Baker v. Portnow

Filing 28

ORDER: Defendant Arthur S. Portnow, M.D., P.A.'s Dispositive Motion for Summary Judgment or, Alternatively, Partial Summary Judgment 19 is GRANTED. The Clerk is directed to enter judgment in favor of Defendant and CLOSE THIS CASE. Signed by Judge Virginia M. Hernandez Covington on 7/21/2015. (KNC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
REGINA BAKER,
Plaintiff,
v.

Case No.: 8:14-cv-3151-T-33TGW

ARTHUR S. PORTNOW, M.D.,
P.A., a Florida profit
corporation, d/b/a ARTHUR S.
PORTNOW, M.D., P.A.,
Defendant.
_______________________________/
ORDER
This cause comes before the Court pursuant to Defendant
Arthur

S.

Motion

Portnow,

for

Summary

M.D.,

P.A.’s

Judgment

(“Portnow”)

or,

Dispositive

Alternatively,

Partial

Summary Judgment (Doc. # 19), filed on April 28, 2015.
Plaintiff Regina Baker filed a response in opposition to the
Motion on May 21, 2015. (Doc. # 24). Thereafter, on June 4,
2015, Portnow filed a reply to Baker’s response. (Doc. # 25).
For the reasons that follow, Portnow’s Motion is granted.
I.

Background
Portnow

is

a

doctor’s

office

located

in

Sarasota,

Florida. (Doc. # 19 at 1; Doc. # 24 at 2). Portnow receives
“Medicare and/or Medicaid” payments and employed fewer than
15 employees at all times relevant to this action. (Doc. # 21

at

¶

3).

Dr.

Arthur

S.

Portnow

(“Dr.

Portnow”)

is

the

President and majority shareholder of Portnow. (Id. at ¶ 1).
Baker was born deaf and her primary language is American
Sign Language (“ASL”), and written English is her second
language. (Doc. # 21 at ¶ 4; Doc. # 24-1 at ¶¶ 1-3). Baker
was a patient of Portnow beginning in approximately 2007.
(Doc. # 21 at ¶ 2; Doc. # 24-1 at ¶ 6). For the first few
years,

Baker’s

husband

would

often,

but

not

each

time,

accompany Baker to her appointments and interpret for her, as
he was proficient in ASL. (Doc. # 21 at ¶ 5; Doc. # 24-1 at
¶ 7). A few times, someone other than Baker’s husband would
accompany Baker and interpret for her. (Doc. # 21 at ¶ 5).
However, on a few occasions, Baker appeared alone for her
appointments, and Dr. Portnow and Portnow staff communicated
with Baker through the use of written notes. (Id.).
After Baker’s husband passed away in 2009, Baker did not
see Dr. Portnow until June 21, 2010. (Doc. # 21 at ¶ 7; Doc.
# 24-1 at ¶¶ 8-9). From June 21, 2010, through 2013, Dr.
Portnow communicated with Baker through the use of written
notes during her appointments. (Doc. # 21 at ¶ 7). “Between
February

2012

and

November

2013,

[Baker]

attended

approximately twenty (20) appointments with Dr. Portnow.”
(Doc. # 24-1 at ¶ 10).

2

“Due

to

ongoing

concerns

regarding

[her]

medical

issues,” Baker called to schedule her final appointment with
Dr. Portnow, through a translation service. (Id. at ¶ 14).
When she scheduled the appointment, Baker requested that an
ASL interpreter be present at the appointment so that she
could “fully communicate [her] medical needs and concerns
with

Dr.

Portnow,

and

so

[she]

could

have

a

complete

understanding about [her] medical conditions. . . .” (Id. at
¶ 15). When she arrived at her appointment on November 14,
2013, Baker repeated her request for an ASL interpreter, at
Portnow’s

expense,

via

a

written

note

to

the

office

receptionist. (Id. at ¶ 16; Doc. # 21 at ¶ 8).
Baker
written

contends

English

is

that

her

“limited

insufficient

to

understanding
fully

of

communicate

information regarding [her] medical conditions, test results,
prescriptions,

and

future

treatment

options.

Therefore,

without an ASL interpreter [she] would not have the full
benefit of the visit with Dr. Portnow.” (Doc. # 24-1 at ¶
25). By written note, Dr. Portnow declined to provide an ASL
interpreter,

contending

that

“accommodating

that

request

would be burdensome,” and instructed Baker to find another
medical provider if she was going to require an interpreter.
(Id. at ¶ 24; Doc. # 21 at ¶ 8).

3

Baker

initiated

this

action

on

December

18,

2014,

alleging a violation of Section 504 of the Rehabilitation Act
of 1973, 29 U.S.C. § 794. (See Doc. # 1). In short, Baker
alleges

that

Portnow

discriminated

against

her

when

it

refused “to provide her with a qualified [ASL] interpreter .
. . during a scheduled office visit, despite the fact that an
[i]nterpreter was necessary for effective communication, and
despite

the

fact

that

an

[i]nterpreter

was

explicitly

requested when the appointment was scheduled.” (Doc. # 24 at
1-2). Portnow filed the present Motion on April 28, 2015 (Doc.
# 19), which is ripe for the Court’s review. (See Doc. ## 2425).
II.

Legal Standard
Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”

Fed.

R. Civ. P. 56(a). A factual dispute alone is not enough to
defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude
a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving

4

party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if
it may affect the outcome of the suit under the governing
law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997). The moving party bears the initial burden of showing
the court, by reference to materials on file, that there are
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256,
1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)). “When a moving party has discharged
its burden, the non-moving party must then ‘go beyond the
pleadings,’ and by its own affidavits, or by ‘depositions,
answers

to

interrogatories,

and

admissions

on

file,’

designate specific facts showing that there is a genuine issue
for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,
593-94 (11th Cir. 1995) (citing Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to
be true and all reasonable inferences must be drawn in the
non-moving party’s favor. Shotz v. City of Plantation, Fla.,
344 F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact
finder evaluating the evidence could draw more than one

5

inference from the facts, and if that inference introduces a
genuine issue of material fact, the court should not grant
summary judgment. Samples ex rel. Samples v. City of Atlanta,
846 F.2d 1328, 1330 (11th Cir. 1988) (citing Augusta Iron &
Steel Works, Inc. v. Emp’rs Ins. of Wausau, 835 F.2d 855, 856
(11th Cir. 1988)). However, if the non-movant’s response
consists

of

conclusional

nothing

“more

allegations,”

than

summary

a

repetition

judgment

is

of
not

his
only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034
(11th Cir. 1981), cert. denied, 456 U.S. 1010 (1982).
III.

Analysis
Baker

brings

her

claim

under

Section

504

of

the

Rehabilitation Act, which provides in relevant part that:
No 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). Program or activity is defined, amongst
other terms, as a: “private organization . . . which is
principally engaged in the business of providing . . . health
care. . . .” Id. at (b)(3)(A)(ii). It is undisputed that at
all material times, Portnow was a health care provider that
received Medicare and/or Medicaid payments, and therefore was

6

bound to adhere to the mandates of the Rehabilitation Act.
(Doc. # 21 at ¶ 3).
The implementing regulations under the Rehabilitation
Act relating to health care providers are promulgated by the
Department

of

Health

&

Human

Services

(“HHS”)

and

such

regulations are set forth in 45 C.F.R. § 84.1, et seq. These
regulations

are

recognized

“as

an

important

source

of

guidance on the meaning of [Section] 504.” Alexander v.
Choate, 469 U.S. 287, 304 n.24 (1984). One regulation states
in part that “[i]n providing health, welfare, or other social
services or benefits, a recipient may not, on the basis of
handicap . . . [d]eny a qualified handicapped person these
benefits or services.” 45 C.F.R. § 84.52(a)(1). Additionally,
a regulation addresses a provision of “auxiliary aids” to
disabled persons, stating:
(1) A recipient to which this subpart applies that
employs fifteen or more persons shall provide
appropriate auxiliary aids to persons with impaired
sensory,
manual,
or
speaking
skills,
where
necessary to afford such persons an equal
opportunity to benefit from the service in
question.
(2) The Director may require recipients with fewer
than fifteen employees to provide auxiliary aids
where the provision of aids would not significantly
impair the ability of the recipient to provide its
benefits and services.

7

(3) For the purpose of this paragraph, auxiliary
aids may include brailled and taped material,
interpreters, and other aids for persons with
impaired hearing or vision.
45 C.F.R. § 84.52(d)(1) (emphasis added); Nash v. Medina, No.
6:09-CV-382, 2010 WL 3123083, at *3 (M.D. Fla. Aug. 9,
2010)(“If Defendant employed fewer than fifteen employees,
the regulation does not state [that] an interpreter is the
required auxiliary aid in all circumstances.”).
Commentary in Appendix A to Part 84 reiterates that a
“small provider” of clinical services is not obligated under
the Rehabilitation Act to provide auxiliary aids, unless
directed to do so by the HHS Director:
Section 84.52(d), also a new provision, requires
recipients with fifteen or more employees to
provide appropriate auxiliary aids for persons with
impaired sensory, manual, or speaking skills.
Further, the Director may require a small provider
to furnish auxiliary aids where the provision of
aids would not adversely affect the ability of the
recipient to provide its health benefits or
service.
Thus
although
a
small
nonprofit
neighborhood clinic might not be obligated to have
available an interpreter for deaf persons, the
Director may require provision of such aids as may
be reasonably available to ensure that qualified
handicapped persons are not denied appropriate
benefits or services because of their handicaps.
45 C.F.R. § Pt. 84, App. A.
As authorized by section 84.52(d)(2), the HHS, through
its Director of the Office of Civil Rights (“OCR”), announced

8

in a Notice dated December 6, 2000 (“Notice”), that, effective
immediately:
The Office for Civil Rights (OCR) will require
recipients with fewer than 15 employees to provide
auxiliary aids where the provision of aids would
not significantly impair the ability of the
recipient to provide its benefits or services, and
will investigate complaints against health and
social services providers with fewer than 15
employees for failure to provide auxiliary aids to
individuals with disabilities under Section 504.
See Office for Civil Rights; Section 504 of the Rehabilitation
Act of 1973; Notice of Exercise of Authority Under 45 CFR
84.52(d)(2) Regarding Recipients With Fewer Than Fifteen
Employees, 65 FR 79368-03.
The Notice explains that “in the interest of uniformity
and consistent administration of law, Section 504's auxiliary
aids requirement should be applied to covered entities with
fewer than 15 employees, as is the case under the Americans
with Disabilities Act of 1990.” Id. It also explains that OCR
would enforce Section 504 with “thorough procedures provided
for in the Section 504 regulations.” Id.
It is undisputed that at all material times, Portnow did
not employ more than 15 individuals. (Doc. # 21 at ¶ 3).
However,

Baker

contends

that,

regardless,

Portnow

was

required to provide the requested auxiliary aid – an ASL

9

interpreter – to assist Baker with her medical appointment.
(See Doc. # 24). Thus, as Portnow failed to provide an ASL
interpreter, Baker asserts that she has a private cause of
action against Portnow. (See Doc. # 1).
According to Baker, it is well established that a private
cause of action exists under the Rehabilitation Act. (Doc. #
24 at 7)(citing Barnes v. Gorman, 536 U.S. 181 (2002)). Thus,
Baker suggests that her alleged private cause of action exists
“simply

because

the

claim

arises

under

a

regulation

promulgated pursuant to Section 504 of the Rehabilitation
act.” (Id. at 8). Namely, Baker asserts that the “Notice falls
within the scope of the statute because it simply ensures
that qualified individuals with disabilities are not excluded
from or denied benefits or discriminated against solely by
reason of the disability, by recipients of federal financial
assistance.” (Id.).
However,

Portnow

contends

that

no

private

cause

of

action “exists as the OCR has expressly retained power to
enforce the expanded obligations in Section 504.” (See Doc.
# 19). Accordingly, Portnow posits that Baker’s remedy is
“limited

to

filing

of

a

complaint

executive agency.” (Id. at 6).

10

with

the

appropriate

Thus, the issue before this Court is whether the Notice,
which provides expanded obligations upon recipients that
employ 15 or fewer individuals, provides Baker with a private
right of action. For the reasons set forth below, the Court
agrees with Portnow that no such private cause of action –
express or implied - exists. (See Doc. # 19).
Upon review, the Court concludes that “Section 504 is a
broad statutory prohibition against discrimination, while the
Notice is a limited exercise of executive discretion to
provide administrative remedies for expanded administrative
requirements.” (See Doc. # 25 at 8).
The

procedures

requirements

of

for

Section

enforcement
504

are

of

the

explained

expanded
in

the

“Supplementary Information” of the Notice. 65 FR 79368-03.
The “Supplementary Information” explains that that OCR:
[W]ill investigate complaints against health . . .
providers with fewer than 15 employees for failure
to provide auxiliary aids to individuals with
disabilities under Section 504. Determinations of
whether the provision of an auxiliary aid or
service would impose an undue burden on a small
provider will be made on a case by case basis.
* * *
OCR will enforce Section 504 as it applies to
recipients’ responsibilities under the [Notice]
through procedures provided for in the Section 504
regulations.

11

Id. (emphasis added).
The Notice further provides a list of the procedures
available to the OCR in its enforcement of these expanded
requirements,

which

include,

but

are

not

limited

to:

“complaint investigations, compliance reviews, efforts to
secure voluntary compliance and technical assistance.” Id.
The Notice concludes by assuring those affected by the
expanded obligations that:
OCR will always provide recipients with a complete
opportunity to come into voluntary compliance with
Section 504 prior to initiating formal enforcement
proceedings, and will provide technical assistance
to
help
entities
resolve
complaints
in
a
collaborative fashion with OCR.
Id.
Therefore, as stated by Portnow, “while Section 504’s
prohibition against discrimination does apply to Recipients
with fewer than 15 employees, the provision of auxiliary aids
is not a requirement of Section 504.” (Doc. # 19 at 14).
Rather, Portnow provides that “it is, instead, a requirement
of the 504 Regulations promulgated in accordance therewith;
specifically 45 C.F.R. § 84.52(d).” (Id.).
Upon review of the procedures provided for in the Notice,
the Court determines that no private cause of action is
afforded to Baker under the circumstances set forth in the

12

Complaint. In the Notice, the HHS expressly provides that the
OCR will enforce Section 504 by investigating the complaints
against recipients on a case by case basis. See 65 FR 7936803. Thus, the HHS has reserved enforcement of these matters
(i.e., use of auxiliary aids) as only the OCR can enforce the
obligations under the Notice and determine, on a case by case
basis, whether application of the requirements “would impose
an undue burden” to a recipient who employs fewer than 15
individuals. Therefore, there is no express private cause of
action for Baker, under the present circumstances. “Such a
conclusion is strictly in accord with the legal prohibition
against

private

requirements.”

enforcement

Columbia

(D.N.H.

2008)(citing

(2011)(a

regulation

v.

not

expanded

Gregory,

Alexader
is

of

v.

2008

Sandoval,

privately

WL

regulatory
4192437

532

U.S.

enforceable

if

*4
275
it

imposes an obligation beyond what the statute mandates).
However, Baker suggests that “[e]ven if, arguendo, the
Notice is the basis of the private cause of action, the Notice
should be interpreted in pari materia1 with [Section 504],

1

The rule of in pari materia requires that all statutes
relating to the same subject-matter . . . be read, construed,
and applied together, and harmonized wherever possible, so as
to ascertain the legislative intent and give effect thereto.
In re Graupner, 356 B.R. 907, 918 (Bankr. M.D. Ga. 2006) aff'd
sub nom. Graupner v. Nuvell Credit Corp., No. 4:07-CV-37CDL,

13

and not as a separate rulemaking.” (Doc. # 24 at 9). According
to Baker, “Congress passed the Rehabilitation Act to, inter
alia, empower agencies to promulgate regulations to prevent
the disabled, solely by reason of their disability, to be
denied participation in, the benefit of, or be discriminated
by

any

program

receiving

federal

financial

assistance.”

(Id.); see 29 U.S.C. § 794(a).
Baker argues that the HHS, in turn, “promulgated agency
regulations requiring, amongst other things, the provision of
auxiliary aid by recipients of federal financial assistance
with 15 or more employees, and expressly left open the
possibility for possible extension of the regulation to those
recipients with fewer than 15 employees at a later date.”
(Id. at 9-10); see 45 C.F.R. § 84.52(d). To that end, Baker
provides that “Despite being on notice that [c]ourts have
interpreted Section 504 of the Rehabilitation Act to provide
a private cause of action, HHS did not expressly preclude
this exercise of authority from providing a private cause of
action.” (Id. at 10). Therefore, Baker requests that the

2007 WL 1858291 (M.D. Ga. June 26, 2007) aff'd sub nom. In re
Graupner, 537 F.3d 1295 (11th Cir. 2008).

14

Notice be read in pari materia with Section 504, providing
Baker with a private cause of action. (Id.).
The

Supreme

Court

has

admonished

that

“implying

a

private a right of action on the basis of congressional
silence is a hazardous enterprise, at best.” Touche Ross &
Co. v. Redington, 442 U.S. 560, 576 (1979) (citation omitted).
While the Notice expanded Section 504’s requirement regarding
auxiliary aids to encompass those recipients that employ 15
or fewer individuals, the Notice did not expressly provide
for a private cause of action. Rather, the Notice indicates
that

the

OCR

“will

investigate

complaints

against

[recipients] with fewer than 15 employees for failure to
provide auxiliary aids to individuals with disabilities under
Section 504 . . . on a case by case basis.” 65 FR 79368-03.
IV.

Conclusion
Portnow

Therefore,

does

Portnow

not
is

employ
not

15

bound

or
to

more
the

individuals.
auxiliary

aid

regulations set forth in Section 504. Rather, Portnow “may”
be required to provide Baker an auxiliary aid if the OCR
determines that doing so would “not significantly impair
the

ability

of

[Portnow]

to

15

provide

its

benefits

or

services. . . .” See 45 C.F.R. § 84.52(d)(1). OCR has made
no such determination at this juncture.
According to the Notice, which imposed auxiliary aid
obligations

on

those

recipients

with

fewer

than

15

employees, if Portnow's accommodation of exchanging written
notes with Baker at her medical appointment fails to comply
with the Notice, Baker's remedy is to file a complaint with
the OCR, at which time the OCR will investigate Baker’s
complaint in accordance with the procedures enumerated
in Section 504. For the reasons set forth above, the
Court grants Portnow’s Motion.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant Arthur S. Portnow, M.D., P.A.’s Dispositive
Motion for Summary Judgment or, Alternatively, Partial
Summary Judgment (Doc. # 19) is GRANTED.

(2)

The Clerk is directed to enter judgment in favor of
Defendant and CLOSE THIS CASE.
DONE and ORDERED in Chambers in Tampa, Florida, this

21st day of July, 2015.

Copies:

All Counsel of Record

16