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Giustiniani v. Florida Dept. of Financial Services

United States Middle District Court of Florida
3:11-CV-792-J-37MCR, 2012 WL 2127733
June 12, 2012

Keywords: ada general, effective communication, enforcement, grievance procedure, legal concepts, medical and health care, program access, public accommodations, state & local government

Facts of the Case

Plaintiffs are two individuals who are deaf and a non-profit advocacy organization that represents people who are deaf in Florida. The individual plaintiffs were customers of Humana through Medicare and sought medical care from medical providers in the Humana network. Plaintiffs alleged that the Defendants—Florida Department of Financial Services (DFS), Commissioner of Insurance for the Office of Insurance Regulations (OIR), and Humana—violated Titles II and III of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act (“Section 504”) by failing to provide qualified American Sign Language (“ASL”) interpreters and by failing to establish ADA and Section 504 grievance procedures.

When one of the plaintiffs made an appointment with a doctor in the Humana network, the doctor’s office said that it did not provide qualified ASL interpreters. The other plaintiff’s doctor in the network used unqualified ASL interpreters on five separate occasions. That plaintiff made an appointment with another doctor in the network. This doctor also did not provide qualified ASL interpreters.

Plaintiffs also had difficulties filing grievances with Humana, DFS, and OIR. One plaintiff filed a written complaint with Humana. Humana responded slowly and refused to disclose the results of its investigation. The other plaintiff tried to file a complaint with Humana through Video Relay Service (VRS), but Humana refused to accept the complaint by VRS, even though it accepted complaints by phone. One plaintiff complained by letter to OIR, the government office that licenses Humana. OIR responded to the complaint and recommended that Plaintiff contact the Department of Justice (DOJ). Both Plaintiffs complained by letter to DFS, the government department that supervises OIR. DFS responded to one complaint and recommended that the plaintiff contact the DOJ. DFS did not respond to the other complaint.

Issues of the Case

  1. Does the failure to create an ADA and/or Section 504 grievance procedure create a private right of action?
  2. Did OIR violate Title II of the ADA by continuing to license Humana despite OIR’s knowledge that Humana discriminated against deaf individuals?

Arguments & Analysis

1. Does the failure to create an ADA and/or Section 504 grievance procedure create a private right of action?

The Middle District of Florida ruled that the ADA and 504 regulations do not create a right of action if a public entity fails to create an ADA and/or Section 504 grievance procedure. Plaintiffs argued that OIR and DFS violated Title II of the ADA and Section 504 by failing to provide dedicated ADA and Section 504 grievance procedures. The ADA and Section 504 both require public entities to adopt grievance procedures providing for prompt and equitable resolution of complaints alleging any action that would be prohibited by the ADA or Section 504. However, no other district courts in Florida or the 11th Circuit have addressed this issue. Even with that in mind, the Middle District of Florida looked at other courts’ decisions that have addressed this issue, and came to the conclusion that that the ADA and 504 regulations requiring grievance procedures do not allow individuals to bring civil cases against entities for not having such grievance procedures in place. This means that individuals cannot bring a private suit against an organization because the organization does not have grievance procedures. Therefore the court ruled that the plaintiffs did not have a claim, and granted DFS and OIR’s motions to dismiss the case.

2. Did OIR violate Title II of the ADA by continuing to license Humana despite OIR’s knowledge that Humana discriminated against deaf individuals?

The Middle District of Florida ruled that OIR did not violate Title II by continuing to license Humana despite OIR’s knowledge that Humana discriminated against individuals who are deaf. The Court found that Title II of the ADA prohibits public entities from discriminating in the administration of a licensing program, but it does not regulate the behavior of the licensees of public entities. Plaintiffs alleged that they were denied a benefit by Humana, a licensee of a public entity. Because public entities are not liable for the discriminatory behavior of their licensees, the Middle District of Florida granted OIR’s motion to dismiss.

Policy & Practice

While this case has not yet reached the 11th Circuit where it would have wider application, it could have implications for people with disabilities in Florida who would like to file grievances against their insurance companies. First, it discusses that even though public entities are required to have ADA and Section 504 grievance procedures, if a public entity does not have such procedures, an individual cannot take private action against that entity to enforce these requirements. In this case, even though the plaintiffs did not have the opportunity to submit their complaints and have the complaints properly addressed through the required ADA and Section 504 grievance procedures, these individuals could not take action against the entities that denied them their rights to do so. While the Court did not say what an individual could do if a public entity does not have ADA or Section 504 grievance procedures, the U.S. Department of Justice has acted to enforce this requirement upon receiving complaints from individuals in the past. Therefore it would be best for individuals with disabilities to contact the DOJ for assistance with these matters in the future. Second, this case discusses that public entities are not responsible for the discriminatory behavior of their licensees. This is important because it indicates that individuals with disabilities can only take action against the discriminating public accommodation (in this case the insurance company), but not the public entities that license them.

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Disclaimer

These materials do not constitute legal advice and should not be relied upon in any individual case. Please consult an attorney licensed in your state for legal advice and/or representation. These materials were prepared by the legal research staff of the Burton Blatt Institute (BBI) at Syracuse University in partnership with the Southeast ADA Center to highlight legal and policy developments relevant to civil rights protections and the impact of court decisions in the Southeast Region under the Americans with Disabilities Act (ADA). These materials are based on federal disability rights laws and court decisions in effect at the time of publication. Federal and state disability rights law can change at any time.  In addition, state and local laws and regulations may provide different or additional protections. Materials are intended solely as informal guidance, and are neither a determination of your legal rights nor responsibilities under the ADA or other federal, state, and local laws, nor binding on any agency with enforcement responsibility under the ADA. The accuracy of any information contained herein is not warranted. Any links to external websites are provided as a courtesy and are not intended to nor do they constitute an endorsement of the linked materials.

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