United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
S. Shah United States District Judge.
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.
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.
Audia is a 63-year-old woman who is profoundly deaf. 
¶ 3.Audia's hearing has been impaired since
childhood, and she lost total hearing at the age of 55. 
¶ 10. Audia primarily communicates through American Sign
Language, with very limited ability to verbalize speech and
read lips.  ¶¶ 3, 10. When she uses lip reading
and written notes to communicate, she is only able to
understand a small part of the conversation.  ¶ 10.
March 2015, Audia fell and received a laceration to her head.
 ¶ 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.  ¶ 11. Upon arrival, Audia was diagnosed
with a number of ailments, including major depressive
disorder, balance and gait issues, osteoarthritis, and low
back pain.  ¶ 11.
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.  ¶¶ 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.  ¶¶ 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.  ¶ 14.
Audia was not able to effectively communicate with Briar
Place's staff, her discharge was delayed.  ¶ 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. The lack of effective communication
caused Audia frustration, fear, and emotional distress. 
¶ 16. Audia was finally discharged on July 31, 2017, 866
days after she was admitted.  ¶ 11.
Count I: Rehabilitation Act
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).
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.
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.”  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.”
 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.”  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  ¶¶ 6, 14. Requests that go
unanswered can support a finding of ...