Esparza v. University Medical Center Management Corporation et al

Filing 53

AMENDED ORDER AND REASONS re 38 Order and Reasons denying 27 and 28 Motions to Dismiss. Signed by Judge Lance M Africk on 10/24/2017.(blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KIMBERLY ESPARZA

CIVIL ACTION

VERSUS

No. 17-4803

UNIVERSITY MEDICAL CENTER
MANAGEMENT CORPORATION ET AL.

SECTION I

AMENDED ORDER AND REASONS
Before the Court are two motions to dismiss. The first motion1 to dismiss was
filed by the Board of Supervisors of Louisiana State University and Agricultural and
Mechanical College (“the LSU Board”).

The LSU Board argues that sovereign

immunity bars the Court from hearing Esparza’s claim against it under § 1557 of the
Patient Protection and Affordable Care Act (“ACA”). As for Esparza’s claims against
the LSU Board under § 504 of the Rehabilitation Act of 1973, the LSU Board argues
that Esparza has failed to state a claim upon which the Court can grant relief.
University Medical Center Management Corporation (“UMC”) 2 and Louisiana
Children’s Medical Center (“LCMC”) also filed a motion 3 to dismiss. They argue that
Esparza’s state law claims against them are premature and as such should be
dismissed. They also argue that Esparza has failed to state claims for compensatory
damages under § 1557 of the ACA and § 504 of the Rehabilitation Act. Finally, UMC

R. Doc. No. 27.
The first amended complaint, R. Doc. No. 17, misspells “Management” as
“Mangement.”
3
R. Doc. No. 28.
1
2

1

and LCMC ask the Court to stay the case while Esparza submits her state law claims
to the requisite state administrative process.
Esparza opposes 4 both motions. For the following reasons, the Court denies
the motions.
I.
Kimberly Esparza is a deaf individual whose primary mode of communication
is American Sign Language (“ASL”). 5 UMC operates University Medical Center New
Orleans (“the hospital”), a full-service medical facility allegedly owned by the LSU
Board. 6 LCMC is UMC’s sole member. 7
From October 2016 through March 2017, Esparza visited the hospital on a
number of occasions to receive medical care, including treatment for a broken arm,
dental treatment, and lab work. 8 During these visits, the hospital did not provide a
qualified in-person sign language interpreter to assist Esparza in communicating
with staff and learning healthcare-related information. 9 Instead, the hospital offered
Esparza use of a Video Remote Interpreting (“VRI”) machine. 10

R. Doc. No. 32; R. Doc. No. 33. After the Court ordered additional briefing on the
sovereign immunity issues in the case, Esparza clarified that she opposes the LSU
Board’s motion to dismiss her § 1557 claim on sovereign immunity grounds. See R.
Doc. No. 36.
5 R. Doc. No. 17, ¶¶ 7, 20.
6 Id. ¶¶ 8, 10. According to the complaint, the LSU Board “owns” the hospital and
“contracts” with UMC to operate it. Id. ¶ 10.
7 Id. ¶ 9.
8 See id. ¶¶ 23, 30, 34, 36, 41, 45.
9 See id. ¶¶ 23, 30, 34, 36, 41-44, 45-48.
10 Id. ¶ 24. The complaint explains that VRI “is a videotelecommunication service
that uses devices such as web cameras or videophones to provide sign language or
4

2

According to Esparza, the VRI machine—the only accommodation provided by
the hospital—was “heavily pixilated.” 11 Moreover, Esparza alleges that use of the
VRI machine was not appropriate during certain visits, because she “had limited
ability [to] sign with both hands” for a certain period of time “as a result of her injury”
to her right arm. 12 The VRI machine also required “several hours to set up.” 13
As a result, Esparza contends that the VRI machine was an ineffective
accommodation, and so she had to resort to written English, or the assistance of her
mother or boyfriend to communicate with hospital staff. However, Esparza alleges
that her proficiency in written English is “limited”; 14 that her mother is not a
qualified sign language interpreter; 15 that use of her mother as an interpreter
required Esparza to relinquish her medical privacy and “embarrassed” her; 16 and
that her boyfriend is also deaf, and he had to attempt to read the lips of hospital staff
and then translate his reading of their lips into ASL. 17
Esparza requested that the hospital provide her with a qualified in-person sign
language interpreter. 18 However, the hospital refused to provide one, informing
Esparza that it would not pay for the service. 19

spoken language interpreting services through a remote or offsite interpreter.” Id. ¶
4.
11 Id. ¶ 34.
12 Id. ¶ 25.
13 Id. ¶ 24.
14 Id. ¶ 21.
15 Id. ¶ 27.
16 Id.
17 Id. ¶ 30.
18 Id. ¶¶ 34, 37.
19 Id. ¶¶ 35, 37.
3

Because the hospital did not provide a qualified in-person sign language
interpreter to assist her during her visits, Esparza alleges that she was not able to
effectively communicate with hospital staff about the “nature, scope, or consequence”
of her broken arm or dental treatment, 20 treatment options, 21 the use and side effects
of medications, 22 lab work, 23 and women’s health issues. 24 Esparza also alleges that
she was not able to understand various medical documents. 25
In response, Esparza filed the present case against UMC, LCMC, and the LSU
Board. Esparza alleges that UMC and LCMC violated her rights under Title III of
the Americans with Disabilities Act and the Louisiana Commission on Human Rights
Act. 26 Esparza also alleges that all three defendants violated her rights under § 504
of the Rehabilitation Act and § 1557 of the ACA. 27
II.
A.
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for the dismissal
of an action where the court finds that it does not possess subject matter jurisdiction
over the action. Where “a Rule 12(b)(1) motion is filed in conjunction with other Rule

Id. ¶¶ 28, 31.
Id. ¶¶ 28, 31.
22 Id. ¶ 32.
23 Id. ¶ 40.
24 Id.
25 Id. ¶¶ 41-43, 46-47.
26 Id. ¶¶ 75, 87.
27 Id. ¶¶ 97, 108. After inquiry by the Court as to whether sovereign immunity barred
Esparza’s claim against the LSU Board under Title II of the ADA, Esparza agreed to
dismiss the Title II claim with prejudice and proceed against the LSU Board under
the Rehabilitation Act and the ACA. See R. Doc. No. 34.
20
21

4

12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before
addressing any attack on the merits.” Ramming v. United States, 281 F.3d 158, 161
(5th Cir. 2001).
“A case is properly dismissed for lack of subject matter jurisdiction when the
court lacks the statutory or constitutional power to adjudicate the case.” Home
Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir.
1998). Courts may dismiss for lack of subject matter jurisdiction on any one of three
different bases: (1) the complaint alone; (2) the complaint supplemented by
undisputed facts in the record; or (3) the complaint supplemented by undisputed facts
plus the court’s resolution of disputed facts.” Clark v. Tarrant County, 798 F.2d 736,
741 (5th Cir. 1986) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)).
Where the defendant has questioned the court’s subject matter jurisdiction, the
plaintiff has the burden of “proving by a preponderance of the evidence that the trial
court does” possess the requisite jurisdiction to hear the case. Patterson v. Weinberger,
644 F.2d 521, 523 (5th Cir. 1981).
B.
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a district court
may dismiss a complaint, or any part of it, where a plaintiff has not set forth wellpleaded factual allegations that would entitle him to relief. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.
2007).

A plaintiff’s factual allegations must “raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555. In other words, a complaint “must

5

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
550 U.S. at 570)).
A facially plausible claim is one where “the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. If the well-pleaded factual allegations “do not permit the
court to infer more than the mere possibility of misconduct,” then “the complaint has
alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679
(quoting Fed. R. Civ. P. 8(a)(2)) (alteration in original).
On a Rule 12(b)(6) motion to dismiss, a court limits its review “to the complaint,
any documents attached to the complaint, and any documents attached to the motion
to dismiss that are central to the claim and referenced by the complaint.” Lone Star
Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010); see also
Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). In assessing the complaint,
the Court must accept all well-pleaded factual allegations as true and liberally
construe all such allegations in the light most favorable to the plaintiff. Spivey, 197
F.3d at 774; Lowrey v. Tex. A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997). Where
“the complaint ‘on its face show[s] a bar to relief,’” then dismissal is the appropriate
course. Cutrer v. McMillan, 308 Fed. App’x. 819, 820 (5th Cir. 2009) (quoting Clark
v. Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986)).
III.
A.

6

The LSU Board first moves to dismiss Esparza’s claim under § 1557 of the ACA
for lack of subject matter jurisdiction, contending that sovereign immunity bars the
Court from adjudicating Esparza’s § 1557 claim against it. 28 However, the LSU
Board’s position assumes that Esparza has the right to bring an individual claim
under § 1557. The Court will first address that question.
i.
Section 1557 of the ACA provides:
Except as otherwise provided for in this title (or an amendment made
by this title), an individual shall not, on the ground prohibited under
title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title IX
of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.), the Age
Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), or section 504 of the
Rehabilitation Act of 1973 (29 U.S.C. 794), be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under, any health program or activity, any part of which
is receiving Federal financial assistance, including credits, subsidies, or
contracts of insurance, or under any program or activity that is
administered by an Executive Agency or any entity established under
this title (or amendments). The enforcement mechanisms provided for
and available under such title VI, title IX, section 504, or such Age
Discrimination Act shall apply for purposes of violations of this
subsection.
42 U.S.C. § 18116(a). The ACA does not provide an express private right of action
under § 1557. As such, the Court must consider whether the ACA provides an implied
one.
The existence of an implied private right of action is determined by reference
to the four-factor test first articulated by the U.S. Supreme Court in Cort v. Ash, 422
U.S. 66 (1975):

28

See R. Doc. No. 27-1, at 9-11.
7

(1) Is this plaintiff a member of the class for whose “especial” benefit the
statute was passed? In other words, does the statute create a federal
right for this plaintiff?
(2) Is there any evidence of legislative intent, either explicit or implicit,
to create or deny a private remedy?
(3) Is it consistent with the legislative scheme to imply a private remedy?
(4) Is the cause of action one traditionally relegated to state law so that
implying a federal right of action would be inappropriate?
Lundeen v. Mineta, 291 F.3d 300, 311 (5th Cir. 2002) (quoting Louisiana Landmarks
Society, Inc., v. City of New Orleans, 85 F.3d 1119, 1122-23 (5th Cir. 1996)). When
analyzing a federal statute under Cort v. Ash, a court should “begin with the familiar
presumption that Congress did not intend to create a private right of action.”
Louisiana Landmarks Society, 85 F.3d at 1123 (internal quotation marks omitted).
The plaintiff carries the burden of showing “that Congress affirmatively
contemplated private enforcement when it passed the relevant statute.” Id. (quoting
Victorian v. Miller, 813 F.2d 718, 721 (5th Cir. 1987) (en banc)).
Other courts have concluded that § 1557 is indeed enforceable via an implied
private right of action. See Se. Penn. Trans. Auth. v. Gilead Sci., Inc., 102 F. Supp.
3d 688, 697-99 (E.D. Penn. 2015); Rumble v. Fairview Health Serv., No. 14-2037, 2015
WL 1197415, at *7 n.3 (D. Minn. Mar. 16, 2015) (Nelson, J.); Callum v. CVS Health
Corp., 137 F. Supp. 3d 817, 845-48 (D.S.C. 2015). Unsurprisingly, Esparza agrees
with these courts. 29 UMC and LCMC likewise acknowledge that “the Court would
not be remiss in recognizing an implied private right of action under § 1557” given

29

See R. Doc. No. 32, at 10-11.
8

the lack of case law to the contrary. 30 The LSU Board did not provide guidance as to
this issue, 31 despite the Court’s order to do so. 32
Applying the Cort v. Ash test to § 1557, the Court agrees with its sister courts
and concludes that § 1557 is enforceable via an implied private right of action.
Section 1557 “expressly identifies” classes of individuals that “Congress intended to
benefit”—namely, the individuals protected by the four federal nondiscrimination
statutes explicitly referenced and incorporated. Lundeen, 291 F.3d at 311 (quoting
Cannon v. University of Chicago, 441 U.S. 677, 690 (1979)); see also Franciscan
Alliance, Inc. v. Burwell, 227 F. Supp. 3d 660, 671 (N.D. Tex. 2016). Section 1557
also mirrors the rights-creating language used in those statutes. Se. Penn. Trans.
Auth., 102 F. Supp. 3d at 698; Callum, 137 F. Supp. 3d at 847. “The cross-reference
to these statutes and the use of similar rights-creating terms manifest Congressional
intent to create a private right.” Se. Penn. Trans. Auth., 102 F. Supp. 3d at 698.
Further, subsection (a) of § 1557 provides that the “enforcement mechanisms
provided for and available under” the other four statutes “shall apply for purposes of
violations of” § 1557. Those statutes all permit private rights of action. See Alexander
v. Sandoval, 532 U.S. 275, 279-80 (2001) (noting that Title VI and Title IX provided
private rights of action); Frame v. City of Arlington, 657 F.3d 215, 223 (5th Cir. 2011)
(en banc) (noting that § 504 is enforceable through an implied private right of action);
Parker v. Bd. of Super. Univ. of La.-Lafayette, 296 Fed. App’x 414, 417 (5th Cir. 2008)

See R. Doc. No. 28-1, at 20.
See R. Doc. No. 27.
32 See R. Doc. No. 25.
30
31

9

(treating the Age Discrimination Act as providing a private right of action and
specifying the statutory prerequisites to bringing a claim under it). As one court
observed, “[b]ecause Section 1557 states that the enforcement mechanisms available
under those four statutes apply to violations of Section 1557, Section 1557 necessarily
also permits private causes of action.” Rumble, 2015 WL 1197415, at *7 n.3; cf. Se.
Penn. Trans. Auth., 102 F. Supp. 3d at 698 (“[S]uch express incorporation of the
enforcement mechanisms from those statutes is probative of Congressional intent to
provide both a private right and a private remedy for violations of Section 1557.”).
Recognition of an implied private right of action to enforce § 1557 then is not
merely “consistent with the legislative scheme,” Lundeen, 291 F.3d at 311, but it is
in fact explicitly contemplated by the scheme. Moreover, as the recognition of an
implied private right of action to enforce § 504 illustrates well, see Frame, 657 F.3d
at 223, a right of action to enforce a federal nondiscrimination provision does not
unduly step on the toes of state law.
It seems abundantly clear to the Court that Congress intended to create a
private right of action to enforce § 1557—and congressional intent is the “touchstone”
of the Cort v. Ash analysis. Lundeen, 291 F.3d at 312 (quoting Louisiana Landmarks
Soc’y, 85 F.3d at 1123). Section 1557 is enforceable via an implied private right of
action. With that question settled, the Court can now address whether sovereign
immunity bars an individual, such as Esparza, from asserting a § 1557 claim against
the LSU Board in federal court.
ii.

10

The Eleventh Amendment provides that “[t]he Judicial power of the United
States shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.”

Despite the Eleventh Amendment’s

language targeting discrete categories of Article III diversity jurisdiction, the U.S.
Supreme Court has fashioned a doctrine of Eleventh Amendment sovereign immunity
defined by reference to “the Constitution’s structure, its history, and the authoritative
interpretations by this Court.” Alden v. Maine, 527 U.S. 706, 713 (1999); see also
Hans v. Louisiana, 134 U.S. 1, 13 (1890); cf. Meyers ex rel. Benzing v. Tex., 410 F.3d
236, 240-41 (5th Cir. 2005) (“‘Eleventh Amendment immunity’ is a misnomer, . . .
because that immunity is really an aspect of the Supreme Court’s concept of state
sovereign immunity and is neither derived from nor limited by the Eleventh
Amendment.”).
Sovereign immunity operates as “a constitutional limitation on the federal
judicial power.” Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98 (1984).
However, unlike other aspects of the federal courts’ subject matter jurisdiction,
sovereign immunity is waivable: “a State may consent to suit against it in federal
court.” Id. at 99. To effectuate waiver, “the State’s consent [must] be unequivocally
expressed.” Id. A court “will find waiver only where stated ‘by the most express
language or by such overwhelming implications from the text as (will) leave no room
for any other reasonable construction.’” Edelman v. Jordan, 415 U.S. 651, 673 (1974)
(quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171 (1909)). For example,

11

“[t]he mere fact that a State participates in a program through which the Federal
Government provides assistance for the operation by the State of a system of public
aid is not sufficient to establish consent on the part of the State to be sued in the
federal courts.” Id.
In addition, Congress may abrogate a state’s sovereign immunity when
exercising at least some of its constitutional powers. See Fitzpatrick v. Bitzer, 427
U.S. 445, 456 (1976) (holding that Congress has the power to abrogate state sovereign
immunity under section 5 of the Fourteenth Amendment); but see Seminole Tribe of
Fla. V. Fla., 517 U.S. 44, 72 (1996) (holding that Congress does not have the power to
abrogate state sovereign immunity under the Indian Commerce Clause). However,
as with a state’s voluntary waiver of sovereign immunity, abrogation requires “an
unequivocal expression of congressional intent to ‘overturn the constitutionally
guaranteed immunity of the several States.’” Pennhurst, 465 U.S. at 99; see also
Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 243 (1985) (“[I]t is incumbent upon
the federal courts to be certain of Congress’ intent before finding that federal law
overrides the guarantees of the Eleventh Amendment.”), superseded by An Act to
Extend and Improve the Rehabilitation Act of 1973, Pub. L. 99-506, 100 Stat. 1807
(1986). “A general authorization for suit in federal court is not the kind of unequivocal
statutory language sufficient to abrogate the Eleventh Amendment.” Id. at 246.
“When Congress chooses to subject the States to federal jurisdiction, it must do so
specifically.” Id.

12

Besides waiver and abrogation, the U.S. Supreme Court has also recognized—
as a means “to promote the vindication of federal rights,” Pennhurst, 465 U.S. at
105—that an individual may bring certain kinds of federal claims directly against
state officers in their individual capacities and avoid running up against the
sovereign immunity bar. See Ex parte Young, 209 U.S. 123, 155-56 (1908); see also
Edelman, 415 U.S. at 676 (limiting Ex parte Young actions to claims seeking
prospective injunctive relief); Seminole Tribe, 517 U.S. at 75-76 (concluding Ex parte
Young actions are not available where Congress has established a remedial scheme
to settle a particular claim, even if that scheme is inoperable). However, the Fifth
Circuit has concluded that “the LSU Board is an arm of the state and is immune from
suit under the Eleventh Amendment.” Raj v. La. St. Univ., 714 F.3d 322, 328 (5th
Cir. 2013). Unless Congress has validly abrogated Louisiana’s sovereign immunity
with respect to § 1557 claims or Louisiana has unambiguously waived its sovereign
immunity with respect to § 1557 claims, plaintiff cannot assert such claims against
the LSU Board in this Court. See Pennhurst, 465 U.S. at 98.
iii.
As the Court previously explained, § 1557 provides that “an individual shall
not, on the ground prohibited under [certain federal laws], be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under,
any health program or activity, any part of which is receiving Federal financial
assistance, including credits, subsidies, or contracts of insurance.”

13

42 U.S.C. §

18116(a) (emphasis added). 33 No provision of the ACA purports to abrogate state
sovereign immunity.

Moreover, as a general matter, “Louisiana has expressly

declined to waive its sovereign immunity under the Eleventh Amendment.” Raj, 714
F.3d at 328 (citing La. R.S. § 13:5106(A) and Richardson v. S. Univ., 118 F.3d 450,
453 (5th Cir. 1997)).
However, Title 42, United States Code, § 2000d-7 provides that:
A State shall not be immune under the Eleventh Amendment of the
Constitution of the United States from suit in Federal court for a
violation of section 504 of the Rehabilitation Act of 1973 [29 U.S.C.A. §
794], title IX of the Education Amendments of 1972 [20 U.S.C.A. § 1681
et seq.], the Age Discrimination Act of 1975 [42 U.S.C.A. § 6101 et seq.],
title VI of the Civil Rights Act of 1964 [42 U.S.C.A. § 2000d et seq.], or
the provisions of any other Federal statute prohibiting discrimination by
recipients of Federal financial assistance.
42 U.S.C. § 2000d-7(a)(1) (emphasis added). With § 2000d-7, Congress struck a
bargain with the states: if a federal statute prohibits discrimination on a certain basis
by recipients of federal money, then a state entity that receives federal money is
subject to suit in federal court for violations of that nondiscrimination provision.
This case is far from the first in this Circuit to consider § 2000d-7. The Fifth
Circuit comprehensively addressed § 2000d-7’s validity in Pace v. Bogalusa City
School Bd., 403 F.3d 272 (5th Cir. 2005) (en banc), which involved analyzing the
impact of § 2000d-7 on claims brought under § 504 and the Individuals with
Disabilities Education Act. Remarkably, the LSU Board does not even cite Pace—let
alone discuss its holding and reasoning—in a supplemental brief that this Court

33

For definitions, see 45 C.F.R. § 92.4 (eff. July 18, 2016).
14

ordered specifically respecting the applicability of § 2000d-7 to § 1557. 34 Such a
significant oversight on the part of the LSU Board cannot help but call into question
the rigor with which the LSU Board considered the issue.
As the Fifth Circuit explained in Pace, “congressional spending programs that
are enacted in pursuit of the general welfare and unambiguously condition a state’s
acceptance of federal funds on reasonably related requirements are constitutional
unless they are either (1) independently prohibited or (2) coercive.” 403 F.3d at 279
(analyzing South Dakota v. Dole, 483 U.S. 203 (1987)). “When the condition requires
a state to waive its Eleventh Amendment immunity, . . . an unambiguous statement
of the condition and its proscription on coercive inducements serve a dual role because
they ensure . . . that waiver of Eleventh Amendment immunity must be (a) knowing
and (b) voluntary.” Id.
According to the Pace court, § 2000d-7 adequately put Louisiana “on notice that,
by accepting federal money, it was waiving its Eleventh Amendment immunity.” Id.
at 284. Moreover, § 2000d-7 is not unconstitutionally coercive, as a state entity can
simply decline federal money if it wants to avoid being hauled into federal court by
an individual alleging

that the

state entity violated a covered federal

nondiscrimination law. See id. at 287. Based on these considerations, the Fifth
Circuit held that “the waiver condition set forth in § 2000d-7 is a constitutionally
permissible exercise of Congress’ spending power.” Bennett-Nelson v. La. Bd. of
Regents, 431 F.3d 448, 453 (5th Cir. 2005) (discussing Pace, 403 F.3d at 280-87).

34

See R. Doc. No. 35.
15

iv.
The holding and reasoning in Pace governs the outcome of the Court’s § 1557
sovereign immunity analysis.

In addition to the four federal nondiscrimination

statutes that are explicitly referenced—the same four referenced in and incorporated
into § 1557—§ 2000d-7 applies to “provisions of . . . Federal statute[s] prohibiting
discrimination by recipients of Federal financial assistance.” Section 1557 is a federal
nondiscrimination provision, the applicability of which turns on being a “health
program or activity” that “receiv[es] Federal financial assistance.” Cf. 29 U.S.C. §
794(a) (codifying § 504 of the Rehabilitation Act of 1973, which provides 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”). If a state entity meets § 1557’s requirements, then—pursuant to the
terms of § 2000d-7—that entity has waived its immunity against individual § 1557
claims in federal court. Cf. Pace, 403 F.3d at 285-87 (holding that Louisiana, as a
recipient of federal funds, knowingly and voluntarily waived its sovereign immunity
with respect to § 504 claims under the terms of § 2000d-7); Bennett-Nelson, 431 F.3d
at 453 (concluding that Louisiana Tech University was “an intended recipient of
federal financial assistance” and so falls within § 504 and § 2000d-7, because the
University ultimately benefited from federal student financial aid in the form of
tuition payments and other expenses).

16

In its supplemental brief addressing § 2000d-7’s impact on the § 1557 sovereign
immunity question—which, again, does not acknowledge Pace—the LSU Board
argues that “the ultimate aim of Congress under Section 1557 was to the ‘health
program or activity’ and not to the ‘recipient of Federal financial assistance.’” 35 To
support this argument, the LSU Board points to McGarry v. Univ. of Miss. Med. Ctr.,
355 Fed. App’x 853 (5th Cir. 2009), 36 which itself points to another Fifth Circuit panel
decision that concluded that “[t]he [Age Discrimination in Employment Act (ADEA)]
prohibits age discrimination by ‘employers,’ not by those who receive federal financial
assistance.” 355 Fed. App’x at 856 (quoting Sullivan v. Univ. of Tex. Health Sci. Ctr.
at Houston Dental Branch, 217 Fed. App’x 391, 395 (5th Cir. 2007)).
For starters, McGarry’s discussion of the ADEA nondiscrimination provision is
irrelevant to the Court’s § 1557 sovereign immunity analysis. The ADEA provision
does not target recipients of federal financial assistance, but rather targets employers.

Id. at 5.
The LSU Board also points to an out-of-circuit case, Levy v. Kan. Dep’t of Social
and Rehab. Serv., 789 F.3d 1164 (10th Cir. 2015). Not only is this case not binding
on the Court, but it also does not bolster the LSU Board’s position. In Levy, the Tenth
Circuit concluded that “the close relationship between [the Rehabilitation Act and
the Americans with Disabilities Act (ADA)] is not sufficient to conclude that the
Rehabilitation Act’s waiver provisions apply by implication to the ADA.” 789 F.3d at
1170. The Levy court explained that, “[i]n the absence of clear evidence that Congress
intended for states to waive their immunity under the ADA by accepting federal funds,
we will not stretch the language of the Rehabilitation Act to conclude that [a state
entity] has made a clear and voluntary waiver of its sovereign immunity for ADA
claims.” Id. at 1171.
In this case, the Court has clear evidence of Congress’s intent that § 2000d-7
would apply to § 1557: Congress explicitly conditioned applicability of § 1557 on the
receipt of federal funds, see 42 U.S.C. § 18116(a), just as Congress did with § 504, see
29 U.S.C. § 794(a). Therefore, § 1557 fits neatly within the text of § 2000d-7.
35
36

17

See 29 U.S.C. § 623(a). In contrast, § 1557 unambiguously targets recipients of
federal financial assistance. Hence, § 1557 falls squarely within the terms of § 2000d7, whereas the ADEA provision does not.

See Sullivan, 217 Fed. App’x at 395

(observing that the applicability of § 2000d-7 to a federal nondiscrimination provision
turns on whether the provision targets “recipients of Federal financial assistance”
(quoting 42 U.S.C. § 2000d-7(a)(1)).
As to the LSU Board’s unreasoned suggestion that Congress intended the
federal courts to essentially ignore the words “Federal financial assistance” in § 1557,
the Court unequivocally rejects it. If Congress did not intend § 1557 to turn on the
receipt of federal financial assistance, then all Congress had to do was delete those
words from the statute. Yet Congress passed, and the President signed, those words
into law. The Court is bound to honor their choice by giving those words their
appropriate weight. See United States v. Ramirez-Carcamo, 559 F.3d 384, 387 (5th
Cir. 2009) (“An important statutory construction principle is ‘that a statute ought,
upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or
word shall be superfluous, void, or insignificant.’” (quoting TRW v. Andrews, 534 U.S.
19, 31 (2001))).
The LSU Board also argues that “there can be no doubt that Congress is fully
aware of how to draft an effective waiver of sovereign immunity, and there is also no
doubt that Congress did not do so in drafting” § 1557. 37 The LSU Board seems
confused: § 2000d-7 is an example of a valid waiver of state sovereign immunity, see

37

R. Doc. No. 35, at 6.
18

Pace, 403 F.3d at 287, and the plain text of § 1557 fits within the four corners of that
waiver. So yes, Congress does indeed know how to draft an effective waiver—and
Congress did so with § 1557.
Despite the LSU Board’s contention to the contrary, Congress did not “hide
[any] elephants in mouseholes.” 38 Whitman v. Am. Trucking Ass’ns, 531 U.S. 457,
468 (2001). “[I]f the clear-statement requirement is met, the state is conclusively
presumed to have ‘known’ that receipt of clearly conditioned federal funds requires
the state to abide by the condition (i.e., waiver of Eleventh Amendment immunity).”
Pace, 403 F.3d at 284 (emphasis added). The Fifth Circuit—sitting en banc, no less—
upheld § 2000d-7 against a challenge by Louisiana in 2005, concluding that the
provision provided just such a clear statement. See Pace, 403 F.3d at 280-87. The
LSU Board should not be surprised, then, that §2000d-7 covers § 1557. After all, §
1557 is a federal nondiscrimination provision that bases coverage on the receipt of
federal funds.
Lastly, the LSU Board contends that “Section 1557, by its own terms, only
applies to health programs and activities under Title I of the [ACA] which, outside of
the health insurance exchanges, provide no federal funds to the States.” The LSU
Board is patently incorrect. Unless Title 42 of the U.S. Code or an amendment to it
provides otherwise, § 1557 applies to “any health program or activity, any part of
which is receiving Federal financial assistance, including credits, subsidies, or
contracts of insurance.” 42 U.S.C. 18116(a) (emphasis added). It also applies to “any

38

Id.
19

program or activity that is administered by an Executive Agency or any entity
established under” Title 42. Id. There is no statutory basis for the proposition that
§ 1557 is as circumscribed as the LSU Board contends. 39
The Court holds that § 2000d-7 applies to § 1557 of the ACA. As such, if “any
part” of a state “health program or activity” is the recipient of “Federal financial
assistance,” then sovereign immunity will not bar a federal court from adjudicating a
§ 1557 claim of discrimination. 42 U.S.C. § 18116(a). 40
B.
The LSU Board also contends that Esparza has failed to state a § 504 claim
against it. 41

Regulations promulgated by the Secretary of Health and Human Services to
implement § 1557 likewise follow the provision’s clear text and note that an entity
covered by § 1557 includes “[a]n entity that operates a health program or activity,
any part of which receives Federal financial assistance.” 45 C.F.R. § 92.4 (eff. July
18, 2016).
40 The LSU Board only argues that § 1557 cannot apply to states and their
instrumentalities. See R. Doc. No. 27-1. It does not argue that Esparza’s § 1557 claim
against it falls outside the purview of § 1557—i.e., that her allegations do not concern
a “health program or activity, any part of which is receiving Federal financial
assistance.” 42 U.S.C. § 18116(a). Therefore, the latter argument is waived. See Am.
States Ins. Co. v. Bailey (“Bailey”), 133 F.3d 363, 372 (5th Cir. 1998) (“Failure to
provide any legal or factual analysis of an issue results in waiver.”); cf. United States
v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for
truffles buried in briefs.”).
40 R. Doc. No. 27-1, at 6.
41 See R. Doc. No. 27, at 6-7. The Court notes that the LSU Board’s first motion to
dismiss objected to Esparza’s § 1557 claim on the ground that the LSU Board was not
responsible for alleged discriminatory treatment that Esparza experienced. See R.
Doc. No. 23-1. The Court dismissed the motion without prejudice and ordered the
LSU Board to refile, incorporating discussion of particular issues identified by the
Court. See R. Doc. No. 25. In its refiled motion, the LSU Board objects to Esparza’s
§ 1557 claim on sovereign immunity grounds—but it does not raise the objection from
39

20

Section 504 of the Rehabilitation Act provides that “[n]o otherwise qualified
individual with a disability in the United States . . . 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). The Fifth Circuit has noted that “[t]he ADA and the
Rehabilitation Act generally are interpreted in pari materia”—in English, the two
statutes are similarly construed. Frame, 657 F.3d at 223; see also In pari materia,
Black’s Law Dictionary (8th ed. 2004) (explaining that in pari materia is a canon of
construction whereby statutes on the same subject are construed together). As such,
jurisprudence interpreting either Title II or § 504 is applicable to both Title II and §
504. Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000).
In order for Esparza to state a § 504 claim against the LSU Board, Esparza
must allege: “(1) that [she] has a qualifying disability; (2) that [she] is being denied
the benefits of services, programs, or activities for which the [LSU Board] is
responsible, or is otherwise discriminated against by the [LSU Board]; and (3) that
such discrimination is [solely] by reason of [her] disability.” Hale v. King, 642 F.3d
492, 499 (5th Cir. 2011) (Title II standard); cf. Melton v. Dallas Area Rapid Transit,
391 F.3d 669, 676 (5th Cir. 2004) (citing Brown v. Sibley, 650 F.2d 760, 769 (5th Cir.
1981)) (articulating the elements of a § 504 claim). Esparza must also allege that the
LSU Board “receives or directly benefits from federal financial assistance.”

its original motion. As such, the argument is waived. See Bailey, 133 F.3d at 372; cf.
Dunkel, 927 F.2d at 956.
21

Lightbourn v. Cnty. of El Paso, Tex., 118 F.3d 421, 427 (5th Cir. 1997); see also 29
U.S.C. § 794(a).
The LSU Board argues that it is not “responsible” for any of the “services,
programs, or activities” of which Esparza complaints. Hale, 642 F.3d at 499. The
LSU Board points to Esparza’s allegations that the LSU Board owns the hospital, but
then contracts with UMC to operate it. 42 According to the LSU Board, because
Esparza’s “allegations stem solely from an alleged failure to receive necessary
services and not from any building access issues,” LSU cannot be held responsible
under § 504. 43
The Court disagrees with the LSU Board. Longstanding federal regulations
implementing § 504 provide that a recipient of federal financial assistance, “in
providing any aid, benefit, or service, may not, directly or through contractual,
licensing, or other arrangements, on the basis of handicap”:
(i)
(ii)

43

Afford a qualified handicapped person an opportunity to
participate in or benefit from the aid, benefit, or service that is
not equal to that afforded others; [or]

(iii)

42

Deny a qualified handicapped person the opportunity to
participate in or benefit from the aid, benefit, or service;

Provide a qualified handicapped person with an aid, benefit, or
service that is not as effective in affording equal opportunity to
obtain the same result, to gain the same benefit, or to reach the
same level of achievement as that provided to others.

R. Doc. No. 27-1, at 6.
Id.
22

28 C.F.R. § 41.51(b)(1)(i)-(iii) (emphasis added). 44 Critically, for purposes of the
Court’s analysis, federal regulations implementing Title II of the Americans with
Disabilities Act (ADA) are identical in all material respects.

See 28 C.F.R. §

35.130(b)(1)(i)-(iii) (implementing 42 U.S.C. § 12132); see also Pace, 403 F.3d at 288
(“The implementing regulations for § 504 and Title II are, in all material respects,
the same.”). This similarity is not surprising.
As the Court previously mentioned, Title II and § 504 are interpreted in pari
materia. Frame, 657 F.3d at 223. As such, the Court considers administrative
guidance concerning the meaning of the phrase “contractual, licensing, or other
arrangements” in Title II regulations as indicative of the phrase’s meaning in § 504
regulations. (The parties do not question the validity of these regulations and so
neither will the Court. Cf. Olmstead v. Zimring, 527 U.S. 581, 592 (1999) (declining
to determine the validity of federal regulations where the issue is not raised by the
parties).

Indeed, the LSU Board does not discuss, or even acknowledge, these

regulations. 45)
With respect to the phrase “contractual, licensing, or other arrangements” as
used in Title II regulations, guidance published by the U.S. Department of Justice

The Section 504 regulations at issue were first promulgated in 1978. See
Coordination of Federal Agency Enforcement of Section 504 of the Rehabilitation Act
of 1973, 43 Fed. Reg. 2132 (Jan. 13, 1978).
45 See R. Doc. No. 27-1, at 6.
44

23

(“DOJ”) 46 that addresses private correctional facilities operating as state facilities
pursuant to state contract is both instructive and persuasive:
As the [DOJ] stated in the preamble to the original title II regulation,
“[a]ll governmental activities of public entities are covered, even if they
are carried out by contractors.” 28 CFR part 35, app. A at 558 (2009). If
a prison is occupied by State prisoners and is inaccessible, the State is
responsible under title II of the ADA. The same is true for a county or
city jail. In essence, the private builder or contractor that operates the
correctional facility does so at the direction of the government entity.
Moreover, even if the State enters into a contractual, licensing, or other
arrangement for correctional services with a public entity that has its
own title II obligations, the State is still responsible for ensuring that
the other public entity complies with title II in providing these services.
Appendix

to

Part

35—Guidance

to

Revisions

to

ADA

Regulation

on

Nondiscrimination on the Basis of Disability in State and Local Government Services.
28 C.F.R. pt. 35, app. A (eff. Mar. 15, 2011) (alternation in original). In other words,
DOJ’s guidance indicates that a state entity cannot escape its obligations under Title
II by contracting out the services for which it is ultimately responsible. See, e.g.,
Armstrong v. Schwarzenegger, 622 F.3d 1058, 1066 (9th Cir. 2010) (“That a public
entity has contracted for the provision or occurrence of such services, programs and
activities seems sufficient to make them ‘the services, programs, or activities’ of that
entity” under Title II.); Phillips v. Tiona, 508 Fed. App’x 737, 753 (10th Cir. 2013)
(discussing Armstrong’s analysis of a state’s “contract obligations” under Title II with
approval); Kerr v. Heather Gardens Ass’n, No. 09-409, 2010 WL 3791484, at *11 (D.

The Attorney General has the responsibility to implement Title II via appropriate
regulations. 42 U.S.C. § 12134(a); see also Hainze, 207 F.3d at 799 (noting that Title
II “directs the Attorney General to promulgate regulations to effectuate the statute’s
purpose”).
46

24

Colo. Sept. 22, 2010) (Krieger, J.) (“[A] public entity, who contracts with another
entity to perform its duties, remains liable to ensure that the other entity performs
those duties in compliance with Title II.”). The same logic would apply with equal
force to § 504. See Frame, 657 F.3d at 223.
DOJ’s Title II Technical Assistance Manual (“Manual”) further illustrates this
view. (The U.S. Supreme Court has looked to DOJ’s Manuals for guidance in the
Title III context. See Bragdon v. Abbott, 524 U.S. 624, 646 (1998)). Describing Title
II’s relationship to Title III, the Manual provides the following two examples:
A privately owned restaurant in a State park operates for the
convenience of park users under a concession agreement with a State
department of parks. As a public accommodation, the restaurant is
subject to title III and must meet those obligations. The State
department of parks, a public entity, is subject to title II. The parks
department is obligated to ensure by contract that the restaurant is
operated in a manner that enables the parks department to meet its title
II obligations, even though the restaurant is not directly subject to title
II.
...
A private, nonprofit corporation operates a number of group homes
under contract with a State agency for the benefit of individuals with
mental disabilities. These particular homes provide a significant
enough level of social services to be considered places of public
accommodation under title III. The State agency must ensure that its
contracts are carried out in accordance with title II, and the private
entity must ensure that the homes comply with title III.
U.S. Dep’t of Justice, Title II Technical Assistance Manual: Covering State and Local
Government Programs and Services, The Americans with Disabilities Act,
https://www.ada.gov/taman2.html#II-1.1000 (last visited August 29, 2017) (emphasis
added). Adapting these examples to fit the § 504 context, where one entity that is

25

subject to § 504 enters into a contractual or agency relationship with another entity,
the first entity may be held “responsible” for the other entity’s violations of § 504. Cf.
Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 873 (9th Cir.
2004) (noting that Title III regulations used the phrase “contractual, licensing, or
other arrangements” and concluding that “[t]hese provisions make clear that private
entities otherwise covered by Title III may not avoid their obligations through
contract”).
In this case, Esparza alleges that the LSU Board and UMC are parties to a
contractual relationship whereby UMC operates the hospital on behalf of the LSU
Board. 47 More specifically, Esparza alleges that the LSU Board owns the hospital 48
and that UMC carries out healthcare services that the “LSU [Board] has the legal
authority to provide.” 49 These factual allegations are sufficient to show the LSU
Board may be responsible for Esparza’s alleged discrimination “through contractual,
licensing, or other arrangements” in violation of § 504. 28 C.F.R. § 41.51(b)(1).
IV.
A.
UMC and LCMC move to dismiss as premature Esparza’s claims against them
under the Louisiana Commission on Human Rights Act. According to UMC and
LCMC, the allegations underlying Esparza’s Louisiana Commission of Human Right

R. Doc. No. 17, ¶¶ 10-12.
In its briefing, the LSU Board does not contest Esparza’s factual allegations
concerning the relationship between the LSU Board and its co-defendants. See R.
Doc. No. 27-1; R. Doc. No. 35.
49 R. Doc. No. 17, ¶ 12.
47
48

26

Act claims against them “sound in medical malpractice.” 50 Therefore, the claims fall
within the purview of the Louisiana Medical Malpractice Act (“LMMA”), which
requires a plaintiff to submit medical malpractice claims to a medical review panel
for review prior to filing suit. 51
i.
“An action is premature when it is brought before the right to enforce it has
accrued.” Alonso v. Tulane Univ. Med. Ctr., 215 So. 3d 355, 357 (La. Ct. App. 5th Cir.
2016). “[T]he exception of prematurity neither challenges nor attempts to defeat the
elements of the plaintiff’s cause of action; instead, the defendant asserts the plaintiff
has failed to take some preliminary step necessary to make the controversy ripe for
judicial involvement.” LaCoste v. Pendleton Methodist Hosp., L.L.C., 966 So. 2d 519,
523 (La. 2007).
Under the LMMA, “[a]ll malpractice claims against health care providers . . .,
other than claims validly agreed for submission to a lawfully binding arbitration
procedure, shall be reviewed by a medical review panel.” La. R.S. § 40:1231.8(A)(1)(a).
The LMMA provides that “[n]o action against a health care provider . . ., or his insurer,
may be commenced in any court before the claimant’s proposed complaint has been
presented to a medical review panel.” 52 Id. § 40:1231.8(B)(1)(a)(i). “The Supreme
Court of Louisiana has interpreted this provision to not only require the plaintiff to

R. Doc. No. 28-1, at 12.
See id. at 10.
52 The medical review panel requirement is subject to waiver by agreement of the
parties. La. R.S. § 1231.8(B)(1)(c). Here, the defendants have not agreed to such a
waiver.
50
51

27

present the claim to a medical review panel, but also to wait until ‘the panel has
rendered its expert opinion on the merits of the complaint’ before filing suit.” Flagg
v. Stryker Corp., 819 F.3d 132, 137-38 (5th Cir. 2016) (quoting Delcambre v. Blood
Sys., Inc., 893 So. 2d 23, 27 (La. 2005)) (emphasis in original).

Federal courts

adjudicating Louisiana law claims recognize and enforce the LMMA’s procedural
prerequisite to suit. See, e.g., Taylor v. Ochsner Clinic Foundation, No. 11-1926, 112221, 2011 WL 6140885 (E.D. La. Dec. 9, 2011) (Vance, J.).
The LMMA defines “malpractice” as:
any unintentional tort or any breach of contract based on health care or
professional services rendered, or which should have been rendered, by
a health care provider, to a patient, including failure to render services
timely and the handling of a patient, including loading and unloading of
a patient, and also includes all legal responsibility of a health care
provider arising from acts or omissions during the procurement of blood
or blood components, in the training or supervision of health care
providers, or from defects in blood, tissue, transplants, drugs, and
medicines, or from defects in or failures of prosthetic devices implanted
in or used on or in the person of a patient.
La. R.S. § 40:1231.1(A)(13). The LMMA then defines “tort” as “any breach of duty or
any negligent act or omission proximately causing injury or damage to another.” Id.
§ 40:1231.1(A)(22).
To assist courts in determining whether a claim sounds in medical malpractice,
the Louisiana Supreme Court has articulated six factors to guide the analysis:
(1) whether the particular wrong is “treatment related” or caused by a
dereliction of professional skill;
(2) whether the wrong requires expert medical evidence to determine
whether the appropriate standard of care was breached;

28

(3) whether the pertinent act or omission involved assessment of the
patient’s condition;
(4) whether an incident occurred in the context of a physician-patient
relationship, or was within the scope of activities which a hospital is
licensed to perform;
(5) whether the injury would have occurred if the patient had not sought
treatment; and
(6) whether the tort alleged was intentional.
LaCoste v. Pendleton Methodist Hosp., L.L.C., 966 So. 2d 519, 524 (La. 2007) (citing
Coleman v. Deno, 813 So. 2d 303, 315-16 (La. 2002)).
A health care provider bears the burden of “show[ing] that it is entitled to a
medical review panel because the allegations fall within the LMMA.” Id. at 523-24;
see also Williamson v. Hosp. Serv. Dist. No. 1 of Jefferson, 888 So. 2d 782, 785 (La.
2004). If a health care provider satisfies its burden, then a court must dismiss the
claim. See Dading, 2005 WL 2037450, at *7.
ii.
First off, the Court must address UMC and LCMC’s argument that “the fact
that [Esparza] may have made allegations sounding in both medical malpractice and
general tort law does not remove her petition from the ‘penumbra’ of the LMMA, if a
claim for medical malpractice is stated.” 53 UMC and LCMC seem to suggest that the
Court should dismiss Esparza’s complaint as premature if, when reading all of

R. Doc. No. 28-1, at 10 (quoting Rivera v. Bolden’s Transp. Serv., Inc., 97 So. 3d
1096, 1100 (La. Ct. App. 1st Cir. 2012)).

53

29

Esparza’s allegations, the Court can discern a potential medical malpractice claim.
The Court rejects this approach.
The Court is bound to follow the Louisiana Supreme Court on questions of
Louisiana law. See In re Katrina Canal Breaches Liti., 495 F.3d 191, 206 (5th Cir.
2007).

When considering whether a plaintiff’s allegations sound in medical

malpractice, the Louisiana Supreme Court has not assumed the identity of Sherlock
Holmes on the scene of a crime, examining every factual allegation in a complaint to
see if any one of them involves medical malpractice. Rather, the Louisiana Supreme
Court has focused squarely on what the plaintiff has alleged that the hospital or
doctor did wrong: failing to repair a wheelchair, Williamson v. Hosp. Serv. Dist. No.
1 of Jefferson, 888 So. 2d 782, 789 (La. 2004); “[f]ailing to keep the patient’s bed in
the lowest position with the wheels locked,” Blevins v. Hamilton Med. Ctr., Inc., 959
So. 2d 440, 442 (La. 2007); [f]ailing to properly instruct the patient on proper use of
and safety with regard to his bed,” id. at 443. Cf. Dupuy v. NMC Operating Co., L.L.C.,
187 So. 3d 436, 440 (La. 2016) (“We find that the allegation at issue here, that the
Hospital failed to properly maintain and service the equipment utilized in the
sterilization process, including, but not limited to, the washers and sterilizers used
to sterilize the equipment used in [the plaintiff’s] surgery, is ‘treatment related.’”).
A focus on the particular wrong or wrongs alleged by a plaintiff comports well
with the Louisiana Supreme Court’s jurisprudence interpreting and applying the
LMMA. After all, that court’s six-factor test to guide determinations of whether a
claim sounds in medical malpractice focuses squarely on the alleged “particular

30

wrong.” LaCoste, 966 So. 2d at 524. Moreover, the Louisiana Supreme Court “has
steadfastly emphasized that the LMMA and its limitations on tort liability for a
qualified health care provider apply only to claims ‘arising from medical malpractice.’”
Id. “Because the [LMMA]’s limitations on the liability of health care providers are in
derogation of the rights of tort victims, the [LMMA] is to be strictly construed.”
Dupuy, 187 So. 3d at 439. “[A]ny ambiguity should be resolved in favor of the plaintiff
and against finding that the tort alleged sounds in medical malpractice.” LaCoste,
966 So. 2d at 524.
Accordingly, this Court will focus on the specific wrong alleged by Esparza: the
hospital’s failure to provide her with a qualified in-person sign language interpreter
in violation of federal and Louisiana nondiscrimination law.
iii.
The Court concludes that this alleged wrong falls outside the purview of the
LMMA. As far as the Court is aware, neither the Louisiana Supreme Court nor any
of Louisiana’s circuit courts of appeal have applied the LMMA to discrimination
claims such as Esparza’s.

This state of affairs is not particularly surprising:

Louisiana courts seem to distinguish between tort claims 54 on the one hand and

The “fountainhead of tort liability” in Louisiana law is La. Civ. C. art. 2315.
Spradlin v. Acadia-St. Landry Med. Foundation, 758 So. 2d 116, 121 n.8 (La. 2000).
Article 2315 provides that “[e]very act whatever of man that causes damage to
another obliges him by whose fault it happened to repair it.” La. Civ. C. art. 2315(A).
The Louisiana Supreme Court has declined to address “whether there is a cause of
action for damages under” article 2315 “based on the violation of a statutory law
designed to protect the injured person’s interest” where the statute does not itself
contain an express private cause of action. Spradlin, 758 So. 2d at 121 n.8.
54

31

discrimination claims on the other. See Cox v. Glazer Steel Corp., 606 So. 2d 518, 518
(La. 1992) (treating a disability discrimination claim brought pursuant to a Louisiana
nondiscrimination statute as distinct from a tort claim); Riser v. H.Y. Bell Mem’l
Apartments, 669 So. 2d 689, 692 (Ct. App. La. 2d Cir. 1996) (“[The plaintiff] cannot
recover [in tort] because there was no allegation or evidence of an act or omission
attributable to [the defendant] which was a cause in fact of her injury independent of
the discrimination claim.”). 55 If discrimination is not a tort under the LMMA, see La.
R.S. § 40:1231.1(A)(22) (defining “tort” as used in the LMMA), then Esparza is not
subject to the LMMA’s procedural requirements, see id. § 40:1231.1(A)(13) (applying
the LMMA to unintentional torts and breaches of contract).
The conclusion that Esparza’s alleged wrong is not subject to the LMMA is
buttressed by an examination of the Louisiana Supreme Court’s six-factor test for
determining whether a given allegation is covered by the LMMA. See LaCoste, 966
So. 2d at 524 (listing the six factors). This test is designed to identify wrongs resulting

The Court notes that, in two cases in the 1980s, the U.S. Court of Appeals for the
Fifth Circuit characterized discrimination claims under Louisiana labor and workers’
compensation law as torts for purposes of the applicable prescriptive period. See Jay
v. Int’l Salt Co., 868 F.2d 179, 180 (5th Cir. 1989) (concluding that an age
discrimination claim is a tort for purposes of prescription); Williams v. Conoco, Inc.,
860 F.2d 1306, 1307 (5th Cir. 1988) (same for a racial discrimination claim); cf. Shager
v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990) (Posner, J.) (“Discrimination is an
intentional tort . . . .”). However, the Williams panel did not explain the basis for its
characterization. See 860 F.2d at 1307. The Jay panel simply followed the Williams
panel. See 868 F.2d at 180. Ultimately, the Louisiana Supreme Court endorsed the
Fifth Circuit’s conclusion that the prescriptive period applicable to torts also applies
to discrimination claims, but—notably—the Louisiana Supreme Court did not itself
characterize discrimination claims as tort claims in the process. See King v. Phelps
Dunbar, L.L.P., 743 So. 2d 181, 187 (La. 1999).
55

32

from “treatment-related medical decisions”—wrongs that “directly relate to the
treatment of [a] given patient.” Billeaudeau v. Opelousas Gen. Hosp. Auth., 218 So.
3d 513, 523 (La. 2016) (emphasis added). In other words, the factors focus a court’s
inquiry on why a patient pursued medical care in the first place: what maladies
inflicted her and what medical treatment did she receive to alleviate those maladies
(as well as any additional medical issues that arose during treatment). Where the
alleged wrong is not directly related to that treatment, then the wrong is not subject
to the LMMA.
In this case, Esparza does not explicitly complain about the medical care that
she received from the hospital. Rather, she complains that the hospital violated
federal and Louisiana nondiscrimination law by failing to provide her with an
adequate accommodation for her deafness. This alleged wrong is not directly related
to the hospital’s treatment of Esparza’s broken arm or dental issues, or to the
processing of her lab work—the reasons that she sought the hospital’s services.
UMC and LCMC contend that “[t]here is no question” that Esparza’s Louisiana
Commission on Human Rights Act claims sound in medical malpractice and therefore
fall within the purview of the LMMA. 56 In support of their argument, UMC and
LCMC point to a recent decision by Judge Barbier, who dismissed as premature
allegedly similar claims brought under the Louisiana Commission on Human Rights
Act. See Bernius v. Ochsner Med. Ctr. – North Shore, L.L.C., No. 16-14730, R. Doc.
No. 33, at 20-21 (E.D. La. Dec. 15, 2016) (Barbier, J.). However, the Bernius plaintiffs

56

R. Doc. No. 28-1, at 12.
33

admitted to Judge Barbier that they had filed a complaint with a medical review
board and so Judge Barbier dismissed the claims based on that admission alone. Id.
at 20-21. Judge Barbier did not himself analyze the plaintiffs’ claims to determine
whether they fell within the purview of the LMMA.
In the end, UMC and LCMC ask this Court to hold that any discrimination
experienced in the process of receiving medical treatment converts a Louisiana law
claim challenging that discrimination into medical malpractice under the LMMA.
Yet this interpretation of the LMMA’s reach “would be very broadly applied which is
contrary to the proper strict interpretation we are bound to give” the LMMA. Blevins
v. Hamilton Med. Ctr., Inc., 959 So. 2d 440, 446 (La. 2007). The Court concludes that
the Louisiana Supreme Court would not stretch the LMMA in this new direction.
That conclusion is determinative. See In re Katrina Canal Breaches Liti., 495 F.3d
at 206 (“In the absence of a final decision by the Louisiana Supreme Court, we must
make an Erie guess and determine, in our best judgment, how that court would
resolve the issue if presented with the same case.”).
Esparza’s Louisiana Commission of Human Rights Act claims are not
premature. Therefore, the Court need not address UMC and LCMC’s request to stay
Esparza’s federal law claims, which is premised on dismissal of the Louisiana
Commission of Human Rights claims.
B.
Lastly, UMC and LCMC argue that Esparza’s claims for compensatory
damages under § 504 and § 1557 should be dismissed on the ground that Esparza

34

does not allege intentional discrimination. 57 Esparza counters that she has pleaded
factual allegations supporting a finding of intentional discrimination. 58
i.
“A plaintiff asserting a private cause of action for violations of [§ 504] may only
recover compensatory damages upon a showing of intentional discrimination.”
Delano-Pyle v. Victoria Cnty., Tex, 302 F.3d 567, 574 (5th Cir. 2002). The parties
agree that compensatory damages should also be available to a plaintiff bringing a §
1557 claim based on intentional discrimination. 59
Congress explicitly references and incorporates the “enforcement mechanisms”
under § 504 and the three other federal nondiscrimination statutes into § 1557. 42
U.S.C. § 18116(a). As § 504 permits compensatory damages as an enforcement
mechanism in instances of intentional discrimination on the basis of disability, § 1557
permits the same at least where the violation of § 1557 is premised on allegations of
disability discrimination—the protected class defined by reference to § 504. 60 The

See R. Doc. No. 28-1, at 21-25.
See R. Doc. No. 32, at 15-21.
59 See R. Doc. No. 28-1, at 22; R. Doc. No. 32, at 15.
60 Section 504 is not the only statute referenced in and incorporated into § 1557. See
42 U.S.C. § 18116(a). In total, § 1557 references and incorporated four separate
federal statutes, each of which protects a different class of individuals. See id. One
court has concluded that “Congress’s express incorporation of the enforcement
mechanisms from those four federal civil rights statutes, as well as its decision to
define the protected classes by reference thereto, manifests an intent to import the
various different standards and burdens of proof into a Section 1557 claim, depending
upon the protected class at issue.” Se. Penn. Trans. Auth., 102 F. Supp. 3d at 698-99.
Similarly, in recognizing that jurisprudence interpreting either Title II or § 504 is
equally applicable to the other, the Fifth Circuit observed that Congress explicitly
incorporated “[t]he remedies, procedures and rights” available under § 504 into Title
II. Hainze, 207 F.3d at 799 (quoting 42 U.S.C. § 12133).
57
58

35

Court need not decide more at this time. In short, to recover compensatory damages
under § 504 and § 1557, Esparza’s factual allegations must support a finding of
intentional discrimination. Delano-Pyle, 302 F.3d at 574.
ii.
The parties also argue over whether intentional discrimination requires a
showing of “discriminatory animus.” 61 In Perez v. Doctors Hosp. at Renaissance, Ltd.,
624 Fed. App’x 180 (5th Cir. 2015) (per curiam), the Fifth Circuit noted that “[w]e did
not define what we meant by intent in” Delano-Pyle v. Victoria County, Texas, 302
F.3d 567 (5th Cir. 2002). 62 624 Fed. App’x at 184. However, the Delano-Pyle panel—
in noting that a showing of intentional discrimination was required to recover
compensatory damages under § 504—cites to Carter v. Orleans Parish Pub. Sch., 725
F.2d 261 (5th Cir. 1984). 302 F.3d at 575. In Carter, the Fifth Circuit implies some
distance between an “intentional” violation of § 504 and one “manifest[ing] some
discriminatory animus.” 725 F.2d at 264; see also id. (“[The plaintiff] has never
alleged that the School Board intended to place his children in inappropriate classes
or that his children’s placement manifested discriminatory animus.”).

See R. Doc. No. 28-1, at 23; R. Doc. No. 32, at 16.
Some courts have read Delano-Pyle as rejecting deliberate indifference as an
appropriate standard for recovering compensatory damages under § 504. See Liese v.
Indian River Cnty. Hosp. Dist., 701 F.3d 334, 345 (11th Cir. 2012); S.H. ex rel. Durrell
v. Lower Merion Sch. Dist., 729 F.3d 248, 263 (3rd Cir. 2013). However, at least one
panel of the Fifth Circuit has not read Delano-Pyle to categorically reject this
standard. See Perez, 624 Fed. App’x at 184; see also Delano-Pyle, 302 F.3d at 575
(“There is no ‘deliberate indifference’ standard applicable to public entities for
purposes of the ADA or the [Rehabilitation Act]. However, in order to receive
compensatory damages for violations of the Acts, a plaintiff must show intentional
discrimination.”).
61
62

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To the Court, such distance makes sense. One can intentionally violate a
nondiscrimination law without possessing animus toward the class of people that the
law protects. For example, one might decide that compliance with the law is simply
too expensive. In such a case, money—not malice—is motivating the violation. Cf.
Alexander v. Choate, 469 U.S. 287, 295 (1985) (“Discrimination against the
handicapped was perceived by Congress to be most often the product, not of invidious
animus, but rather of thoughtlessness and indifference—of benign neglect.”). The
discrimination that results is still intentional in the sense of being “purposeful[ ],”
but it does not arise from animus. Perez, 624 Fed. App’x at 184.
UMC and LCMC correctly point out that the Fifth Circuit in Campbell v.
Lamar Inst. of Tech., 842 F.3d 375 (5th Cir. 2016) required “evidence of malice, illwill or efforts . . . to impede the disabled student’s progress” in order to recover
compensatory damages under § 504. 842 F.3d at 380 (quoting McGregor v. La. St.
Univ. Bd. of Super., 3 F.3d 850, 859 (5th Cir. 1993)) (internal quotation marks
omitted). 63 However, the Campbell panel recognized that the case concerned a
unique issue: a “university’s academic decision not to alter its program” to
accommodate a disabled student, to which a court “must defer.” 842 F.3d at 380; see
also McGregor, 3 F.3d at 859 (same).
Beyond the context of a § 504 challenge to a university program’s design, the
Fifth Circuit has not required evidence of malice or ill-will to recover compensatory
damages. See Perez, 624 Fed. App’x at 185-86; Delano-Pyle, 302 F.3d at 574-76; cf.,

63

Campbell incorrectly credits Delano-Pyle as the source of the quoted material.
37

e.g., Bartlett v. N.Y. St. Bd. of Law Examiners, 156 F.3d 321, 331 (2d Cir. 1998) (“In
the context of the Rehabilitation Act, intentional discrimination against the disabled
does not require personal animosity or ill will.”), vacated on other grounds, 527 U.S.
1031 (1999); Barber v. Colorado Dep’t of Revenue, 562 F.3d 1222, 1228 (10th Cir. 2009)
(“Intentional discrimination does not require a showing of personal ill will or
animosity toward the disabled person . . . .”); Meagley v. City of Little Rock, 639 F.3d
384, 389 (8th Cir. 2011) (adopting the deliberate indifference as the standard to
recover compensatory damages under § 504 and observing that this standard does
not require a showing of discriminatory intent); Liese v. Indian River Cnty. Hosp.
Dist., 701 F.3d 334, 348 (11th Cir. 2012) (applying the deliberate indifference
standard in the § 504 context and observing that “[t]he legislative history of the
[Rehabilitation Act] [ ] shows that Congress intended for § 504 to combat intentional
discrimination in general, not just discrimination resulting from ‘invidious animus’”
(quoting Alexander, 469 U.S. at 295)). Taking its cue from the Fifth Circuit, this
Court will not require Esparza to show discriminatory animus on the part of UMC
and LCMC in order to recover compensatory damages under either § 504 or § 1557.
The Court concludes that Esparza’s factual allegations show that UMC and
LCMC intentionally—as in “purposefully”—discriminated against her. 64 Perez, 624

Esparza asks the Court to hold that a showing of “deliberate indifference” satisfies
a plaintiff’s burden of proving intentional discrimination for purposes of recovering
compensatory damages from UMC and LCMC under § 504 and § 1557. See R. Doc.
No. 32, at 16-18. However, because the factual allegations show that UMC and
LCMC “purposefully” discriminated against Esparza, Perez, 624 Fed. App’x at 184,
the Court need not decide at this time whether a defendant’s deliberate indifference
constitutes intentional discrimination in this context, see id. (declining to decide
64

38

Fed. App’x at 184. Esparza “indicat[es] that on several occasions, an interpreter was
requested but not provided.” Id. at 185. “There is also evidence indicating that one
of the forms of communication that [the hospital] was utilizing, the VRI machines,
was often ineffective.”

Id.

The allegations show that Esparza “made repeated

requests for auxiliary aids, yet [hospital staff] failed on several occasions to provide
effective aids and . . . refused to provide an interpreter after one had been requested.”
Id. at 185-86.
Accepting the factual allegations in the complaint as true and construing them
in the light most favorable to Esparza, Esparza has stated claims for compensatory
damages under § 504 and § 1557.
V.
Accordingly,
IT IS ORDERED that the motions are DENIED.

New Orleans, Louisiana, October 24, 2017.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

whether deliberate indifference is sufficient to recover compensatory damages under
§ 504 where the facts support a finding of “purposeful[ ]” discrimination).
39