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Audia v. Briar Place, Ltd.

United States District Court, N.D. Illinois, Eastern Division

April 24, 2018

Kathleen Audia, Plaintiff,
v.
Briar Place, Ltd., Defendant.

          MEMORANDUM OPINION AND ORDER

          Manish S. Shah United States District Judge.

         Plaintiff Kathleen Audia was a resident at a nursing and rehabilitation facility owned and operated by defendant Briar Place, Ltd. Audia is profoundly deaf. During her stay at the Briar Place facility, Audia had to communicate with staff by reading lips and exchanging written notes, despite her requests for an American Sign Language interpreter. Audia claims that Briar Place breached its duties to her and discriminated against her by failing to provide effective methods of communication. Audia brings claims based on the Rehabilitation Act, the Patient Protection and Affordable Care Act, negligence, and the Illinois Nursing Home Care Act. Briar Place moves to dismiss portions of the amended complaint based on the failure to state a claim. For the following reasons, the motion is granted in part, denied in part.

         I. Legal Standards

         A complaint must contain factual allegations that plausibly suggest a right to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). I must accept as true all of the facts alleged in the complaint and draw reasonable inferences from those facts in plaintiff's favor, but I am not required to accept as true the complaint's legal conclusions. Id. at 678-79.

         II. Facts

         Kathleen Audia is a 63-year-old woman who is profoundly deaf. [15] ¶ 3.[1]Audia's hearing has been impaired since childhood, and she lost total hearing at the age of 55. [15] ¶ 10. Audia primarily communicates through American Sign Language, with very limited ability to verbalize speech and read lips. [15] ¶¶ 3, 10. When she uses lip reading and written notes to communicate, she is only able to understand a small part of the conversation. [15] ¶ 10.

         In March 2015, Audia fell and received a laceration to her head. [15] ¶ 11. After being discharged from the hospital and spending a few days at another facility, Audia became a resident of Briar Place's nursing and rehabilitation facility. [15] ¶ 11. Upon arrival, Audia was diagnosed with a number of ailments, including major depressive disorder, balance and gait issues, osteoarthritis, and low back pain. [15] ¶ 11.

         Throughout her time at the Briar Place facility, Audia was required to use lip reading or written notes to communicate with the staff, even though she repeatedly requested an ASL interpreter. [15] ¶¶ 6, 13, 14. Audia was limited to reading lips and exchanging written notes at a number of her sessions with staff, including, among others, initial admission assessments; development of her care plan; nursing, social service, dietary, and recreation assessments; nursing evaluations of her medical condition; physician and nurse practitioner evaluations; mental health evaluations; and discharge planning conferences. [15] ¶¶ 6, 13. Audia was also not allowed to walk outside alone because she repeatedly failed Briar Place's evaluations since she did not understand what she was being asked. [15] ¶ 14.

         Because Audia was not able to effectively communicate with Briar Place's staff, her discharge was delayed. [15] ¶ 15. She did not understand her right to request a discharge or what she needed to do to satisfy Briar Place's discharge criteria. [15] ¶ 15. The lack of effective communication caused Audia frustration, fear, and emotional distress. [15] ¶ 16. Audia was finally discharged on July 31, 2017, 866 days after she was admitted. [15] ¶ 11.

         III. Analysis

         A. Count I: Rehabilitation Act

         The Rehabilitation Act prohibits, among other things, discrimination against a “qualified individual with a disability” solely on the basis of her disability in a program receiving federal financial assistance. 29 U.S.C. § 794(a). To state a claim under the Act, Audia must allege that “(1) [she] is a qualified person (2) with a disability and (3) [Briar Place] denied [her] access to a program or activity because of [her] disability.” Jaros v. Illinois Dep't of Corr., 684 F.3d 667, 672 (7th Cir. 2012). “Refusing to make reasonable accommodations is tantamount to denying access.” Id. Audia must also allege that Briar Place received federal financial assistance. Novak v. Bd. of Trustees of S. Illinois Univ., 777 F.3d 966, 974 (7th Cir. 2015). And in order to receive compensatory damages under the Act, Audia must sufficiently plead that the discrimination was intentional. See Reed v. Columbia St. Mary's Hosp., 782 F.3d 331, 337 (7th Cir. 2015).

         Audia argues that by not providing her with an ASL interpreter (or other appropriate aid), Briar Place intentionally deprived Audia of her ability to effectively communicate with the Briar Place staff and, as a result, prevented her from enjoying the benefits offered to others who did not have her disability. Briar Place does not contest that it receives federal financial assistance or that Audia is a qualified person with a disability. Instead, its primary argument is that Audia has not sufficiently pleaded that any alleged discrimination was intentional. Although the Seventh Circuit has not yet clarified whether intentional discrimination in this context requires a showing of discriminatory animus or deliberate indifference, Strominger v. Brock, 592 Fed.Appx. 508, 511 (7th Cir. 2014), the majority approach is to apply the deliberate indifference standard. See Everett v. Baldwin, No. 13 C 04697, 2016 WL 8711476, at *10 (N.D. Ill. Jan. 15, 2016). Deliberate indifference “does not require personal animosity or ill will but rather may be inferred when there is knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that likelihood.” Id. (citation omitted). Both Audia and Briar Place apply the deliberate indifference standard, so I will too.

         Briar Place raises the facts in Everett in an effort to distinguish the case here. Briar Place summarizes: “The Everett plaintiff . . . alleged repeated requests for reassignment in compliance with his permits . . . and his multiple formal grievances. These complaints should have alerted the correctional center defendants of the need to accommodate his medical condition, and the failure to do so suggests deliberate indifference to Everett's medical needs.” [20] at 4; Everett, 2016 WL 8711476, at *10. Briar Place also tries to distinguish itself from another case, in which “the plaintiff, who had Parkinson's disease and could not write, alleged deliberate indifference when defendants refused to enforce a court order for access to the library and typewriter.” [20] at 4; Hildreth v. Cook Cty., No. 08 C 3506, 2010 WL 1656810, at *3 (N.D. Ill. Apr. 23, 2010). Briar Place uses Everett and Hildreth to show that Audia's complaint does not allege that Briar Place “violated any court order or failed to honor a medical prescription.” [20] at 4. But that misses the point. The Everett and Hildreth defendants were told what the plaintiffs needed but did not provide what was requested, giving rise to a reasonable inference of deliberate indifference. That is what Audia has pleaded. She alleges that she repeatedly asked Briar Place for an ASL interpreter, but Briar Place did not give her one. See [15] ΒΆΒΆ 6, 14. Requests that go unanswered can support a finding of ...


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