52 F.4th 858
9th Cir.2022Background
- Mark and Lucia Bax are deaf (Mr. Bax: ASL primary; Mrs. Bax: Spanish then ASL) and received care at Doctors Medical Center of Modesto (DMC) in 2015–2017.
- DMC used a mix of communication methods: contracted in‑person ASL interpreters, video remote interpreting (VRI), and written note‑writing.
- Mr. Bax requested in‑person interpreters multiple times; DMC provided interpreters most requested days, used VRI on others (with occasional connectivity problems), and often relied on written notes.
- Plaintiffs sued under ADA Title III, Section 504 (Rehabilitation Act), Section 1557 (ACA), and California’s Unruh Act seeking injunctive and monetary relief; a co‑plaintiff accepted an offer of judgment producing an injunction against DMC, mooting the Baxes’ ADA injunctive claims.
- After a three‑day bench trial the district court found DMC provided effective communication and entered judgment for DMC; the Baxes appealed challenging factual findings and legal standards (esp. “primary consideration”).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| ADA Title III injunctive relief mootness | Baxes wanted injunctive relief against DMC’s communication practices | DMC argued Birmingham’s judgment resolving practices mooted plaintiffs’ ADA injunctive claims | Moot — district court correctly dismissed ADA injunctive claim as resolved by the offer of judgment/injunction |
| Section 504 — whether a “primary consideration” rule applies | Baxes: Section 504 should incorporate Title II’s primary consideration requirement (honor patient’s choice of auxiliary aid) | DMC: Section 504 does not contain a Title II primary consideration rule; public‑accommodation regulation shows Congress/DOJ did not intend it for Title III entities | Held: Section 504 does not impose Title II’s primary consideration rule; district court did not err refusing to apply it |
| Whether DMC provided “effective communication” (note‑writing vs ASL interpreter) | Baxes: Reliance on written notes during complex/medical communications was categorically insufficient | DMC: Effectiveness is context‑dependent; notes can be adequate in many interactions; interpreters were provided when requested often | Held: No categorical rule; district court correctly applied a day‑by‑day, totality‑of‑circumstances test and did not clearly err in finding notes effective in many instances |
| VRI reliability and compliance with VRI regulations | Baxes: VRI technical glitches (choppy video, slow connection) meant ineffective communication | DMC: Glitches were isolated; VRI and in‑person interpreters together provided effective communication | Held: Isolated technical problems did not necessarily establish ineffective communication; district court’s credibility and findings upheld |
| Section 1557 (ACA) — applicability of HHS proposed/then‑final rule (primary consideration) | Baxes: Apply Skidmore deference to HHS’s then‑proposed rule to impose primary consideration on ACA/Section 1557 claims predating final rule | DMC: Proposed rule lacked binding retroactivity; Rehabilitation Act (incorporated by §1557) does not itself require primary consideration | Held: Court declined to apply the proposed rule under Skidmore to impose primary consideration pre‑effective date; Section 1557 claims receive same analysis as Section 504 claims |
| California Unruh Act | Baxes: Unruh imposes primary consideration or independent liability | DMC: Unruh is coextensive with ADA; no separate violation if ADA/Rehabilitation Act not violated | Held: Because no federal disability discrimination was established, Unruh claims fail; primary consideration does not apply to Title III under ADA and thus not read into Unruh |
Key Cases Cited
- Updike v. Multnomah County, 870 F.3d 939 (9th Cir. 2017) (assessing auxiliary aids and effective communication under Rehabilitation Act)
- Silva v. Baptist Health S. Fla., Inc., 856 F.3d 824 (11th Cir. 2017) (reasonable auxiliary aids and no entitlement to on‑site interpreter every time)
- K.M. ex rel. Bright v. Tustin Unified Sch. Dist., 725 F.3d 1088 (9th Cir. 2013) (discussing Title II primary consideration rule and relationship to other statutes)
- Vega‑Ruiz v. Northwell Health, 992 F.3d 61 (2d Cir. 2021) (treatment of HHS proposed ACA rule and persuasive value)
- Duvall v. County of Kitsap, 260 F.3d 1124 (9th Cir. 2001) (duty to provide reasonable accommodations when need is obvious)
- Skidmore v. Swift & Co., 323 U.S. 134 (1944) (agency guidance may merit Skidmore deference based on persuasiveness)
- Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988) (agency regulations generally not given retroactive effect)