Number range CHAPTER **[IN THE UNITED STATES DISTRICT
COURT]{.underline}**

**[FOR THE DISTRICT OF COLUMBIA]{.underline}**

)

SUSAN KOVACS, )

)

Plaintiff, )

) Civil Action 93-2576

) PLF

v\. )

)

)

DR. FUMIKAZU KAWAKAMI, )

)

Defendant. )

)

**UNITED STATES\' MEMORANDUM OF LAW AS [AMICUS CURIAE]{.underline} IN
SUPPORT OF PLAINTIFF\'S MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO
DEFENDANT\'S MOTION**

**[I. INTRODUCTION]{.underline}**

Plaintiff Susan Kovacs is deaf. On December 2, 1993, she had an
appointment to see the defendant, Dr. Fumikazu Kawakami, a physician who
is a pulmonary specialist. Although there is disagreement between the
parties regarding some of the facts surrounding the appointment, there
is no dispute that the following written notes were exchanged between
Ms. Kovacs and Mrs. Vella Kawakami, a general assistant in defendant\'s
office, on December 2, 1993:

> Mrs. Kawakami: \"Who send (sic) you here? We cannot take you because
> we cannot communicate w/ you.\"
>
> Ms. Kovacs: \"First of all I have the information that you may need
> for deaf patients. I was referred here by Providence Hosp\[ital\].\"
>
> Mrs. Kawakami: \"As I said we cannot communicate w/ you because we do
> not know sign language.\"

Mrs. Kawakami then left the reception area and when she returned wrote
the following:

> \"The doctor said you have to bring your family who can talk.\"

Ms. Kovacs then placed her materials regarding the ADA on the desk and
left the office.

Ms. Kovacs filed this lawsuit alleging that Dr. Kawakami has
discriminated against her on the basis of her disability, deafness, in
violation of the Americans with Disabilities Act (ADA), 42 U.S.C. §§
12101-12213. The case is now before the Court on cross-motions for
summary judgment. Defendant\'s motion asserts that Ms. Kovacs lacks
standing. Ms. Kovacs claims, based on the above exchange, and other
undisputed facts, that she is entitled to judgment as a matter of law.

The United States submits that, on the basis of this note exchange and
other undisputed facts, defendant\'s actions violate the ADA. This
violation does not turn on whether Ms. Kovacs or any of the others who
acted on her behalf effectively requested a sign language interpreter
for her appointment. Instead, this is a very straightforward case of
denial of treatment \-- outright exclusion \-- and unequal treatment, on
the basis of disability. Defendant refused to treat Ms. Kovacs during
her scheduled appointment on the basis of her disability, even though
communication was proceeding through written notes.

Plaintiff did not attempt to see Dr. Kawakami again. Under title III of
the ADA, \"a person with a disability \[is not\] require\[d\] to engage
in a futile gesture if such person has actual notice that a person or
organization covered by \[title III\] does not intend to comply with its
provisions.\" 42 U.S.C. § 12188(a)(1). Defendant indicated his intent to
discriminate in the future by conditioning the receipt of his services
on Ms. Kovacs bringing a family member \"who can talk.\" Defendant\'s
abandonment of that condition and his promise to afford communication
assistance in the future, coming as they do in the course of defending
this suit, are insufficient to defeat plaintiff\'s standing and avoid
injunctive relief.

The United States as [amicus]{.underline} [curiae]{.underline} urges the
Court to rule: a) that plaintiff has standing to bring her claims for
declaratory and injunctive relief; and b) that undisputed facts
establish that defendant\'s actions violate the Americans with
Disabilities Act. Accordingly, plaintiff\'s motion for summary judgment
should be granted and defendant\'s motion should be denied.

**[II. FACTS]{.underline}**

A. [Susan Kovacs\' Positive Test for Exposure to Tuberculosis and Record
of Respiratory Ailments]{.underline}

Susan Kovacs is a 48 year-old deaf woman who is a full-time
undergraduate student at Gallaudet University in northeast Washington,
D.C. Plaintiff\'s Rule 108(H) Statement at ¶¶ 1,2.[^1] All of the
members of Ms. Kovacs\' family are deaf, and her four children also
attend Gallaudet University. Deposition of Susan Kovacs at 8
(hereinafter referred to as \"Kovacs Dep.\"). In the fall of 1993, Ms.
Kovacs experienced breathing difficulties and coughing problems and
sought medical treatment at the Gallaudet University Health Service. ¶
6; Kovacs Dep. at 17-19, ¶ 7. On November 19, 1993, Ms. Kovacs was given
a skin test to determine exposure to tuberculosis. The test was positive
and she was told to obtain a chest x-ray at Providence Hospital to
determine whether she had active tuberculosis. ¶¶ 4, 5.

Ms. Kovacs had a chest x-ray at Providence Hospital on November 26,
1993, which was negative for active tuberculosis.[^2] On or about
November 29, 1993, Ms. Kovacs went again to the emergency room at
Providence Hospital with a hacking cough, fatigue and difficulty
breathing. Complaint Exhibit I. Hospital records note that Ms. Kovacs\'
complaint in coming to the Emergency Department was \"\'shortness of
breath, cough,\'\" ¶ 11, and the Hospital\'s Diagnostic Impressions
remarked that Ms. Kovacs was a \"\'TB converter\'\" and had a
\"\'nocturnal cough.\'\" ¶ 12. The attending physician advised Ms.
Kovacs to seek further medical consultation with a pulmonary specialist
within the next five to seven days and referred her to Dr. Kawakami. ¶
14. B. [Ms. Kovacs\' Efforts to Contact Dr. Kawakami]{.underline}

On or about the same day of the visit to the Providence Hospital
Emergency Department (November 29, 1993), Ms. Kovacs placed a call
through the D.C. relay service[^3] to Dr. Kawakami\'s office. The call
was received by Maria Teresita San Juan, a part-time billing clerk
employed by Dr. Kawakami, with occasional responsibility for answering
the phone. ¶ 23. Ms. Kovacs scheduled an appointment for December 2,
1993. Before December 2, Ms. Kovacs sought assistance first from
Providence Hospital and later the National Center for Law and Deafness
in an effort to ensure that a sign language interpreter would be
available for her appointment with Dr. Kawakami.[^4] Ms. Kovacs told Ms.
San Juan that she had tested positive for exposure to tuberculosis.[^5]

> C. [Departure from Dr. Kawakami\'s Office Protocol in Handling Ms.
> Kovacs\' Appointment]{.underline}

Mrs. Kawakami testified that, when new patients call to make an
appointment with Dr. Kawakami, the office follows a routine protocol.
The office asks the person\'s name, age, telephone number, as well as
referral and insurance information. New patients are also instructed to
bring a photo I.D., insurance I.D., medicine, and x-rays. Vella Kawakami
Dep. at 20-21, 25.[^6] Upon arrival for appointments in Dr. Kawakami\'s
office, new patients are routinely asked to sign in, and are given forms
to fill out requesting basic patient information and insurance data.
Vella Kawakami Dep. at 28, 30. If a patient who has been referred from
Providence Hospital (which is next door to Dr. Kawakami\'s office) does
not have with them the x-rays taken there, someone from the doctor\'s
office or the patient will be sent next door to get them. Vella Kawakami
Dep. at 26.[^7]

None of these procedures were followed with respect to Ms. Kovacs. Ms.
San Juan did not ask Ms. Kovacs to bring her x-rays with her to the
appointment although she had been trained to make such requests
routinely. Vella Kawakami Dep. at 25. When Ms. Kovacs arrived for her
December 2 appointment with Dr. Kawakami, she was not provided with a
new patient form. Ms. Kovacs was not asked her age, telephone number, or
insurance information. No inquiries were made about her x-rays or other
tests from Providence Hospital. This preliminary exchange of information
could have taken place with handwritten notes. Instead, the notes
described above were exchanged and Ms. Kovacs left the office without
seeing Dr. Kawakami.

> D. [Ms. Kovacs\' Future Needs to Seek Medical Care]{.underline}
>
> [from Dr. Kawakami]{.underline}

After being turned away by Dr. Kawakami, Ms. Kovacs sought and received
medical care from another pulmonary specialist. However, Ms. Kovacs
remains concerned about the health of her lungs and, as future problems
develop, she states that she would like to return to Dr. Kawakami for
future treatment; she believes he is the best doctor for her condition
since Providence Hospital referred her to him. Aff. of Susan Kovacs at ¶
4. Ms. Kovacs\' health concerns and the likelihood that she will require
the services of a pulmonary specialist in the future are not without
basis. When asked in his deposition how long people remain positive for
tuberculosis, Dr. Kawakami answered, \"[Rest of their
lives.]{.underline}\" F. Kawakami Dep. at 54-55 (emphasis added). Once
someone has tested positive for exposure, active tuberculosis can
develop at any time. F. Kawakami Dep. at 61. Ms. Kovacs\' tuberculin
skin test or \"PPD\" result showed a reaction of over 10 millimeters,
which generally represents infection with Mycobacterium
tuberculosis.[^8] Approximately 25 percent of individuals exposed to
Mycobacterium tuberculosis become infected. Of those, about 10 percent
will develop clinically active tuberculosis at some point in their
lives.\")[^9]

The possibility that Ms. Kovacs will develop active tuberculosis is
especially high during the next few years, assuming that her positive
PPD resulted from recent exposure. [See]{.underline} F. Kawakami Dep. at
71-72; 55 (\"[\[if\] PPD is positive, negative chest x-ray, you have a
certain increased chance to get active tuberculosis for the next three
or four years]{.underline}.\")

Ms. Kovacs continues to be confused concerning the appropriate course of
treatment for persons in her condition. As recently as mid-December
1994, Ms. Kovacs was still under the impression that she was supposed to
obtain a chest x-ray every year.[^10] Ms. Kovacs\' deposition also
reveals confusion regarding the INH drug discussed by Dr. Kawakami in
his deposition at 64-74. [See]{.underline} Kovacs Dep. at 59-65 (stating
that she \"wanted some more knowledge\" about whether she should take
the INH drug, and reciting varying advice received from medical
practitioners regarding whether she could take INH drug).[^11] Ms.
Kovacs\' uncertainty regarding the proper course of preventive treatment
for her condition is significant; as the attached 1992 \"Public Health
Report\" issued by the Department of Health and Human Services states,
\"patients\' understanding of their symptoms and their assessment of
available health care resources are widely acknowledged as crucial to
tuberculosis control.\"[^12] All of the foregoing make it likely that
Ms. Kovacs will seek further medical advice from a pulmonary
specialist.[^13]

Ms. Kovacs attends Gallaudet University which offers medical care to its
students through the Student Health Service. The Student Health Service
refers patients needing emergency room treatment primarily to Providence
Hospital and the Washington Hospital Center, because both facilities are
within a five-mile radius of Gallaudet University and are accessible by
public transportation.[^14] Students needing x-rays are primarily
referred to Providence Hospital, due to its simplified procedures for
obtaining x-rays.[^15] Dr. Kawakami is one of only four pulmonary
specialists to whom Providence Hospital refers patients. F. Kawakami
Dep. at 48-49.[^16] Dr. Kawakami\'s office is also located conveniently
for Ms. Kovacs, since she resides in a dormitory at Gallaudet
University.

**[III. ARGUMENT]{.underline}**

A. SUSAN KOVACS HAS STANDING TO ASSERT CLAIMS FOR

> DECLARATORY AND INJUNCTIVE RELIEF
>
> 1\. [Standing for Private Rights of Action Under the ADA is Critical
> to Effective Enforcement of this Important Civil Rights
> Law]{.underline}

The Americans with Disabilities Act of 1990 is a sweeping civil rights
law designed to \"provide a clear and comprehensive national mandate for
the elimination of discrimination against persons with disabilities.\"
42 U.S.C. § 12101 (b)(1). In passing the ADA, Congress expressly found:

> unlike individuals who have experienced discrimination on the basis of
> race, color, sex, national origin, religion, or age, individuals who
> have experienced discrimination on the basis of disability have often
> had [no legal recourse]{.underline} to redress such discrimination.

42 U.S.C. § 12101 (a)(4) (emphasis added). Thus, Congress stated that a
primary purpose of the ADA is \"to provide clear, strong, consistent,
[enforceable]{.underline} standards addressing discrimination against
individuals with disabilities.\" Section 12101 (b)(2).

A key enforcement mechanism is the statute\'s private right of action
allowing individuals to sue for injunctive and declaratory relief.[^17]
Under defendant\'s view of standing, however, this private right of
action would be rendered a nullity.

Because damages are not available in private suits under title III of
the ADA, a finding that Ms. Kovacs lacks standing would deprive Ms.
Kovacs of a forum in which to vindicate her civil rights. To deny
plaintiff such a forum where defendant so plainly violates her rights,
both by denying her services on the basis of her disability, and by
placing discriminatory conditions on her future health care,
[see]{.underline} [discussion]{.underline} [infra]{.underline} at 30-45,
would afford Ms. Kovacs \"no legal recourse to redress\" discrimination,
and would render the promises of the ADA meaningless. Moreover, the
failure to hear plaintiff\'s claim would effectively immunize the sort
of discrimination perpetrated by defendant. Such a concern for
evisceration of the effectiveness of federal law was raised in [City of
Los Angeles v. Lyons]{.underline}, 461 U.S. 95 (1983) a case upon which
defendant heavily relies. [Id.]{.underline} at 112-3 (because of the
availability of damages, \"withholding injunctive relief does not mean
that the \'federal law will exercise no deterrent effect in these
circumstances\'\" [quoting from]{.underline} [O\'Shea v.
Littleton]{.underline}, 414 U.S. 488 at 503 (1974)).

Under the ADA as under the Fair Housing Act, and the Civil Rights Act of
1964, suits by \"private attorneys general\" are

critical to successful enforcement of the law where federal enforcement
resources are limited. [Trafficante v. Metropolitan Life Ins.
Co.]{.underline}, 409 U.S. 205, 211 (1972) (\"\[S\]ince the enormity of
the task of assuring fair housing makes the task of the Attorney General
in the matter minimal, the main generating force must be private suits
in which. . . the complainants act not only on their own behalf but also
\'as private attorneys general in vindicating a policy that Congress
considered to be of the highest priority.\'\");[^18] [Newman v. Piggy
Park Enters., Inc.]{.underline}, 390 U.S. 400, 401 (1968) (private
attorneys general critical for enforcement of Title II of the Civil
Rights Act of 1964).[^19] Congress considered access to essential
services like health care to be of the highest priority. In passing the
ADA, Congress explicitly found that \"discrimination against individuals
with disabilities persists in such critical areas as . . . health
services.\" 42 U.S.C. § 12101(a)(3).

The ADA plainly covers discrimination like that perpetrated against Ms.
Kovacs. [See]{.underline} discussion [infra]{.underline}. The statute
provides relief to:

> \[A\]ny person who is being subjected to discrimination on the basis
> of disability in violation of this title . . . Nothing in this section
> shall require a person with a disability to engage in a futile gesture
> if such person has actual notice that a person or organization covered
> by this title does not intend to comply with its provisions.

42 U.S.C. § 12188(a). Ms. Kovacs was subjected to discrimination on the
basis of disability during her scheduled appointment. The discriminatory
condition defendant placed on her future services \-- accompaniment by a
family member \"who can talk\" \-- gave Ms. Kovacs\' such actual notice
that defendant did not intend to comply with the ADA for subsequent
visits. As noted [infra]{.underline}, she was not then obligated to
engage in the \"futile gesture\" of returning to his office and
subjecting herself to ongoing discrimination in order to preserve a
claim against Dr. Kawakami. [Id.]{.underline} As with other civil rights
statutes, standing under the ADA should be interpreted as broadly as
permissible under the Constitution. [Havens Realty Corp. v.
Coleman]{.underline}, 455 U.S. 363, 372 (1982); [Trafficante v.
Metropolitan Life Ins. Co.]{.underline}, 409 U.S. 205 (1972); [see
also]{.underline} [Gladstone Realtors v. Village of
Bellwood]{.underline}, 441 U.S. 91 (1979).

2\. [Defendant\'s Discrimination Imposes Actual or Imminent
Injury]{.underline}

Defendant argues that Ms. Kovacs has failed to show injury that is \"(a)
concrete and particularized, and (b) actual or imminent,\" in order to
establish standing. [Lujan v. Defenders of Wildlife]{.underline}, \_\_\_
U.S. \_\_\_, 112 S.Ct 2130, 2136 (1992). First, he asserts that she has
no further need for the services of a pulmonary specialist. Second, he
promises that should she wish to see him in the future, he would provide
a sign language interpreter for any appointment. Defendant\'s arguments
are without merit.

a.  [It is Likely that Ms. Kovacs will Return to Dr. Kawakami\'s
    Office]{.underline}

What constitutes sufficient injury turns on the factual and legal
contexts presented in a given case. As the Supreme Court has explained,
standing does not lend itself to mathematically precise evaluations, and
is to be determined chiefly by comparing the facts and allegations of
the case at issue to prior standing cases. [Allen v.
Wright]{.underline}, 468 U.S. 737, 751-752 (1984);[^20]
[see]{.underline} [also]{.underline} [Foundation on Economic Trends v.
Lyng]{.underline}, 943 F.2d 79, 82 (D.C. Cir. 1991) (quoting Justice
Frankfurter\'s view of standing which \"is more or less determined by
the specific circumstances of individual situations.\" (citation
omitted)).

The facts in the instant case show that Ms. Kovacs is threatened with an
injury that is \"real and immediate,\" and impending. Undisputed facts
regarding Ms. Kovacs\' positive test for exposure to tuberculosis, her
bouts with respiratory ailments, and the confusion she exhibits
regarding her medical condition all make it likely that Ms. Kovacs will
again seek the services of a pulmonary specialist. Undisputed facts
regarding the doctor\'s proximity to her residence and his relationship
with Providence Hospital where Gallaudet refers students make it likely
that Dr. Kawakami is the pulmonary specialist by whom Ms. Kovacs will be
treated.

In his motion for summary judgment, defendant repeatedly emphasizes that
Ms. Kovacs\' chest x-ray came back negative, and that she therefore has
no immediate need to see Dr. Kawakami. Defendant characterizes Ms.
Kovacs\' infection with Mycrobacterium tuberculosis as a mere
\"episode\" that is now \"complete and finished.\"[^21] But defendant
has already testified to the contrary. In his deposition, Dr. Kawakami
confirmed that a positive PPD test signals a chronic condition that puts
an individual at greater risk for developing active tuberculosis
throughout her life. F. Kawakami Dep. at 55. Further, Dr. Kawakami
testified that the risk is greatest during the first few years following
exposure. [See]{.underline} [supra]{.underline} at 9. He also testified
that someone who tests positive and has a negative chest x-ray, but is
experiencing a lot of coughing and difficulty breathing should see a
pulmonary specialist. F. Kawakami Dep. at 61. These are precisely the
symptoms for which Ms. Kovacs, with her positive skin test and negative
chest x-ray, twice sought help from the emergency room in the recent
past.[^22]

It is generally not possible to make precise predictions about any
individual\'s future need for medical care. Even for an individual with
a history of respiratory ailments, it is impossible to predict whether
she will develop another illness in a day, or six months or a year. What
is certain, however, is how very necessary access to health care
services is when a person does becomes ill. And here, where Ms. Kovacs
continues to be confused about the proper course of future tests and
treatment for her ([see]{.underline} [supra]{.underline} at 8-11), it is
likely that she will seek advice from a pulmonary specialist even if
active tuberculosis does not develop especially because the symptoms of
tuberculosis can mirror those of less serious respiratory ailments.

Ms. Kovacs has stated a specific desire to return to Dr. Kawakami if she
has further lung problems. Yet, outside of statements made in the course
of this litigation, Dr. Kawakami\'s last communications to Ms. Kovacs
indicate that she could not be treated there unless she came with a
family member who could

talk. Under this set of facts, Ms. Kovacs\' asserted future injury is
\"\'real and immediate.\'\" [Whitmore v. Arkansas]{.underline}, 495 U.S.
149, 159 (1990).

The facts here bear no resemblance to those in cases relied upon by
defendant where courts have found no standing. In [Lujan v. Defenders of
Wildlife]{.underline}, 112 S.Ct. 2130 (1992), plaintiffs\' claim of
injury was extremely remote. In [Lujan]{.underline}, members of
environmental groups challenged the failure of federal government
officials to consult with foreign nations regarding overseas projects
affecting endangered species. The group members submitted affidavits
averring an intent to revisit project sites in Egypt and Sri Lanka at
some indefinite future time, at which time they might be denied the
opportunity to observe endangered animals.[^23] In finding the asserted
harm too speculative, the [Lujan]{.underline} Court provided examples of
other facts under which it suggested the Court [would]{.underline} find
imminent injury. Importantly, the distinction appears to turn largely
upon geographic remoteness. The Court suggested that if the group
members had worked with a particular animal or species of animal in the
area of the world where the animal was threatened by a federal decision,
the Court might well have decided the standing issue differently:

> It is clear that the person who observes or works with a particular
> animal threatened by a federal decision is facing perceptible harm,
> since the very subject of his interest will no longer exist. It is
> even plausible \-- though it goes to the outermost limit of
> plausibility \-- to think that a person who observes or works with
> animals of a particular species [in the very area of the world where
> that species is threatened by a federal decision is facing such
> harm]{.underline}, since some animals that might have been the subject
> of his interest will no longer exist, [see]{.underline} [Japan Whaling
> Ass\'n. v. American Cetacean Soc\'y]{.underline}, 478 U.S. 221, 231,
> n.4, 106 S. Ct. 2860, n.6, 92 L. Ed.2d 166 (1986). It goes beyond the
> limit, however, and into pure speculation and fantasy, to say that
> anyone who observes or works with an endangered species, anywhere in
> the world, is appreciably harmed by a single project affecting some
> portion of that species with which he has no more specific connection.

[Lujan]{.underline} at 2139-2140 (emphasis added).

Here, defendant is affiliated with the hospital to which the Gallaudet
Student Health Service refers students. His office is located adjacent
to that hospital. The hospital and office are within a five-mile radius
of the school dormitory where Ms. Kovacs resides. In addition to
geographic proximity, Ms. Kovacs\' threat of injury is far more concrete
and direct than even these hypothetical factual situations where the
[Lujan]{.underline} Court suggested it [would]{.underline} find standing
\-- the immediate injury is to plaintiff, herself.

Earlier Supreme Court cases on which defendant relies are also
inapposite. In [City of Los Angeles v. Lyons]{.underline}, 461 U.S. 95
(1983), the plaintiff had been placed in a chokehold and rendered
unconscious by Los Angeles police officers. His standing \"depended on
whether he was likely to suffer future injury from the use of the
chokeholds by police officers\". [Id.]{.underline} at 105. The Court
found that he \"ha\[d\] made no showing that he is realistically
threatened by a repetition of his experience.\" [Id.]{.underline} at
109. The plaintiff in [Lyons]{.underline}, like plaintiffs in similar
cases preceding it, failed to show a likelihood of recurrence in large
part because the Court would not assume that plaintiff would again break
the law and be subject to arrest by the police. [Lyons]{.underline}, 461
U.S. at 102; [see]{.underline} [id]{.underline}. at 109 (\"Lyons\' lack
of standing does not rest on the termination of the police practice but
on the speculative nature of his claim that he will again experience
injury as the result of that practice even if continued\"). In this
case, Ms. Kovacs is not violating a law; she is seeking to exercise her
statutory right to accessible health care. Moreover, the injury in
[Lyons]{.underline} depended on the unauthorized conduct of all police
officers in Los Angeles. Ms. Kovacs\' threat of future injury depends
upon one defendant: a defendant who has harmed her in the past and who
has evinced his intent to discriminate against her in the future.
[Id.]{.underline} at 102 (past wrongs are evidence bearing on whether
there is a real and immediate threat of repeated injury.) [See
also]{.underline} [Golden v. Zwickler]{.underline}, 394 U.S. 103 (1969)
(allegations of future injury contingent on the prospective future
candidacy of a Congressman who was appointed to the bench deemed \"very
unlikely\"); [O\'Shea v. Littleton]{.underline}, [supra]{.underline},
414 U.S. 488;[^24] [Whitmore v. Arkansas]{.underline}, 495 U.S. 149
(1990);[^25] and [Diamond v. Charles]{.underline}, 476 U.S. 54
(1986).[^26]

Ms. Kovacs is not seeking an advisory opinion. The circumstances here
are \"distinct,\" \"palpable,\" and \"personal\" \-- all terms used in
this Circuit to describe proper grounds for standing. [See]{.underline},
[e.g.]{.underline}, [Foundation On Economic Trends v.
Johnson]{.underline}, 661 F. Supp. 107, 109 (D.D.C. 1986) (plaintiffs
have standing to sue only if they allege that they have suffered
distinct and palpable injury\"); [Olympic Fed. Sav. and Loan Ass\'n v.
Director, Office of Thrift Supervision]{.underline}, 732 F. Supp. 1183,
188 (D.D.C. 1990) (litigant must \"show that he personally has suffered
some actual or threatened injury as a result of the putatively illegal
conduct of the defendant.\")

The attenuated circumstances at issue in a recent D.C. Circuit decision,
[Fair Employment Council of Greater Washington v. BMC Mktg.
Corp.]{.underline}, 28 F.3d 1268 (D.C. Cir. 1994), stand in stark
contrast. In that case, plaintiffs were testers who brought suit
alleging that an employment agency violated Title VII when it denied
referrals to the black testers, while white testers with comparable
credentials received referrals. The court found the likelihood that the
testers themselves would be discriminated against in the future by BMC
simply not credible,[^27] stating,

> Whatever the exact standard for judging the likelihood of future
> injury \[\] the tester plaintiffs here have said nothing to indicate
> that future violation of their rights is even remotely probable.
> [Id.]{.underline} at 1274.

Unlike the testers in BMC, Ms. Kovacs had both past injury and actual
notice of defendant\'s intent to discriminate against [her]{.underline}
again in the future.

Another recent case involving plaintiffs with far more attenuated injury
alleged than that here is [Animal Legal Defense Fund, Inc. v.
Espy]{.underline}, 23 F.3d 496 (D.C. Cir. 1994). In that case, the court
placed particular emphasis upon the fact that the injury alleged was a
matter \"wholly within \[plaintiff\'s\] control.\" [Id.]{.underline} at
500. In contrast, Ms. Kovacs does not have it \"wholly within her
control,\" to avoid contracting active tuberculosis or a respiratory
ailment of sufficient seriousness to require treatment from a pulmonary
specialist.

Defendant also relies heavily on [Aikens v. St. Helena
Hosp.]{.underline}, 843 F. Supp. 1329 (N.D. Cal. 1994). In
[Aikens]{.underline}, the animating concern is geographic proximity. The
court dismissed for lack of standing the complaint of a deaf woman who
brought her dying husband to a hospital emergency room when the couple
was away from their primary residence on vacation. The woman alleged
that the hospital violated the ADA because it failed to provide her with
an interpreter. The court found the allegations in plaintiff\'s
complaint (stating that she owned a mobile home seven miles from the
hospital, and that she stays at the home only for [several
days]{.underline} each year), insufficient to show a real and immediate
threat of future injury at the hands of defendants. However, Aikens was
granted leave to amend her complaint and the court has now reinstated
her ADA claim against the hospital, based on additional allegations that
Ms. Aikens visits the locale where the hospital is located [several
times]{.underline} a year, and that she considers it reasonably possible
that she might seek services at the hospital. [Aikens v. St. Helena
Hosp.]{.underline}, No. C 93-3933 FMS (N.D. Cal. April 4, 1994) (copy
attached as B). Courts have also found standing other disability rights
cases involving circumstances less immediate than those presented in Ms.
Kovacs\' case. [See]{.underline} [supra]{.underline}, n.18.

b\. [It is Likely that Ms. Kovacs will Again be Injured by Dr. Kawakami
Despite His Affidavit Timed to Blunt Litigation]{.underline}

In the notes exchanged at her December 2, 1993 appointment, Ms. Kovacs
was advised that she could not be treated then because of an inability
to communicate and that she needed to come with a family member who
could talk. As we demonstrate below, the refusal to afford treatment
under these circumstances violates the ADA. Dr. Kawakami asserts that
this circumstance could not possibly occur again because he has now
promised to provide a sign language interpreter for any future
appointment for Ms. Kovacs. Accordingly, defendant argues that no injury
is \"imminent,\" or, in essence, that his promise has now made the
controversy moot. It is well established, however, that voluntary
cessation of allegedly illegal conduct in the face of litigation does
not deprive the court of the power to hear the case and issue injunctive
relief. [United States v. W.T. Grant, Co.]{.underline}, 345 U.S. 629
(1953); [see also]{.underline} [County of Los Angeles v.
Davis]{.underline}, 440 U.S. 625, 631 (1979) (a dispute is not moot
unless there is no expectation that the alleged violation will recur,
and (2) \"interim relief or events have completely and irrevocably
eradicated the effects of the alleged violation\"). No interim events
have irrevocably eradicated the effects of the violation, because
defendant is free, at his discretion and at any time, to revoke the
offer he made in his affidavit.

Courts should be especially wary of protestations of reform in the midst
of litigation. [Grant]{.underline}, 345 U.S. at 632; [see
also]{.underline} [United States v. Oregon State Medical
Soc\'y.]{.underline}, 343 U.S. 326, 333 (1952) (\"It is the duty of the
courts to beware of efforts to defeat injunctive relief by protestations
of repentance and reform, especially when abandonment seems timed to
anticipate suit, and there is probability of resumption.\")[^28] [NAACP
v. City of Evergreen, Ala.]{.underline}, 693 F.2d 1367, 1370 (11th Cir.
1982) (reform timed to anticipate or blunt litigation is not an adequate
assurance against repetition). Defendant readily admits that his change
in position results purely from litigation. Indeed, defendant does not
concede that he violated Ms. Kovacs\' rights in any way.
[Cf.]{.underline} [Donovan v. Cunningham]{.underline}, 716 F.2d 1455,
1460-62 (5th Cir. 1983), [cert. denied]{.underline}, 467 U.S. 1251
(1984) (potential for recurrence shown in part by defendant\'s
insistence they did

nothing wrong). Most importantly, defendant provides Ms. Kovacs with
[no]{.underline} [enforceable]{.underline} guarantee that he will not
violate her civil rights in the future.

At the time plaintiff filed her complaint, the discriminatory condition
on her use of Dr. Kawakami\'s services, a condition that was authorized
by defendant himself, was in place. It would be a manifest injustice to
require plaintiff to pursue her rights \-- at great monetary and
personal expense \-- only to have her case dismissed as moot because
defendant appears to concede to her position mid-litigation.[^29]
[Cf.]{.underline} [Grant]{.underline}, 345 U.S. at 632 (determination of
mootness affords defendant dismissal as a matter of right and courts
should be reluctant to give defendant such a powerful weapon against
public law enforcement).

Apart from the self-serving affidavit, defendant presents no evidence
that the discriminatory policies have been changed. There is no
indication that staff personnel have been instructed regarding the
rights of persons with disabilities under the ADA or, in particular, on
how deaf patients should to be treated in the future.[^30] Defendant
offers no policies outlining, for example, office procedures for
procuring interpreter services, nor does he provide considered
modifications to his current practices. Moreover, defendant provides no
evidence of contacts with sign language interpreter services or other
entities able to provide appropriate communication assistance for
dealing with patients with hearing impairments. Instead, Dr. Kawakami
continues to equivocate by arguing that it would be an undue burden to
promulgate a general policy for providing equivalent treatment of deaf
patients.[^31]

> 3\. [In the Alternative, Ms. Kovacs Has Standing Because Her Injury Is
> Capable of Repetition But Evades Review]{.underline}

If the Court concludes that Ms. Kovacs has not demonstrated \"imminent\"
harm because her immediate medical needs were met by another physician
and it is not sufficiently likely that she will seek out Dr. Kawakami\'s
services in the immediate future, it should nevertheless find standing,
as plaintiff\'s injury is one \"capable of repetition but evading
review.\" [Honig v. Doe]{.underline}, 484 U.S. 305, 318-9 (1987),
[quoting]{.underline} [Murphy v. Hunt]{.underline}, 455 U.S. 478, 482

(1981); [Roe v. Wade]{.underline}, 410 U.S. 113, 125 (1973). The Supreme
Court has recognized a plaintiff\'s standing to bring such a claim,
where the action complained of (1) \"was in its duration too short to be
fully litigated prior to its cessation or expiration,\" and there is (2)
\"a reasonable expectation that the same complaining party would be
subjected to the same action again.\" [Weinstein v.
Bradford]{.underline}, 423 U.S. 147, 149 (1975)(per curiam); [Murphy v.
Hunt]{.underline}, 455 U.S. at 482 (1981). [See]{.underline} [Christian
Knights of the Ku Klux Klan Invisible Empire, Inc. v. District of
Columbia]{.underline}, 972 F.2d 365, 370 (D.C. Cir. 1992) (reasonable
expectation is a lower threshold than the immediacy requirement
established in [Lyons]{.underline} and [Lujan]{.underline}).

In this case, Ms. Kovacs was told by the referring physician at
Providence Hospital on November 29 to see Dr. Kawakami [within 5 -7
days]{.underline}. She immediately scheduled an appointment which was
set for December 2, three days later. On the day of her scheduled
appointment, she was discriminated against through Dr. Kawakami\'s
refusal to serve her, in violation of law. The discrimination did not
end there, however. The doctor placed a condition on her receipt of
future services \-- also in violation of law \-- that she must return
with a family member who could talk. Plaintiff was left with no choice
but to return to Dr. Kawakami and subject herself to the discriminatory
conditions he placed on her visit, or to seek alternate care in the four
days remaining. It would have been impossible to litigate the present
controversy in the few intervening days.

In addition, for all of the reasons stated above, Ms. Kovacs has
certainly established a [reasonable expectation]{.underline} that she
will, at some time in the future, require the services of Dr. Kawakami.
[See]{.underline} discussion [supra]{.underline} at 16-19.
[See]{.underline} [Klan]{.underline}, 972 F.2d at 370 (discussing cases
in which no evidence of future plans was shown, but the court implied
likelihood of repetition from nature of activity: Klan will march again;
economy may change again and affect labor strikes). Indeed, plaintiff
has established a substantially greater expectation that she will
require medical services from Dr. Kawakami than Jane Doe established to
have another unwanted pregnancy and again seek an abortion.
[Cf.]{.underline} [Honig v. Doe]{.underline}, 484 U.S. at 318-9 n.6.
Finally, short of an enforceable agreement, plaintiff has no guarantee
that her civil rights will not again be violated by Dr. Kawakami.
[See]{.underline} discussion [supra]{.underline} at 25-28.[^32]

> B. DR. KAWAKAMI\'S REFUSAL TO TREAT SUSAN KOVACS BECAUSE OF HER
> DISABILITY AND THE CONDITION PLACED ON ANY FUTURE TREATMENT VIOLATE
> THE ADA

To succeed as a matter of law under title III of the ADA, the plaintiff
must prove that:

1\) Defendant owns or operates a place of public accommodation;

2\) The aggrieved individual \-- Ms. Kovacs \-- is an individual with a
disability; and

3\) Defendant is discriminating against Ms. Kovacs on the basis of her
disability.

42 U.S.C. § 12182(a) & 42 U.S.C. § 12182(b).

Title III of the ADA prohibits discrimination on the basis of disability
by any entity, including professional health care providers, that falls
within the statute\'s definition of \"public accommodation.\" There is
no dispute that Dr. Kawakami is subject to the nondiscrimination
requirements of title III.[^33] Nor is there any dispute that Ms. Kovacs
is an individual with a disability within the meaning of the ADA.[^34]
Because, as demonstrated below, plaintiff has proven that Dr. Kawakami
discriminated against Ms. Kovacs on the basis of her disability, and
continues to so discriminate by placing discriminatory conditions on her
receipt of future services, the Court should rule in favor of plaintiff
as a matter of law.

The general mandate of title III provides for the \"full and equal
enjoyment\" of the services of a place of public accommodation. Section
302(a) provides:

> No individual shall be discriminated against on the basis of
> disability in the [full and equal enjoyment]{.underline} of the goods,
> services, facilities, privileges, advantages, or accommodations of any
> place of public accommodation by any person who owns, leases (or
> leases to), or operates a place of public accommodation.

42 U.S.C. § 12182(a) (emphasis added). [See also]{.underline} 28 C.F.R.
§ 36.201(a).[^35] To achieve that end, section 302(b) contains several
general and specific prohibitions against discrimination, including,
among other things:

> 1\) the denial of an opportunity to participate in or benefit from a
> place of public accommodation that is equal to that afforded to
> others;
>
> 2\) the denial of an opportunity to participate in or benefit from the
> services offered by a place of public accommodation;

3\) the failure to provide appropriate auxiliary aids or services where
necessary to ensure that no individual is excluded or denied services;

> 4\) the use of unnecessary eligibility criteria that screen out or
> tend to screen out persons with disabilities; and

5\) the failure to make reasonable modifications in policies, practices
or procedures where such modifications are necessary to afford equal
advantages or privileges to persons with disabilities.

42 U.S.C. §§ 12182(b)(1)(A)(i) & (ii); 12182(b)(2)(A)(iii);
12182(b)(2)(A)(i); 12182(b)(2)(A)(ii). To succeed on liability,
plaintiff need prove only that defendant violates one of these five
provisions. The following discussion first considers the general
provisions which provide the framework for the nature of the
discrimination at issue, and then considers in turn each of the specific
prohibitions.

> 1\. [Defendant Violated and Continues to Violate the ADA by Refusing
> Ms. Kovacs and By Treating Her Unequally in Future
> Services]{.underline}
>
> a\. [Refusal of Treatment and Unequal Treatment]{.underline}

Liability in this case does not turn on whether Ms. Kovacs or others
acting on her behalf effectively requested a sign language interpreter
for the December 2, 1993, appointment, as defendant suggests. Rather,
plaintiff should prevail because she has shown that she was denied
treatment on that date and continues to be treated unequally for future
appointments on the basis of her disability.

There is no question that defendant denied Ms. Kovacs \"the opportunity
. . . to participate in or benefit from \[his\] services\" on the day of
her scheduled appointment. 42 U.S.C. § 12182(b)(1)(A)(i); [see
also]{.underline} 28 C.F.R. § 36.202(a). Mrs. Kawakami wrote to Ms.
Kovacs: \"we cannot take you because we cannot communicate with you.\"
Moreover, Dr. Kawakami did not, in fact, honor Ms. Kovacs\' appointment.
Similarly, Dr. Kawakami\'s discriminatory condition on Ms. Kovacs\'
future access to his services \-- that she \"bring her family who can
talk\" \-- is an effective denial of participation for Ms. Kovacs, whose
entire family is deaf. More to the point, by imposing such a condition
on future services, Dr. Kawakami offers for future appointments an
opportunity to benefit from his services that \"is not equal to that
afforded to other individuals,\" in violation of 42 U.S.C. §
12182(b)(1)(A)(ii); [see also]{.underline} 28 C.F.R. § 36.202(b).

Denying an individual the opportunity to receive medical care on account
of that individual\'s disability violates the ADA. [Howe v.
Hull]{.underline}, No. 3:92CV7658, 1994 WL 682951, at \*6 (N.D. Ohio
Nov. 21, 1994) (denial of emergency room services to patient who was
HIV+), [Mayberry v. Von Valtier]{.underline}, 843 F. Supp. 1160, 1166
(E.D. Mich. 1994) (refusal of full and equal enjoyment of medical
treatment on basis of deafness); [Matter of Baby K]{.underline}, 832 F.
Supp. 1022, 1029 (E.D. Va. 1993), [aff\'d on other grounds]{.underline},
16 F.3d 590 (4th Cir. 1994) (\"denial of medical services\" would be
\"discrimination against a vulnerable population \[and\] exactly what
the ADA was enacted to prohibit\").

In his Answer, defendant avers that the text of the notes speak for
themselves. His subtle attempts now to wrestle out of responsibility for
the notes,[^36] or to explain them away, does not alter the fact that
the notes represented defendant\'s [only]{.underline} message to Ms.
Kovacs. [See]{.underline} Def. Opp. at 8-16. The notes, and defendant\'s
failure in fact to treat Ms. Kovacs, provide a sufficient basis upon
which the court may find that Dr. Kawakami discriminated against and
continues to discriminate against Ms. Kovacs.

> b\. [On the Basis of Ms. Kovacs\' Disability]{.underline}

In his opposition, defendant attempts to import the standard from
section 504 of the Rehabilitation Act of 1973 that requires a showing of
discrimination \"[solely]{.underline} by reason of . . . disability,\"
(emphasis added), 29 U.S.C. § 794(a), into the ADA. Def. Opp. at 16. It
is section 504 and not the ADA that defendant quotes to the Court in his
papers. However, the plain language of the ADA does not incorporate the
\"solely\" standard but, instead, requires merely a showing of
discrimination \"on the basis of disability.\" 42 U.S.C. § 12182(a) and
(b). The omission of the \"solely\" standard was a deliberate act by
Congress. Even in relation to title II of the ADA,[^37] where the
language is parallel to that in section 504, \"solely\" was
intentionally not included:

> The Committee recognizes that the phrasing of section 202 differs from
> that of section 504 by virtue of the fact that the phrase \"solely by
> reason of his or her handicap\" has been deleted. The deletion of this
> phrase is supported by the experience of the executive agencies
> charged with implementing section 504. The regulations issued by most
> executive agencies use the exact language set out in section 202 in
> lieu of the language included in the section 504 statute.

H.R. Rept. 101-485(II), 101st Cong., 2d Sess., 85 (1990). At least one
federal court has recognized this difference. [Howe v.
Hull]{.underline}, No. 3:92CV7658, 1994 UL 682944, at \*9 (N.D. Ohio May
25, 1994) (same with respect to title III.)[^38]

The appropriate standard, then, is that provided in the statute \--
discrimination \"on the basis of disability,\" 42 U.S.C. § 12182(a) &
(b)(1). There can be no material dispute that defendant\'s denial of his
services was based on Ms. Kovacs\' deafness. Defendant refused to treat
Susan Kovacs on the day of her scheduled appointment because of a
perception about her ability to communicate, a perception based only on
her deafness, and one which was obviously flawed where communication was
proceeding through written notes. Defendant\'s conditioning of Ms.
Kovacs\' future treatment on bringing someone \"who can talk\" is
similarly based on her disability. Again, there is no dispute that these
were the [only]{.underline} reasons offered to Ms. Kovacs for the denial
of services.

Plaintiff vigorously disputes defendant\'s representation that Ms.
Kovacs\' experience with his office was \"fleeting\" and \"brief.\"[^39]
The facts that are undisputed, however, regarding Ms. Kovacs\' visit to
Dr. Kawakami\'s office establish that services were discriminatorily
denied. Regular office procedures for handling new patients were not
followed for Ms. Kovacs. No forms were provided for her to fill out; no
health history or insurance information was requested. Although Ms.
Kovacs\' note indicated she had been referred by Providence Hospital,
she was not asked whether x-rays had been taken there. None of the notes
written to her advised her that she couldn\'t be treated because the
office didn\'t have her test results and x-rays \-- rather she was told
that inability to communicate was the reason for excluding her.
Importantly, for future visits, she was not told to return with her test
results and x-rays; rather she was advised to come with a family member
who could talk.

> 2\. [Defendant Violated and Continues to Violate the ADA by Failing to
> Communicate with Ms. Kovacs During her Appointment, and by Shifting
> His Burden to Provide Auxiliary Aids for Future Appointments onto
> Plaintiff]{.underline}

A second basis for finding liability under the ADA is defendant\'s
failure to meet his affirmative obligation to provide appropriate
auxiliary aids or services. The ADA defines discrimination to include:

> a failure to take such steps as may be [necessary to ensure that no
> individual with a disability is excluded, denied services, segregated
> or otherwise treated differently]{.underline} than other individuals
> because of the absence of auxiliary aids or services, unless the
> entity can demonstrate that taking such steps would fundamentally
> alter the nature of the good, service, facility, privilege, advantage,
> or accommodation being offered or would result in an undue burden\[.\]

42 U.S.C. § 12182(b)(2)(A)(iii) (emphasis added); [see also]{.underline}
28 C.F.R. §§ 36.303(a),(b),(c), and (f) (auxiliary aids must be
\"appropriate,\" meaning that they must provide \"effective
communication\").

On the day of Ms. Kovacs\' appointment, defendant took no steps
whatsoever to ensure that Ms. Kovacs was not excluded or denied
services. Defendant\'s argument that it was necessary for him to exclude
Ms. Kovacs in light of the affirmative obligations placed on entities to
provide auxiliary aids turns the ADA on its head. To the contrary, he
contravened both the letter and the intent of this provision by
[expressly denying her services because of perceived communication
barriers]{.underline}. With respect to future treatment, Dr. Kawakami
shifts his burden to provide auxiliary aids and services and to ensure
effective communication onto Ms. Kovacs.

The ADA clearly places the obligation for the choice of auxiliary aid,
and the responsibility for effective communication, on the public
accommodation. [Id.]{.underline}, [see]{.underline} 28 C.F.R pt, 36,
App. B at 607-9; [see also]{.underline}, Title III Technical Assistance
Manual at 27. In this case, defendant apparently determined that a sign
language interpreter (or a family member with knowledge of sign
language) was required. Defendant explained, \"we cannot take you
because we cannot communicate with you,\" \"we cannot communicate with
you because we do not know sign language\" and \"you have to bring your
family who can talk.\" Yet, no one at defendant\'s office suggested that
an appointment be rescheduled at a time when an interpreter would be
present. Instead, the doctor shifted his burden to provide appropriate
auxiliary aids or services onto Ms. Kovacs by conditioning future
treatment on the attendance of a family member who could speak.
[See]{.underline}, [supra]{.underline}, n.4.

Defendant argues that he was not provided with an opportunity to consult
with Ms. Kovacs in order to determine which auxiliary aid or service to
provide, but he could easily have consulted with her on the day of her
appointment.[^40] From the note exchange it is apparent that Ms. Kovacs
was trying to initiate a consultation with Mrs. Kawakami to explain a
doctor\'s obligations under the ADA. Her note to Mrs. Kawakami says,
\"First of all I have the information you may need for deaf patients.\"
Defendant trivializes the ADA information, but it is important to note
that using written materials like those Ms. Kovacs attempted to present
to defendant is the way that Ms. Kovacs can communicate her needs to
hearing people who do not know sign language. It is undisputed that Mrs.
Kawakami did not look at the information until it was left for her by
Ms. Kovacs upon departing. Moreover, this was Ms. Kovacs\' [third
attempt]{.underline} to provide defendant with information about the ADA
and his obligations under the law. [See]{.underline} [supra]{.underline}
n.4.

Finally, defendant argues that, because he did not know prior to her
appointment that Ms. Kovacs needed an interpreter, he did not have
sufficient time to arrange for interpreter services on that day. The
lack of sufficient advance notice in order to secure an interpreter may
well pose \"significant

difficulty\" and constitute an undue administrative burden. The law is
very clear, however, that a public accommodation\'s obligation does not
end if the entity can demonstrate that providing a particular aid or
service would constitute an undue burden. Rather, the public
accommodation must provide an alternative, if one exists, that will
ensure \"[to the maximum extent possible\" that the individual receives
the entity\'s services]{.underline}. 28 C.F.R. s 36.303 (f)
(Alternatives) (emphasis added). In this case, there was a viable
alternative to the doctor\'s decision to deny Ms. Kovacs his services,
and that was to communicate with her by writing notes. [See]{.underline}
Dep. of Mrs. Kawakami at 58-60 (admitting that communication was
proceeding effectively through written notes).

3.  [Defendant Violated and Continues to Violate the ADA by Placing
    Discriminatory Eligibility Requirements on the Receipt of His
    Services]{.underline}

The ADA also prohibits discrimination against people with disabilities
in the form of \"eligibility criteria that screen out or tend to screen
out\" people with disabilities:

> from fully and equally enjoying any goods, services, facilities,
> privileges, advantages, or accommodations, unless such criteria can be
> shown to be necessary for the provision of the goods, services,
> facilities, privileges, advantages, or accommodations being
> offered\[.\]

42 U.S.C. § 12182(b)(2)(A)(i); [see]{.underline} 28 C.F.R. § 36.301(a).

Defendant conditioned plaintiff\'s treatment on \"communication\" that
was oral, first by presuming that he could not communicate with Ms.
Kovacs and secondly, by requiring her to bring a family member.
Defendant\'s argument that this condition was meant to be a helpful
suggestion[^41] and was not a criterion for future treatment is undercut
by the context of the communication at issue and the text of the note
itself. Mrs. Kawakami, after speaking with Dr. Kawakami, wrote: \"The
doctor said [you have to]{.underline} bring your family who can talk.\"
This requirement was coupled with an earlier note refusing to honor her
appointment, and defendant\'s actual refusal to honor her appointment
(without such a family member).

The commentary to the regulation points out that an eligibility
criterion can be shown to be \"necessary\" only if it is \"based on
actual risks and not on speculation, stereotypes, or generalizations
about individuals with disabilities.\" 28 C.F.R. Pt. 36, App. B at 605
(1994). It is a generalization to assume that all individuals who are
deaf communicate through sign

language in the first place; many deaf individuals do not even know sign
language. More importantly, many deaf individuals are capable of
communicating in a variety of ways. Defendant\'s perception of the
limits of Ms. Kovacs\' communicative abilities were based in speculation
and\\or stereotype and were not borne out in fact, where communication
was in fact proceeding through written notes.[^42]

Requiring plaintiff to bring a family member in order to obtain
treatment is a discriminatory criterion. The commentary to the
regulation explains that 28 C.F.R. § 36.301 prohibits \"policies that
unnecessarily impose requirements of burdens on individuals with
disabilities that are not placed on others.\" 28 C.F.R. pt. 36, App. B
at 605 (1994). Indeed, the example provided in the commentary is
precisely what the defendant did in

this case: \"public accommodations cannot require that an individual
with a disability be accompanied by an attendant.\" [Id.]{.underline}
Defendant\'s requirement that Ms. Kovacs bring a family member as a
condition on her future treatment was presented as the doctor\'s
criterion. Defendant\'s perception that Ms. Kovacs\' family was
necessary for communication is not based on \"actual risks\" but on a
paternalistic stereotype that views individuals with disabilities as
dependents; specifically, as dependents on hearing people.

4.  [Defendant Violated and Continues to Violate the ADA by Failing to
    Make Reasonable and Necessary Modifications to Policies, Practices
    and Procedures]{.underline}

The final, independent basis on which this court should find defendant
in violation of the ADA is the requirement that public accommodations
\"make reasonable modifications in policies, practices and procedures:\"

> when such modifications are necessary to afford such goods, services,
> facilities, privileges, advantages, or accommodations to individuals
> with disabilities, unless the entity can demonstrate that making such
> modifications would fundamentally alter the nature of such goods,
> services, facilities, privileges, advantages, or accommodations; . . .

42 U.S.C. § 12182(b)(2)(A)(ii); [see also]{.underline} 28 C.F.R. §
36.302(a).

It is undisputed that defendant has no policies or procedures for the
treatment of deaf patients. It is also undisputed that defendant has not
instructed his staff about their obligations under the ADA or made any
modifications in office protocol in order to afford his services to deaf
patients. The necessity of modifying current practices to permit deaf
individuals to enjoy the services of the office is evident in
defendant\'s treatment of Ms. Kovacs. Indeed, it is certainly reasonable
to require that defendant modify his practices so as to treat deaf
people as defendant treats all other patients in his routine protocol.
Moreover, it is reasonable for the office to establish procedures for
providing qualified interpreters, where necessary, and using methods of
communication, such as writing notes, as alternatives to verbal
communication.

**IV. CONCLUSION**

For the foregoing reasons, the Court should find that the plaintiff has
standing to assert her claim and that she is entitled to summary
judgment as a matter of law.

The plaintiff seeks injunctive and declaratory relief. The nature of
injunctive relief requested by plaintiff is specifically contemplated by
the statute:

> Where appropriate, injunctive relief shall . . . include requiring the
> provision of an auxiliary aid or service, modification of a policy, or
> provision of alternative methods, to the extent required by this
> title.

42 U.S.C. § 12188(a)(2).

Declaratory relief is especially appropriate in this case because of the
relative youth of the ADA and concomitant uncertainty of the legal
obligations, the unavailability of monetary relief, and the public
interest in vindicating the rights of individuals with disabilities
under this important civil rights law. [See]{.underline} [Bituminous
Coal Operators Ass\'n., Inc. v. Int\'l. Union, United Mine Workers of
Am.]{.underline}, 585 F.2d 586, 596-97 (3rd Cir. 1978). [See
also]{.underline} [DeLong v. Brumbaugh]{.underline}, 703 F. Supp. 399,
at 405 (W.D. Pa. 1989) (on the public importance of vindicating
plaintiff\'s rights under the Rehabilitation Act).

Dated: Washington, D.C.

> February 24, 1995

Respectfully Submitted,

ERIC H. HOLDER, Jr. DEVAL L. PATRICK

United States Attorney Assistant Attorney General

for the District Civil Rights Division

of Columbia

By:

JOHN L. WODATCH,

D.C. Bar #344523

JOAN A. MAGAGNA,

D.C. Bar #910885

SHEILA M. FORAN,

D.C. Bar #000026444

KATE M. NICHOLSON

Massachusetts Bar #123323

Public Access Section

Civil Rights Division

U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 307-0663

[^1]: ^?^ Hereinafter, Plaintiff\'s Rule 108(H) Statement will be
    referred to only by paragraph number.

[^2]: ^?^ There was some confusion in Ms. Kovacs\' deposition regarding
    the dates on which she went to Providence Hospital. The dates are
    immaterial.

[^3]: ^?^ The relay service enables individuals who are deaf and use
    telephone communication devices for the deaf (TDDs) to communicate
    through an operator with an individual who does not have a TDD. The
    relay operator types the hearing individual\'s remarks to the deaf
    individual via the TDD, and voices the deaf individual\'s typed
    remarks to the hearing individual.

[^4]: ^?^ Although there is a dispute over whether Dr. Kawakami\'s
    office in fact received and refused a clear request to provide a
    sign language interpreter for the December 2, 1993 appointment, the
    Court can determine liability based solely on the facts that are
    undisputed. These disputed facts are thus not material to the nature
    of discrimination at issue. It is not disputed that Maria Teresita
    San Juan told Mrs. Kawakami about Susan Kovacs\' call to schedule an
    appointment and that Ms. Kovacs communicated with her through a
    computer. San Juan Dep. at 32-36; Vella Kawakami Dep. at 52-53. It
    is also undisputed that Mrs. Kawakami received a call from \"Gail\"
    at Providence Hospital requesting an interpreter for Susan Kovacs
    (Vella Kawakami Dep. at 52, 89), and that Mrs. Kawakami received a
    call from Susan Shimko of the National Center for Law and Deafness
    regarding Susan Kovacs\' appointment and the doctor\'s
    responsibilities under the ADA (V. Kawakami Dep. at 47-52).

[^5]: ^?^ Vella Kawakami confirmed that the office was aware Susan
    Kovacs had tested positive. Vella Kawakami Dep. at pp. 37-40, 89.

[^6]: ^?^ Mrs. Kawakami stressed this point in her testimony:

    > Q. \[\] When a new patient comes who\'s been referred from
    > Providence, do they bring their X-rays with them?
    >
    > A. By phone, we tell them if it was done somewhere else. If it is
    > from the hospital, we ask them to go get it.
    >
    > Q. [So the person making the new appointment for a new patient
    > would tell the new patient, \"Please bring your X-rays with
    > you?\"]{.underline}
    >
    > A. [Yes, if they\'re coming for pulmonary consult]{.underline}.
    >
    > Q. Uh-huh. Would a person coming for an appointment who had tested
    > positive for tuberculosis be considered a pulmonary consult?
    >
    > A. Yes.

    Vella Kawakami Dep. at 25.

[^7]: ^?^ While not material to the suit, defendant states that \"it is
    not unusual for this retrieval process to take \"two hours or
    more.\" Defendant\'s Opposition to Plaintiff\'s Motion for Summary
    Judgment at 31 (hereinafter \"Def. Opp.\"). This assertion is not
    supported by the record. In fact, it seriously misrepresents Dr.
    Kawakami\'s statements. At three different points during his
    deposition, Dr. Kawakami confirmed that it took only 5-10 minutes to
    retrieve a patient\'s x-rays from Providence Hospital. F. Kawakami
    Dep. at pp. 79, 85, 88-89. Dr. Kawakami\'s reference to \"two
    hours\" was to the amount of time necessary to [take]{.underline} an
    x-ray at Providence. In fact, in response to the follow up question
    \"But if they had a chest X-ray already done at Providence, it would
    only take you five or ten minutes to get it?\", Dr. Kawakami stated:
    \"Uh-huh. That\'s what I told you.\" F. Kawakami Dep. at 89.
    [See]{.underline} [also]{.underline} Vella Kawakami Dep. at 26
    (same).

[^8]: ^?^ Susan Kovacs\' Gallaudet University Health Service form dated
    November 22, 1993 (showing positive PPD reading of 10 mm diameter);
    [See]{.underline} [e.g.,]{.underline} P.T. Dowling, [Return of
    Tuberculosis: Screening and Preventative Therapy]{.underline}, Am.
    Family Physician, vol. 43 (2), Feb. 1991, at 457-467
    (\"\[d\]epending on the characteristics of the local population and
    individual medical risk factors, a reaction (induration) between 5
    and 15 mm (or more) generally represents infection.\").

    Dr. Kawakami\'s testimony further illuminates the implications of
    Ms. Kovacs\' PPD reading:

    > Q. When somebody tests positive for TB, what does that mean?
    >
    > A. That particular person has exposed to tuberculosis bacteria.
    > That\'s what that mean.
    >
    > Q. So they\'ve just been exposed?
    >
    > A. Uh-huh.
    >
    > Q. And if they were to have a 10 millimeter or above result, that
    > would be \--

    A. It depends on the situation.

    Q. \-- a strong likelihood that somebody with that is TB-positive?

    > A. [It\'s strong with 10 millimeter, yes.]{.underline}

    F. Kawakami Dep. at 54 (emphasis added).

[^9]: ^?^ P.T. Dowling, [Return of Tuberculosis: Screening and
    Preventative Therapy]{.underline}, Am. Family Physician, vol. 43
    (2), Feb. 1991, at 457-467.

[^10]: ^?^ Q. Have you seen Dr. Hines?

    > A. I went to the doctor recently last week or two weeks ago
    > because I thought I was supposed to have an x-ray every year.
    > That\'s what they told me I was supposed to have an annual x-ray
    > because I was not taking whatever that NIH medication is. But they
    > said no, it isn\'t good for you to have an x-ray every year, but I
    > thought I was supposed to have it every year, so not unless I have
    > symptoms. And I didn\'t have any.
    >
    > Kovacs Dep. at 61. [See also]{.underline} Kovacs Dep. at 61-65
    > (containing further discussion regarding Ms. Kovacs\' confusion
    > over the advisability of annual chest x-rays).

    When Dr. Kawakami was asked whether he would recommend annual chest
    x-rays for someone who had tested positive for exposure to TB, he
    answered: \"We don\'t take any annual chest X-ray, even patient with
    positive PPD. We don\'t do it unless you have symptoms - Unless you
    have symptoms of tuberculosis, we don\'t take chest X-ray . . . . Q.
    So you would, therefore, not recommend the annual chest X-rays? A.
    No. Absolutely not.\" F. Kawakami Dep. at 73-74.

[^11]: ^?^ Q. What did she \[Dr. Hines\] tell you about the medication
    as well as you remember; can you remember what she said about the
    medication?

    > A. I remember she said NIH or whatever the medication is, is for
    > TB exposure and I would have to take it every day for six months,
    > I guess two, I don\'t know. I don\'t know what I was supposed to
    > do, but I remember she explained that part of it. What it\'s for,
    > I don\'t remember. But anyway I couldn\'t take it because there
    > was no sense in explaining it to me in depth. It would damage my
    > liver. I don\'t know much about medicine.
    >
    > Kovacs Dep. at 59-60. [Cf]{.underline}. Am Fam Physician 1991 Feb;
    > 43 (2); 457-67 (\"Isoniazid therapy in persons with positive skin
    > tests will decrease the risk of disease by 60 to 80 percent.\")

[^12]: ^?^ Arthur J. Rubel & Linda C. Garro, [Social and Cultural
    Factors in the Successful Control of Tuberculosis]{.underline}, U.S.
    Dept. of Health & Human Servs., Nov.-Dec. 1992, Public Health
    Reports 107 at 626-636. (Attachment A) (Hereinafter HHS Public
    Health Report).

[^13]: ^?^ This is particularly true given the recent resurgence of
    tuberculosis, both worldwide and in the United States.
    [See]{.underline} HHS Public Health Report. [See also]{.underline}
    Malcolm Gladwell, [Tuberculosis Rates Increase Nationwide; Early
    Warnings Went Unheeded; Problem Now Is Far More Costly]{.underline},
    The Washington Post, Mar. 9, 1992, at A1. Dr. Kawakami himself
    testified as to the resurgence of tuberculosis in Washington D.C.,
    in particular. F. Kawakami Dep. at 52-3.

[^14]: ^?^ Plaintiff\'s Rule 108(H) Statement at paragraph 8; affidavit
    of Ilnez Hines.

[^15]: ^?^ [Id.]{.underline}

[^16]: ^?^ [See]{.underline} [also]{.underline} [id.]{.underline} at ¶
    15.

[^17]: ^?^ For private suits, title III of the ADA adopts the \"remedies
    and procedures\" set forth in title II of the 1964 Civil Rights Act,
    42 U.S.C. § 2000a-3(a). Title II provides: \"\[w\]henever any person
    has engaged or there are reasonable grounds to believe that any
    person is about to engage in any act or practice prohibited by
    section 2000a-2 of this title, a civil action for preventive relief,
    including an application for a\[n\] . . . injunction . . . may be
    instituted by the person aggrieved\[.\]\" 42 U.S.C. § 2000a-3(a).

[^18]: ^?^ In [Trafficante]{.underline}, the court noted that there were
    fewer than 24 attorneys dedicated to Fair Housing Act enforcement.
    The Department of Justice currently has 26 attorneys responsible for
    ADA enforcement.

[^19]: ^?^ In other cases involving disability discrimination under the
    Rehabilitation Act of 1973, courts have found standing where such
    private attorneys general suffered injury less imminent than that
    facing Ms. Kovacs. For example, in [DeLong v.
    Brumbaugh]{.underline}, 703 F. Supp. 399 (W.D.Pa. 1989), the court
    found, despite the unavailability of damages, that there was
    sufficient reality and immediacy to warrant the issuance of relief
    declaring a violation of section 504 of the Rehabilitation Act where
    a deaf individual was excluded from a jury. The fact that plaintiff
    could be called to jury service at any time was deemed sufficient.
    The court found that declaratory relief would serve the public
    interest and act as a vindication of the plaintiff\'s rights and of
    the extent of the rights of handicapped persons under section 504.
    [See]{.underline} [Greater Los Angeles Council on Deafness v.
    Zolin]{.underline}, 812 F.2d 1103, 1113 (9th Cir. 1987) (rejecting
    district court\'s finding that request for declaratory relief was
    moot due to absence of current federal funding in Rehabilitation Act
    case, where \"\[s\]uch relief might be appropriate as a vindication
    of plaintiff\'s position and as a public statement of the extent of
    handicapped persons\' rights under section 504\").

[^20]: ^?^ [Allen]{.underline} referred only to the allegations in the
    complaint, but at the summary judgment stage, the court must
    consider the full record. [See]{.underline} [Lujan]{.underline}, 112
    S.Ct. at 2136.

[^21]: ^?^ Def.\'s Mot. for Summ. J. at 16.

    Defendant\'s suggestion that Ms. Kovacs\' test results were a
    \"false positive,\" Def. Opp. at 19, is disingenuous. Ms. Kovacs\'
    skin test for exposure to tuberculosis was positive. The fact that
    Ms. Kovacs\' chest x-ray was negative shows only that active
    tuberculosis has not yet developed, although it could at anytime
    throughout Ms. Kovacs\' life. [See]{.underline} F. Kawakami Dep. at
    55.

[^22]: ^?^ [See]{.underline} Kovacs Dep. at 17-19 (discussing breathing
    difficulties and coughing problems, and visits to student health
    service for shortness of breath and cough); [see also]{.underline}
    discussion at page 4, [supra]{.underline}.

    These and other symptoms of active tuberculosis \-- cough, fever,
    weight loss, fatigue \-- may or may not turn out to be related to
    the onset of the disease, which is why it is important to seek the
    advice of a specialist. This is particularly true given the
    inadvisability of obtaining annual chest x-rays to ascertain onset
    of active tuberculosis. F. Kawakami Dep. at 73-74.

    It is quite probable that Ms. Kovacs will need to visit a pulmonary
    specialist in order to ascertain when the above-described symptoms
    signal active tuberculosis and when they are unrelated. The
    probability that Ms. Kovacs will need a pulmonary specialist\'s
    advice or treatment is increased due to her living situation (a
    dormitory at Gallaudet University that houses many other students.)
    [See]{.underline}, [e.g.,]{.underline} F. Kawakami Dep. at 62 (\"Q.
    Would the risk of \[TB\] infection increase in close living
    quarters? A. Absolutely. Q. Like a college dormitory? A. I think
    so.\")

[^23]: ^?^ The Court found the group members had failed to establish
    standing based on their failure to demonstrate not merely injury but
    also redressability which is not at issue in this case.

[^24]: ^?^ In [O\'Shea]{.underline}, the Court found no case or
    controversy where residents of Illinois town sought injunctive
    relief against a magistrate and circuit court judge whom the
    plaintiffs alleged were engaged in illegal practices in criminal
    cases.

[^25]: ^?^ The injury asserted in [Whitmore]{.underline} depended on the
    possibility that a death row inmate might have his conviction and
    death sentence overturned through federal habeas relief, that he
    would be retried, and again sentenced to death, and that the Supreme
    Court of Arkansas might set aside the sentence because of an updated
    data base for comparing capital crimes. [Whitmore]{.underline} at
    157.

[^26]: ^?^ In [Diamond]{.underline}, the Court rejected a physician\'s
    attempt to defend a state law restricting abortions, because his
    complaint that fewer abortions would lead to more paying patients
    was \"\'unadorned speculation\'\" insufficient to invoke the federal
    jurisdictional power. [Id.]{.underline} at 66; [see]{.underline}
    [id]{.underline}. at 67 (\"\[A\]bstract concern does not substitute
    for the concrete injury required by Article III.\" (citation
    omitted)).

[^27]: ^?^ The [BMC]{.underline} plaintiffs only alleged future injury
    springing from the emotional consequences of BMC\'s past conduct.
    The only reference to other future injury was injury to third
    parties. \"The reference to third parties, of course, does not help
    the tester plaintiffs establish standing; to satisfy the
    requirements of Article III, they must allege that they themselves
    are likely to suffer future injury.\" [Id.]{.underline} at 1273.
    Plaintiff here is seeking to vindicate her own civil rights, not
    those of third parties.

[^28]: ^?^ In [Oregon Medical Soc\'y]{.underline}, the Court found no
    such probability of resumption because the conduct at issue had
    discontinued seven years previously, and there was no threat or
    likelihood of its recurring. The Court found \"not the slightest
    reason to doubt the genuineness, good faith or permanence of the
    changed attitudes and strategy\" of defendants, which \"did not
    consist merely of pretensions or promises but was an overt and
    visible reversal of policy, carried out by extensive operations
    which have every appearance of being permanent . . . .\"

[^29]: ^?^ Indeed, given the unavailability of damages for private
    rights of action under title III, the provision of attorneys fees is
    of critical importance to the effective prosecution of the law.
    [See]{.underline} 42 U.S.C. § 12205.

[^30]: ^?^ It is not disputed that defendant has not instructed his
    staff regarding non-discriminatory treatment of individuals with
    disabilities, and that he has no policies for such treatment.
    [See]{.underline} F. Kawakami Dep. at 46.

[^31]: ^?^ It is questionable whether defendant could establish that
    providing auxiliary aids and services for patients with hearing
    impairments is an undue burden. These costs can be treated like
    other overhead expenses that are spread out over all patients. Title
    III Technical Assistance Manual § III-4.3600. Furthermore, a tax
    credit is available for providing such assistance. 26 U.S.C. § 44
    (1988 & Supp. IV January 3, 1989 - January 4, 1993).

[^32]: ^?^ In [Renne v. Geary]{.underline}, 501 U.S. 312, 320 (1991),
    the Court suggested that the capable of repetition doctrine would
    not revive a dispute that had become moot before the action was
    commenced. The Court relied on the principle established in
    [Lyons]{.underline}, [supra]{.underline}, that past exposure to
    discrimination is not sufficient to create a live controversy where
    there are no present adverse effects. In this case, Ms. Kovacs has
    demonstrated present adverse effects \-- because of both Dr.
    Kawakami\'s discriminatory policy and Ms. Kovacs\' likely future
    medical needs.

[^33]: ^?^ The \"professional office of a health care provider\" is
    specifically named in the definition of public accommodations. 42
    U.S.C. § 12181(7)(F).

[^34]: ^?^ The ADA defines a \"disability\" as \"a physical or mental
    impairment that substantially limits one or more . . . major life
    activit\[y\] . . . \" 42 U.S.C. § 12102(2)(A). \"Major life
    activities\" include hearing. 28 C.F.R. § 36.104.

[^35]: ^?^ Because the Department is the rule-making agency for title
    III, both its regulation and its interpretation of the regulation
    are entitled to deference. [See]{.underline} [Chevron, U.S.A., Inc.
    v. Natural Resources Defense Council, Inc.]{.underline}, 467 U.S.
    837, 844 (1984) (where Congress expressly delegates authority to an
    agency to issue legislative regulations, the regulations \"are given
    controlling weight unless they are arbitrary, capricious, or
    manifestly contrary to the statute.\") [See also]{.underline}
    [Petersen v. University of Wis. Bd. of Regents]{.underline}, 818 F.
    Supp. 1276, 1279 (W.D. Wis. 1993) (applying [Chevron]{.underline} to
    give controlling weight to Department of Justice interpretations of
    title II of the ADA). This Court recently recognized that the
    Department is entitled to deference in interpreting its title III
    regulation. [Fiedler v. American Multi-Cinema, Inc.]{.underline},
    1994 WL 728460 at \*4 n.4 (stating that the Department, as author of
    the regulation, is the principle arbiter of its meaning, and
    according Department interpretations substantial deference) (citing
    [Thomas Jefferson Univ. v. Shalala]{.underline}, 114 S. Ct. 2381,
    2386 (1994)). In [Thomas Jefferson University]{.underline}, the
    Supreme Court reiterated the principle that agencies are afforded
    substantial deference in interpreting their own regulations,
    [id.]{.underline} at 2386 (citing [Martin v. Occupational Safety and
    Health Review Comm\'n]{.underline}, 499 U.S. 144, 150-51 (1991);
    [Lyng v. Payne]{.underline}, 476 U.S. 926, 939 (1986); [Udall v.
    Tallman]{.underline}, 380 U.S. 1, 16 (1965)), and stated that \"the
    agency\'s interpretation must be given \`controlling weight unless
    it is plainly erroneous or inconsistent with the regulation.\'\"
    [Id.]{.underline} (quoting [Bowles v. Seminole Rock & Sand
    Co.]{.underline}, 325 U.S. 410, 414 (1945)). [See also]{.underline}
    [Stinson v. United States]{.underline}, 113 S. Ct. 1913, 1919
    (1993).

[^36]: ^?^ Defendant cannot disavow the discriminatory conduct of his
    employees. As in other civil rights contexts, the Court should find
    that the duty not to discriminate is nondelegable. [See]{.underline}
    [Phiffer v. Proud Parrot Motor Hotel, Inc.]{.underline}, 648 F.2d
    548, 552 (9th Cir. 1980); [Walker v. Crigler]{.underline}, 976 F.2d
    900, 903 n.3 (4th Cir. 1992); [Asbury v. Brougham]{.underline}, 866
    F.2d 1276, 1280 n.4 (10th Cir. 1989); [Marr v. Rife]{.underline},
    503 F.2d 735, 741 (6th Cir. 1974). [See also]{.underline} [Glanz v.
    Vernick]{.underline}, 756 F. Supp. 632, 636 (D.C. Ma. 1991)
    (applying respondeat superior doctrine to Section 504).

[^37]: ^?^ Title II covers state and local governments.

[^38]: ^?^ Defendant correctly represents that the court in [Mayberry v.
    Von Valtier]{.underline}, 843 F. Supp. at 1166, used the \"solely\"
    standard. In that respect the opinion is wrong. The court in
    [Mayberry]{.underline} did not specifically address the issue, but
    simply lifted it from case law under section 504. To that degree, it
    should not be considered authoritative. This court should look to
    the plain language of the statute and the legislative history of the
    ADA.

[^39]: ^?^ Plaintiff offers to prove that prior to her appointment, Ms.
    Kovacs and others acting on her behalf made extensive efforts to
    contact Dr. Kawakami\'s office: Ms. Kovacs called through the relay
    service to schedule an appointment; she contacted Providence
    Hospital which, in turn, contacted defendant\'s office to schedule
    an interpreter; she even had to go to the law center in order to try
    to get an interpreter for her appointment; and Susan Shimko from the
    National Center for Law and Deafness contacted Dr. Kawakami\'s
    office on her behalf. Defendant imputes obstructionist motives to
    Ms. Shimko regarding the fact that she did not have personal medical
    information about Ms. Kovacs when she was calling only in an attempt
    to secure an interpreter for Ms. Kovacs.

[^40]: ^?^ The Department\'s regulation and commentary strongly
    encourage public accommodations to consult with individuals with
    disabilities about their needs for the obvious reason the individual
    is in the best position to assess what is necessary. Contrary to
    defendant\'s interpretation, consultation is not an entitlement of
    public accommodations. In any event, Ms. Kovacs attempted to consult
    with the doctor\'s office.

[^41]: ^?^ Defendant argues that the requirement that Ms. Kovacs bring a
    family member to subsequent appointments was intended to be helpful.
    Proof of intent is not necessary to establish a violation of the
    ADA, as it was not under § 504 of the Rehabilitation Act of 1973.
    [See]{.underline} [Alexander v. Choate]{.underline}, 469 U.S. 287,
    297 (1985) where the Court noted that many covered acts \"would ring
    hollow if the resulting legislation could not rectify the harms
    resulting from action that discriminated by effect as well as by
    design.\"

[^42]: ^?^ Defendant also argues that Dr. Kawakami\'s refusal to treat
    Ms. Kovacs was \"necessary,\" citing 28 C.F.R. § 36.301(a).
    [See]{.underline} Def. Opp. at 6-8, & 27, in his challenge to the
    ADA\'s general prohibitions ([see]{.underline} discussion at part A,
    [supra]{.underline}). But the \"necessity defense\" actually relates
    to the imposition of discriminatory eligibility criteria, 42 U.S.C.
    § 12182(b)(2)(A)(i). Defendant\'s attempt to import the \"necessity
    defense\" to apply against the ADA\'s general prohibitions regarding
    participation and unequal treatment, 42 U.S.C. §§ 12182(b)(1)(A)(i)
    & (ii) is error. Specific prohibitions, including their limitations,
    control over the general only in instances of apparent conflict.
    [See]{.underline} S.Rep. No. 116, 101st Cong., 1st Sess., at 61
    (1989) (\"The Committee wishes to emphasize that the specific
    provisions contained in title III. . . control over the more general
    provisions. . . [to the extent there is any apparent
    conflict]{.underline}\"); [see also]{.underline} H.Rep. No. 485(II),
    101st Cong., 2d Sess, at 103, 104). Here, there is no such conflict.