiffs

maintain that Defendant NHI did not provide the first Braille

billing document to Plaintiff Bone until “nearly four months after

it became available” (id. at 7), and then proceeded to “refer

[Plaintiff] Bone to collections a month and a half later without

sending a second or final notice to [him]” (id.). Plaintiffs also

assert that Defendant NHI failed to timely provide Plaintiff Bone

-27-

with the second Braille billing document. (Id. (citing Plaintiff

Bone’s declaration (“Plaintiff Bone Declaration”) (Docket Entry 26-

1)).) In its reply, Defendant NHI argues that the Amended

Complaint lacks “evidence to support [Plaintiffs’] contention that

[Defendant] NHI provided untimely Braille invoices to [Plaintiff]

Bone in particular, given the timing of the medical billing process

for all patients.” (Docket Entry 33 at 6.)

Both the Amended Complaint and the Plaintiff Bone Declaration

state that Plaintiff Bone informed Defendant NHI’s “hospital and

provider staff that he was blind and needed to receive medical

bills in Braille. . . . . [but that] the hospital . . . initially

[did not] sen[d] bills to [Plaintiff] Bone in Braille. Instead,

[Plaintiff] Bone received all of the bills related to his hospital

visits in print.” (Docket Entry 18, ¶¶ 17-18; see also Docket

Entry 26-1, ¶¶ 9, 10, 11, 13.) The Plaintiff Bone Declaration

further asserts that “[Defendant NHI] . . . sent second and third

bill notices in print. [He] could not read the notices and

therefore did not know the payments were overdue or to whom the

payments should be made. As a result, [he] accrued late fees and

the hospital . . . referred [him] to [a] collection agency.”

(Docket Entry 26-1, ¶ 13.) Additionally, the Plaintiff Bone

Declaration avers that he did not receive a medical bill in Braille

from Defendant NHI until “[a]fter [he] obtained an attorney

. . . .” (Id., ¶ 15.) Similarly, the Amended Complaint alleges

that, “[o]nly after counsel for [Plaintiff] Bone wrote to

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[Defendant NHI,] did it agree to provide Braille invoices for

previously sent bills.” (Docket Entry 18, ¶ 21.)

Defendant NHI’s evidence, provided through the Cash

Declaration, reflects that Cash mailed a Braille invoice four

months after Plaintiff Bone’s December 2016 visit. (See Docket

Entry 28-1, ¶ 9, 10, 11.) The Cash Declaration then states that,

“in or around May 30, 2017, [Plaintiff] Bone’s NHI invoice for the

December 2016 treatment was sent to collections.” (Id., ¶ 12.)

Further, despite Plaintiff Bone’s request for Braille documents

during his June-July 2017 visit to [Defendant] NHI (see Docket

Entry 26-1, ¶ 11), the Cash Declaration acknowledges that,

“[Defendant] NHI sent an invoice to [Plaintiff] Bone for these

services, which was not in Braille” (Docket Entry 28-1, ¶ 13).

Next, the Cash Declaration provides that, “in or around

October 24, 2017, [she] received a call from [Plaintiff] Bone

indicating that he did not receive [Defendant] NHI’s invoice in

Braille for the December 2016 admission.” (Id., ¶ 14.) As a

result, “[o]n or about October 26, 2017, [she] . . . requested

another Braille copy of [Plaintiff] Bone’s NHI invoice for his

December 2016 admission. [She] also requested that the invoice for

[Plaintiff] Bone’s NHI admission in June-July 2017 be translated

into Braille.” (Id., ¶ 15.) Further, according to the Cash

Declaration, “[i]n or around October 30, 2017, [she] verified with

NHI’s collection agency that [Plaintiff] Bone’s past due NHI

invoices had not been reported to any consumer reporting agency.

-29-

[She also] confirmed that [Defendant] NHI’s collection agency had

ceased collection activity.” (Id., ¶ 16.)

The Cash Declaration additionally states that, “[a]fter

consultation with [Plaintiff] Bone’s attorney, . . . [Defendant]

NHI wrote off forty percent (40%) of [Plaintiff] Bone’s outstanding

balances with [Defendant] NHI, which was reflected on the invoices

sent . . . in the fall of 2017 for Braille translation.” (Id.,

¶ 17.) Lastly, the Cash Declaration avers that she received and

mailed Braille invoices, via certified mail, for Plaintiff Bone’s

December 2016 admission and June-July 2017 admission on December

11, 2017, and December 18, 2017, respectively. (See id., ¶¶ 18,

19.)

Therefore, accepting Defendant NHI’s assertions as true,

(i) it sent the Braille invoice for Plaintiff Bone’s December 2016

treatment nearly four months later; (ii) it then referred Plaintiff

Bone to a collection agency less than two months later; (iii) it

took remedial steps only after Plaintiff Bone’s attorney

intervened; and (iv) it sent a Braille invoice for Plaintiff Bone’s

June-July 2017 hospitalization six months later.

Defendant NHI also argues that “[Plaintiff] Bone’s medical

providers who worked in or through [Defendant NHI] resolved

[Plaintiff] Bone’s issues concerning his medical invoices more than

a year before the lawsuit was filed.” (Docket Entry 33 at 6.) In

support of that argument, Defendant NHI references each provider

and offers a brief summary of the actions taken to provide Braille

invoices, write off Plaintiff Bone’s past due amounts, and either

-30-

cease collection activity or confirm that no collection activity

had occurred. (Id. at 2-5.) Plaintiffs’ Surreply disputes

Defendant NHI’s contention regarding provision of Braille invoices,

asserting that “[Plaintiff] Bone has not received any Braille

communications from the contractors related to his visits to

[Defendant NHI] in 2016 and 2017.” (Docket Entry 40-1 at 5.)

Consistent with that position, Plaintiff Bone tendered a second

declaration in which he denied receiving any Braille invoices from

contractors (see Docket Entry 40-2, ¶¶ 5-7, 9-11), and Plaintiff

Bone’s previous attorney submitted a declaration indicating that

several of Defendant NHI’s contractors did not address Plaintiff

Bone’s issues (see Docket Entry 40-3, ¶¶ 4-6).

Given this record, the Court should deem sufficient (for

present standing purposes) the Amended Complaint’s claim that

“[Defendant] NHI’s failure to communicate effectively with blind

patients . . ., as occurred with [Plaintiff] Bone, increases their

chances of incurring fines and damaging their credit scores, due to

late payment of medical bills received in standard print” (Docket

Entry 18, ¶ 52).

2. Compensatory Damages

Defendant NHI next asserts that Plaintiff Bone “has not set

forth any facts that would merit compensatory damages” (Docket

Entry 29 at 17), because “[n]either the Amended Complaint nor the

record evidence support a finding that [Defendant] NHI acted with

deliberate indifference” (id.). Plaintiffs correctly contend that

“[Defendant NHI] has conflated two legal issues: the power of this

-31-

Court to redress [Plaintiff] Bone’s injuries . . . and the

sufficiency of [Plaintiff] Bone’s allegations regarding such

relief.” (Docket Entry 32 at 15; see also Docket Entry 33 at 1-15

(failing to contest that argument in reply).) In that regard, the

Fourth Circuit has “agree[d] that it is inappropriate to first

consider the merits of a claim when determining whether a party has

standing under Article III of the Constitution.” Covenant Media of

N.C., L.L.C. v. City of Monroe, N.C., 285 F. App’x 30, 33 (4th Cir.

2008) (citing Warth, 422 U.S. at 500); see also Covenant Media of

S.C., L.L.C. v. City of N. Charleston, 493 F.3d 421, 429 (4th Cir.

2007) (noting that “[a] plaintiff’s standing to bring a case does

not depend upon his ultimate success on the merits underlying his

case”).

The Court thus should conclude that Plaintiff Bone possesses

standing to seek compensatory damages under Section 504 and Section

1557 against Defendant NHI; however, “Title III does not allow a

private party to seek monetary damages, [but rather only]

provide[s] for injunctive relief.” Basta v. Novant Health, Inc.,

3:19CV64, 2019 WL 3310098, at *3 (W.D.N.C. July 23, 2019)

(unpublished) (citing 42 U.S.C. § 12188). Accordingly, the Court

must assess Plaintiff Bone’s standing to pursue injunctive relief

against Defendant NHI, pursuant to Title III.

3. Injunctive Relief

As to such injunctive relief, Defendant NHI argues that

“Plaintiffs rely on a chain of unlikely events concerning supposed

future health events to predict potential injury [for Plaintiff

-32-

Bone].” (Docket Entry 33 at 9.) In particular, Defendant NHI

identifies various considerations that weigh against Plaintiff

Bone’s standing to seek injunctive relief, including that:

(a) “proximity, without potential harm, is insufficient to

establish imminence” (id.); (b) “[Plaintiff] Bone’s intent to

return to [Defendant NHI] in the future is speculative and

conditional” (id. at 10); and (c) “[Plaintiff] Bone cannot point to

an irreparable injury that will occur absent an injunction” (id. at

12).

Regarding the first consideration, Defendant NHI challenges

Plaintiffs’ assertion that “liv[ing] seven miles from Nash General

Hospital . . . is sufficient to establish that future injury will

occur.” (Id. at 9.) According to Defendant NHI, Plaintiff Bone

must “allege[] that the ADA violations described in the [Amended

C]omplaint [were] still in place at the time of the commencement of

the action.” (Id.) Defendant NHI maintains that Plaintiff Bone

cannot make such a showing, because “[i]ssues concerning

[Plaintiff] Bone’s invoices, the only accommodation [Plaintiff]

Bone sought from [Defendant] NHI and medical providers through Nash

General Hospital, had been resolved approximately one year prior to

the commencement of this action.” (Id. at 9-10 (internal citation

omitted).) Further, Defendant NHI emphasizes that “[Plaintiff]

Bone has not alleged an ongoing medical condition that requires

treatment at Nash General Hospital . . . . [or] treat[ment] by

[Defendant] NHI or the medical providers at issue since July 2017.”

(Id. at 10.) Lastly, Defendant NHI notes that “neither [Defendant]

-33-

NHI nor any of the medical providers at issue ever refused to

provide Braille invoices to [Plaintiff] Bone . . . . [He therefore]

cannot point to an irreparable injury that will occur absent an

injunction from this Court.” (Id. at 11-12.)

In order to establish entitlement to injunctive relief under

Title III, Plaintiffs, more specifically Plaintiff Bone, must

establish “a real or immediate threat that [he] will be wronged

again -- a likelihood of substantial and immediate irreparable

injury.” Lyons, 461 U.S. at 111 (internal quotation marks

omitted). “In other words, . . . [Plaintiff Bone] ‘must

demonstrate a real and immediate threat of repeated injury in the

future.’” National Alliance for Accessibility, Inc. v. Waffle

House, Inc., No. 5:10CV375, 2011 WL 2580679, at *2 (E.D.N.C. Jun.

29, 2011) (unpublished) (emphasis in original) (quoting Chapman v.

Pier I Imports Inc., 631 F.3d 939, 946 (9th Cir. 2011)).

A plaintiff’s “profession of an ‘intent’ to return to the

places [he] had visited before . . . is simply not enough.” Lujan,

504 U.S. at 564. “Such ‘some day’ intentions -- without any

description of concrete plans, or indeed even any specification of

when the some day will be -- do not support a finding of the

‘actual or imminent’ injury . . . .” Id. “In assessing the

plausibility of a plaintiff’s claim that []he is likely to return

to the site of the discrimination . . ., [this Court has found] the

following factors helpful: ‘(1) the plaintiff’s proximity to the

defendant’s place of public accommodation; (2) the plaintiff’s past

patronage; [and] (3) the definitiveness of the plaintiff’s plan to

-34-

return... .’” Payne v. Chapel Hill N. Props., LLC, 947 F. Supp.

2d 567, 573 (M.D.N.C. 2013) (Schroeder, J.).’

a. Proximity

The Amended Complaint asserts that “[Plaintiff] Bone, a

resident of Rocky Mount, North Carolina, relies on [Defendant NHT]

for his emergency medical needs” (Docket Entry 18, 4 15) and that

“[Defendant NHI] is [Plaintiff] Bone’s local hospital” (id., 47 7).

The Plaintiff Bone Declaration further details that he “lives about

seven and half miles from Nash General Hospital.” (Docket Entry

26-1, FI 5.) Given that Plaintiff Bone resides so closely to

[Defendant NHI]’s hospital, this factor weighs in favor of

standing. See generally Daniels v. Arcade, L.P., 477 F. App’x 125,

130 (4th Cir. 2012) (“deem[ing] the allegation [of intent to

return] plausible because [the plaintiff] reside[d] in relatively

close proximity to [defendant’s business]”); see also id. at 127

(observing that the plaintiff’s residence “is located about 20

miles from [the defendant’s business]”).

b. Past Patronage

Although “multiple prior visits to a place of public

accommodation are not sufficient to show a likelihood of future

harm in the absence of additional allegations,” Payne, 947 F. Supp.

2d at 574-75, “[c]lourts have found that a plaintiff’s past

patronage of a defendant’s place of business is probative of a

likelihood to return,” id. at 574. The Amended Complaint alleges

’ Courts also have considered “the plaintiff’s frequency of

nearby travel,” Payne, 947 F. Supp. 2d at 573; however, that factor

lacks applicability here.

~35-

that Plaintiff Bone “has been a patient of [Defendant NHI] . . .

and its contractors since 2016.” (Docket Entry 18, ¶ 7.) The

Plaintiff Bone Declaration further provides that his “first visit

to Nash General Hospital was on or about December 13, 2016.”

(Docket Entry 26-1, ¶ 8; see also id., ¶ 11 (reporting that the

“second visit to Nash General Hospital started on June 29, 2017,

and ended on July 4, 2017”).) Neither the Amended Complaint nor

the Plaintiff Bone Declaration set forth any facts regarding any

later visits. (See Docket Entries 18, 26-1.) Under these

circumstances, Plaintiff’s past patronage weighs in favor of

standing, albeit only “slightly,” Payne, 947 F. Supp. 2d at 575.

c. Plans to Return

“Although a plaintiff does not need to engage in the ‘futile

gesture’ of re-visiting a place of business that [fails to provide

accommodations to disabled individuals], []he must still prove that

[]he would visit the business in the imminent future but for those

[failures].” Id. (quoting Steger v. Franco, Inc., 228 F.3d 889,

892–93 (8th Cir. 2000)). The Amended Complaint alleges that “Nash

[General Hospital] is [Plaintiff] Bone’s local hospital and

[Plaintiff Bone] intends to return to Nash [General Hospital] as

future medical needs arise.” (Docket Entry 18, ¶ 7.) The Plaintiff

Bone Declaration likewise states that he “plan[s] to visit Nash

General Hospital for [his] future emergency medical treatment

needs.” (Docket Entry 26-1, ¶ 18.)

Defendant NHI contests the adequacy of those allegations by

asserting that “[Plaintiff] Bone has not alleged sufficient facts

-36-

to establish that he will ever need similar medical services.”

(Docket Entry 33 at 10-11.) In that regard, as Defendant NHI has

observed, “[Plaintiff] Bone has not alleged an ongoing medical

condition that requires treatment at Nash General Hospital.” (Id.

at 10; see also Docket Entry 18, ¶¶ 7, 15-22; Docket Entry 26-1,

¶¶ 6, 7, 18.) In the context of this case, that factor tilts the

balance against standing for Plaintiff Bone to pursue injunctive

relief against Defendant NHI, as shown by rulings from other

courts, which have declined to find standing for injunctive relief

in similar circumstances. See, e.g., McCullum v. Orlando Reg’l

Healthcare Sys., Inc., 768 F.3d 1135, 1146 (11th Cir. 2014)

(denying injunctive relief in part because plaintiff “failed to

establish a real and immediate threat that he would be readmitted

to either defendant hospital”); Proctor v. Prince George’s Hosp.

Ctr., 32 F. Supp. 2d 830, 833 (D. Md. 1998) (finding injunctive

relief inappropriate absent evidence to suggest that the plaintiff

was “likely to return to [the defendant hospital] in the near

future”).

Here, Plaintiffs have failed to “provide indicia of concrete

plans to support a finding that [Plaintiff Bone] will suffer an

actual or imminent injury necessary for standing.” Payne, 947 F.

Supp. 2d at 576. Even considering that the proximity element

weighs in Plaintiff Bone’s favor, he has only visited Defendant NHI

on two occasions and has failed to establish a likelihood of return

in the future. Therefore, Plaintiffs lack standing to seek

injunctive relief against Defendant NHI. Moreover, because Title

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III “does not allow a private party to seek monetary damages,”

Basta, 2019 WL 3310098, at *6, the Court should dismiss the Title

III claim.

iii. Plaintiffs NFB and DRNC

Defendant NHI argues that Plaintiffs NFB and DRNC both lack

associational standing. (See Docket Entry 29 at 18-19.) According

to Defendant NHI, “[Plaintiffs] NFB and DRNC both seek to establish

associational standing on claims against [Defendant] NHI on the

assertion that [Plaintiff] Bone, a member of both organizations,

has standing.” (Id. at 18.) Defendant NHI maintains that, because

Plaintiff Bone lacks standing to bring this action, neither

Plaintiff NFB nor Plaintiff DRNC have standing to sue. (Id. at 18-

19.) Plaintiffs respond that, because “[Plaintiff] Bone, a member

of NFB and constituent of DRNC, has standing, [Plaintiffs] NFB and

DRNC also have standing to pursue claims on behalf of their members

and constituents.” (Docket Entry 32 at 18.)

As discussed previously, Plaintiff Bone possesses standing to

pursue compensatory damages under Section 504 and Section 1557.

However, Plaintiff Bone lacks standing to pursue injunctive relief

against Defendant NHI under Title III and Plaintiffs NFB and DRNC

do not seek compensatory damages against Defendant NHI under

Section 504 or Section 1557. (See Docket Entry 18, ¶¶ 42, 73, 89).

As a result, Plaintiffs NFB and DRNC lack standing for any claims

against Defendant NHI.

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C. Mootness - Defendant NHI

Defendant NHI argues that, “[i]n a similar vein as to lack of

standing, [Plaintiff] Bone’s claims are now moot.” (Docket Entry

29 at 19.) To support this argument, Defendant NHI again asserts

that “the issues between [Plaintiff] Bone and [Defendant] NHI have

been resolved at this time.” (Id. at 20.) Defendant NHI bases

this argument on previously-referenced evidence that the “United

States Postal Service delivered [Plaintiff] Bone by certified mail

. . . Braille billings for both hospital admissions a year before

this lawsuit was filed.” (Id.) Plaintiffs counter that

“[Plaintiff] Bone’s injuries remain unresolved and are therefore

not moot . . . . [He] has yet to receive Braille invoices from

[Defendant NHI]’s contractors for two prior visits to [Defendant

NHI].” (Docket Entry 32 at 19 (citing Docket Entry 18, ¶ 21 and

Docket Entry 26-1, ¶¶ 15-17).) Further, Plaintiffs state that

Defendant NHI provided bills only “months late and thus untimely.”

(Id.)

The Fourth Circuit has held that “[a] case becomes moot, and

thus deprives federal courts of subject matter jurisdiction, when

the issues presented are no longer live or the parties lack a

legally cognizable interest in the outcome.” Pashby v. Delia, 709

F.3d 307, 316 (4th Cir. 2013) (internal quotations omitted). Given

the above-described dispute over the resolution of Plaintiff Bone’s

past injuries, the Court should not treat his claims under Section

504 and Section 1557 as moot.

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D. Title II and Section 504 Claims - Defendant UNCHCS

Title II of the ADA provides that “no qualified individual

with a disability shall, by reason of such disability, be excluded

from participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subject to

discrimination by any such entity.” 42 U.S.C. § 12132. Similarly,

Section 504 of the Rehabilitation Act declares that “[n]o otherwise

qualified individual with a disability . . . shall, solely by

reason of her or his disability, be excluded from the participation

in, be denied the benefits of, or be subjected to discrimination

under any program or activity receiving Federal financial

assistance.” 29 U.S.C. § 794(a).

To make out a claim under Title II or Section 504,8 Plaintiffs

must prove “(1) they have a disability; (2) they are otherwise

qualified to receive the benefits of a public service, program, or

activity; and (3) they were denied the benefits of such service,

program, or activity, or otherwise discriminated against, on the

basis of their disability.” National Fed’n of the Blind v. Lamone,

813 F.3d 494, 503 (4th Cir. 2016). The two claims “differ only

with respect to the third element, causation.” Halpern v. Wake

Forest Univ. Health Scis., 669 F.3d 454, 461 (4th Cir. 2012). In

that regard, “[t]o succeed on a claim under [Section 504], the

8 As Defendant UNCHCS has observed, “‘[c]laims under the ADA’s

Title II and [Section 504 of] the Rehabilitation Act can be

combined for analytical purposes because the analysis is

substantially the same.’” (Docket Entry 24 at 17 (quoting Seremeth

v. Board of Cty. Comm’rs Frederick Cty., 673 F.3d 333, 336 n.1 (4th

Cir. 2012)).)

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plaintiff[s] must establish [they were] excluded solely by reason

of [their] disability; [Title II of] the ADA requires only that the

disability was a motivating cause of the exclusion.” Id. at 461-62

(internal quotations omitted).

“A successful plaintiff in a suit under Title II of the ADA or

[Section] 504 . . . is generally entitled to a full panoply of

legal and equitable remedies.” Paulone v. City of Frederick, 787

F. Supp. 2d 360, 373 (D. Md. 2011). However, “compensatory damages

are available only upon proof of intentional discrimination or

disparate treatment, rather than mere disparate impact.” Id.

“While the Fourth Circuit has not specifically addressed the

standard required for proving intentional discrimination, the

majority of circuits to have decided the issue have adopted a

deliberate indifference standard, as have some district courts

within the Fourth Circuit.” Smith v. N.C. Dep’t of Safety, No.

1:18CV914, 2019 WL 3798457, at *3 (M.D.N.C. Aug. 13, 2019)

(unpublished) (Schroeder, C.J.) (citing Green v. Central Midlands

Reg’l Transit Auth., No. 3:17CV2667, 2019 WL 1765867, at *6 n.15,

*9-10, *9 n.24 (D.S.C. Apr. 22, 2019) (unpublished), and Godbey v.

Iredell Mem’l Hosp. Inc., No. 5:12CV4, 2013 WL 4494708, at *4-6

(W.D.N.C. Aug. 19, 2013) (unpublished)). In order to prove

deliberate indifference, “a plaintiff must show that the defendant

knew that harm to a federally protected right was substantially

likely and failed to act on that likelihood.” Silva v. Baptist

Health S. Fla., Inc., 856 F.3d 824, 831 (11th Cir. 2017).

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Here, Defendant UNCHCS disputes that it “denied [Plaintiffs]

the benefits of [a] service program or activity . . . on the basis

of their disability,” Lamone, 813 F.3d at 503. (See Docket Entry

24 at 18-20.) In this regard, Defendant UNCHCS first argues that

Plaintiffs have failed to “articulate sufficient allegations of

discriminatory intent as to [Defendant] UNCHCS’s actions toward the

individual plaintiffs.” (Id. at 18.) In particular, Defendant

UNCHCS contests the sufficiency of the allegations that Plaintiff

NFB’s counsel “informed [Defendant] UNCHCS that it was violating

Title II . . . by failing to provide accessible formats for blind

persons generally, not specifically, and that [Defendant] UNCHCS

“declined [an] offer to work collaboratively, on a systemic basis

to fix the problem and continued to violate the law.’” (Id.

(quoting Docket Entry 18, ¶ 41).) Further, Defendant UNCHCS

contends that Plaintiffs’ allegations concerning Plaintiff Miles do

not suffice, in light of Defendant UNCHCS’s “contemporaneous

efforts to reach out to [Plaintiff] Miles to provide assistance

[which] elicited no response from [Plaintiff] Miles.” (Id. at 19.)

The Amended Complaint alleges the following concerning the

claims under Title II and Section 504:

[Defendant] UNC[HCS]’s refusal to communicate with blind

patients in an equally effective manner, through the

provision of alternative formats, was done intentionally

or with deliberate indifference to the protected rights

of [Plaintiff] Bone, [Plaintiff] Miles, and other

[Plaintiff] NFB members and [Plaintiff DRNC]

constituents. For example, even after counsel for

Plaintiffs wrote to Defendants, informed them that they

were violating Title II of the ADA [and Section 504],

among other laws, by failing to provide accessible

formats for blind patients, and offered to work

collaboratively to fix the problem, Defendants declined

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Plaintiffs’ offer and continued to violate the law.

[Plaintiff] Miles was unable to obtain large print

documents during two of his latest visits to [Defendant]

UNC[HCS] medical practices and facilities in October

2018, after [Defendant] UNC[HCS] had been notified of

this issue by Plaintiffs’ counsel.

(Docket Entry 18, ¶ 41; accord id., ¶ 72.)

The Amended Complaint thus describes two incidents when

(despite prior communications from Plaintiffs’ counsel) Defendant

UNCHCS failed to provide Plaintiff Miles with documents in an

accessible format. (See id., ¶¶ 41, 72.) Further, as discussed

previously, the record does not establish that Plaintiff Miles

unreasonably failed to respond to Defendant UNCHCS’s

“contemporaneous efforts . . . to provide assistance” (Docket Entry

24 at 19). In light of the foregoing, Plaintiffs have adequately

alleged that their counsel reached out to Defendant UNCHCS about

its failure to provide blind patients with accessible documents in

order to avoid “harm to a federally protected right,” Silva, 856

F.3d at 831, but that Defendant UNCHCS “failed to act on that

likelihood,” id.9

Next, Defendant UNCHCS argues that Plaintiffs “have not

alleged sufficient facts to permit an inference that their

disability . . . was a motivating factor.” (Docket Entry 24 at

20.) However, Defendant UNCHCS has not explained how Plaintiffs

9 Even absent sufficient allegations to show discriminatory

intent (via deliberate indifference) by Defendant UNCHCS,

injunctive relief would remain available. See Silva, 856 F.3d at

831 (stating that “proving the failure to provide a means of

effective communication, on its own, permits [] injunctive

relief”). As Plaintiffs have requested injunctive relief under

Title II and Section 504, those claims would proceed regardless of

the sufficiency of the allegations of discriminatory intent.

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inadequately pled facts to permit such an inference. (See id.)

Moreover, in response, Plaintiffs countered that Defendant

“UNC[HCS]’s argument conflates causation with intent.” (Docket

Entry 26 at 17.) Defendant UNCHCS did not address that counter-

argument in its reply brief. (See Docket Entry 27 at 1-15.)

“[P]roving the failure to provide a means of effective

communication, on its own, permits [] injunctive relief.” Silva,

856 F.3d at 831. Plaintiffs have adequately alleged that Defendant

UNCHCS “failed to communicate effectively by denying [Plaintiffs]

the auxiliary aid of alternative formats” (Docket Entry 26 at 17).

(See Docket Entry 18, ¶¶ 41, 72.)

Lastly, Defendant UNCHCS argues that Plaintiffs’ allegation

that Defendant “UNCHCS has not ensured that its affiliated entity,

[Defendant NHI], complies with Title II of the ADA . . . appears to

misapprehend the nature of the contractual relationship between

[Defendant] UNCHCS and [Defendant NHI].” (Docket Entry 24 at 20.)

In connection with this argument, Defendant UNCHCS refers to

administrative material titled “The Guidance to the ADA Regulation

on Nondiscrimination on the Basis of Disability in State and Local

Government Services, Appendix B to Part 35, Title 28 of the Federal

Regulations.” (Id.) Defendant UNCHCS then confusingly states that

it “was not providing governmental services on behalf of the State”

(id.), Defendant NHI “does not contract with [Defendant] UNCHCS to

provide governmental services on behalf of [Defendant] UNCHCS”

(id.), and that “[Defendant] UNCHCS was not providing management

services for patient billing to [Defendant NHI]” (id.). In its

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response, Plaintiffs also reference the “Title II Technical

Assistance Manual,” in arguing that, “[u]nder Title II, a public

entity is liable for its own discriminatory actions and the

discriminatory actions of private entities with whom it has a

contractual relationship.” (Docket Entry 26 at 18.)

“The United States Department of Justice has provided

administrative materials . . . . [which] are entitled to deference

because Congress directed the Department to issue implementing

regulations, provide manuals explaining the responsibilities of

covered entities, and enforce Title II in court.” Melton v. Orange

Cty. Democratic Party, 304 F. Supp. 2d 785, 787 (M.D.N.C. 2004)

(citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837, 843-44 (1984)). The Title II Technical Assistance

Manual (“Manual”) specifically provides that “Title II is intended

to apply to all programs, activities, and services provided or

operated by State and local governments.”

The Americans with Disabilities Act: Title II Technical Assistance

Manual II-1.2000 (Nov. 1993). The Manual further declares that

[p]ublic entities are not subject to [T]itle III of the

ADA, which covers only private entities. Conversely,

private entities are not subject to [T]itle II. In many

situations, however, public entities have a close

relationship to private entities that are covered by

[T]itle III, with the result that certain activities may

be at least indirectly affected by both titles.

Id., § 1.3000.

Defendant UNCHCS has not disputed the fact that it qualifies

as a public entity. (See Docket Entry 24 at 1-23; see also Docket

Entry 27 at 1-15.) However, Defendant UNCHCS appears to dispute

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its liability for actions of its affiliated entity, Defendant NHI.

(See Docket Entry 24 at 20.) As discussed previously, the Court

need not determine the relationship between Defendants (or the

ultimate significance thereof) at this stage in the proceedings,

particularly given that Title II specifically applies to “all

programs, activities, and services provided or operated by State

and local governments,” Melton, 304 F. Supp. 2d at 787.

In sum, Plaintiffs have adequately stated a claim against

Defendant UNCHCS under Title II and Section 504.

E. Section 1557 Claim - Defendant UNCHCS

Section 1557 of the Affordable Care Act, “entitled,

‘Nondiscrimination,’ provides that ‘an individual shall not, on the

ground[s] prohibited under . . . [S]ection 504 . . . be excluded

from participation in, be denied the benefits of, or be subjected

to discrimination under, any health program or activity.’” Basta,

2019 WL 3310098 at *6 (quoting 42 U.S.C. § 18116) (emphasis

omitted). Here, Defendant UNCHCS simply argues that its earlier

challenge to the sufficiency of Plaintiffs’ Title II allegations

also defeats Plaintiffs’ Section 1557 claim, because “[t]he

causation element for disability discrimination under the

Rehabilitation [A]ct is stricter than that under the ADA,” and

because “Plaintiffs assert their [Section 1557] claim in part on

the basis of discrimination due to disability.” (Docket Entry 24

at 21.) However, as discussed above, Plaintiffs have sufficiently

alleged facts to support Title II and Section 504 claims.

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F. Section 1557 Claim - Defendant NHI

Defendant NHI argues that Plaintiffs have failed to state a

claim under Section 1557 as “[e]ffective communication under

[Section 1557] does not require communication in Braille, nor is

proof of receipt required.” (Docket Entry 29 at 21.) According to

Defendant NHI, Section 1557 “requires only that ‘[a] covered entity

. . . take appropriate steps to ensure that communications with

individuals with disabilities are as effective as communications

with others in health programs and activities.’” (Id. (quoting 45

C.F.R. § 92.202) (emphasis in original).) Further, Defendant NHI

contends that Plaintiffs have “conflate[d] the allegations against

[Defendant] NHI with the allegations against [Defendant] UNC[HCS]”

and that such “conclusory statements do not meet the standards for

stating a claim.” (Id. at 21-22.)

In their response brief, Plaintiffs counter that, “[w]hile

covered entities have some flexibility to decide between auxiliary

aids that provide equally effective communication, they do not have

the option of simply failing to ensure equally effective

communication, as [Defendant NHI] has done here.” (Docket Entry 32

at 21.) Plaintiffs further maintain that the allegations set forth

in the Amended Complaint “support Plaintiffs’ claim that [Defendant

NHI] has failed and is failing to meet its obligation to provide

blind individuals an equal opportunity to use and benefit from its

health care programs and activities by failing to provide blind

patients like Plaintiff Bone with accessible formats such as

Braille.” (Id. at 22 (brackets and ellipses omitted).) Lastly,

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Plaintiffs assert that “the Amended Complaint clearly sets forth

the specific unlawful actions and omissions taken by [Defendant

NHI] that violated Section 1557.” (Id. at 23.) Defendant NHI does

not address those counter-arguments in its reply brief. (See

Docket Entry 33 at 1-15.)

As referenced previously, Section 1557 states that “‘an

individual shall not, on the ground[s] prohibited under . . .

[S]ection 504 . . . be excluded from participation in, be denied

the benefits of, or be subjected to discrimination under, any

health program or activity.’” Basta, 2019 WL 3310098, at *6

(quoting 42 U.S.C. § 18116) (emphasis omitted); see also Lockwood

v. Our Lady of the Lake Hosp., Inc., Civ. No. 17-509, 2018 WL

3451514, at *1 (M.D. La. July 17, 2018) (unpublished) (finding that

analysis of Section 504 claim would “apply equally” to Section 1557

claim as “Section 1557 . . . incorporates [Section 504]’s

definition of disability and provides the same protections for

people with disabilities as [Section 504]”). As such, pursuant to

relevant regulations, “[a] covered entity shall take appropriate

steps to ensure that communications with individuals with

disabilities are as effective as communications with others in

health programs and activities, in accordance with the standards

found at 28 CFR § 35.160 through 35.164.” 45 C.F.R. § 92.202. In

turn, the cross-referenced regulations state that “[a] public

entity shall furnish appropriate auxiliary aids and services where

necessary to afford individuals with disabilities . . . an equal

opportunity to participate in, and enjoy the benefits of, a

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service, program, or activity of a public entity.” 28 C.F.R.

§ 35.160(b)(1). Further:

In determining what types of auxiliary aids and services

are necessary, a public entity shall give primary

consideration to the requests of individuals with

disabilities. In order to be effective, auxiliary aids

and services must be provided in accessible formats, in

a timely manner, and in such a way as to protect the

privacy and independence of the individual with a

disability.

28 C.F.R. § 35.160(b)(2).

Defendant NHI correctly observes that “effective communication

with [Plaintiff] Bone does not amount to a mandate for Braille

communications” (Docket Entry 29 at 21); however, the Amended

Complaint alleges, as noted by Plaintiffs (see Docket Entry 32 at

22), that Defendant NHI failed to provide Plaintiff Bone “an

equally effective alternative method for reading print documents”

and further alleges that Defendant NHI delivered Braille documents

in an “untimely” fashion (Docket Entry 18, ¶ 82). Although Section

1557 does not mandate the provision of Braille documents, it does

require “accessible formats, in a timely manner.” 28 C.F.R.

§ 35.160(b)(2).

In addition, Defendant NHI’s argues that Plaintiffs have

“introduced new, conclusory allegations . . . that conflate the

allegations against [Defendant] NHI with the allegations against

[Defendant] UNC[HCS].” (Docket Entry 29 at 21.) Contrary to

Defendant NHI’s position, the Amended Complaint sufficiently

alleges facts to support a claim, in a non-conclusory manner, that

both Defendant UNCHCS and Defendant NHI “have failed and are

failing to meet their obligations to notify blind individuals of

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how they can obtain information in alternative formats” (Docket

Entry 18, ¶ 81), and that both “have failed and are failing to meet

their obligation to provide blind individuals with an equal

opportunity to use and benefit from their health care programs and

activities” (id., ¶ 82). Further, the Amended Complaint contains

sufficient allegations regarding Defendant UNCHCS’s relationship

with Defendant NHI. (See id., ¶¶ 13, 16, 21, 22, 33, 34, 66, 67,

68, 70, 71, 72.) Lastly, as previously discussed, Plaintiffs

addressed Defendant NHI’s contention that Defendant “NHI has not

participated in any way with any of the alleged communications with

or treatment of Plaintiff [] Miles” (Docket Entry 29 at 7), by

clarifying that “[Plaintiff] Miles does not assert any claims

against [Defendant NHI]” (Docket Entry 32 at 2 n.2).

For these reasons, Defendant NHI has not shown that Plaintiffs

failed to state a claim under Section 1557.

III. CONCLUSION

At this stage, Plaintiffs possess standing to pursue their

claims against Defendant UNCHCS. Conversely, Plaintiffs NFB and

DRNC lack standing to proceed against Defendant NHI. Further,

although Plaintiff Bone has adequately alleged facts affording him

standing (and avoiding a mootness bar) for Section 504 and Section

1557 claims against Defendant NHI, he has failed to establish

standing as to his Title III claim against Defendant NHI. Finally,

Defendants have not shown that Plaintiffs’ Title II, Section 504,

and/or Section 1557 claims fail as a matter of law.

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IT IS THEREFORE RECOMMENDED that the UNCHCS Dismissal Motion

(Docket Entry 20) be denied.

IT IS FURTHER RECOMMENDED that the NHI Dismissal Motion

(Docket Entry 28) be granted in part and denied in part as follows:

the Title III claim and all claims asserted by Plaintiffs NFB and

DRNC against Defendant NHI be dismissed for lack of standing, but

all other claims be allowed to proceed.

IT IS ORDERED that Plaintiffs’ Motion for Leave to File a

Surreply (Docket Entry 40) is GRANTED.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

September 13, 2019

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