# BONE v. UNIVERSITY OF NORTH CAROLINA HEALTH CARE SYSTEM

> District Court, M.D. North Carolina · September 13, 2019

URL: https://www.frixlaw.com/law-library/cases/10253389

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** September 13, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10253389

## How later opinions describe it (automated extraction)

- stating that “proving the failure to provide a means of effective communication, on its own, permits [] injunctive relief”
- 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”
- noting that “[a] plaintiff’s standing to bring a case does not depend upon his ultimate success on the merits underlying his case”
- finding injunctive relief inappropriate absent evidence to suggest that the plaintiff was “likely to return to [the defendant hospital] in the near future”
- 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”

## Opinion text

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].
-4-
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.
-18-
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
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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
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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]
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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
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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
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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253389. Public record. Not legal advice.