               United States Court of Appeals
                          For the Eighth Circuit
                      ___________________________

                              No. 17-1374
                      ___________________________

               Roger Durand; Linda Durand; Priscilla Durand

                    lllllllllllllllllllllPlaintiffs - Appellants

                                        v.

                           Fairview Health Services

                     lllllllllllllllllllllDefendant - Appellee

                           ------------------------------

                       Minnesota Hospital Association

               lllllllllllllllllllllAmicus on Behalf of Appellee(s)
                                     ____________

                  Appeal from United States District Court
                 for the District of Minnesota - Minneapolis
                                ____________

                          Submitted: May 15, 2018
                          Filed: September 4, 2018
                               ____________

Before SHEPHERD, MELLOY, and GRASZ, Circuit Judges.
                          ____________

MELLOY, Circuit Judge.
       Linda and Roger Durand, both of whom are hearing-impaired, and their
hearing-abled daughter, Priscilla Durand (collectively, “Appellants”), allege Fairview
Ridges Hospital (“Fairview”) failed to provide “meaningful access” to “auxiliary aids
and services,” in the form of American Sign Language (ASL) interpreters and a
teletypewriter (TTY), during the course of their adult son Shaun Durand’s terminal
hospital stay, in violation of Title III of the Americans with Disabilities Act (ADA),
42 U.S.C. § 12101, et seq.; Section 504 of the Rehabilitation Act (RA), 29 U.S.C.
§ 794; and the Minnesota Human Rights Act (MHRA), Minn. Stat. § 363A.01, et seq.
Additionally, Priscilla alleges an injury independent of her parents’ claim and asserts
associational standing under the same statutes. The district court1 granted Fairview’s
motion for summary judgment as to both issues. We affirm.

                                   I. Background

      Linda and Roger are a married couple with six adult children. Although Linda
and Roger are hearing-impaired, none of their children are deaf. The Durand children
communicate with Linda and Roger through a combination of methods, including
ASL, lip reading, finger spelling, speaking, and writing. Linda and Roger assert they
“do not pick up on all the information their children communicate to them.” Linda
and Roger also assert they “do not always indicate when they don’t understanding
something.”

      Shaun is Linda and Roger’s oldest child. When Shaun was seven years old he
was diagnosed with Marfan syndrome, a genetic disorder affecting his heart. Over
the course of the next several years, Shaun underwent multiple heart surgeries.
Appellants assert “Shaun had long believed that he would not live past the age of 30,
and had declined to pursue a heart transplant or a left ventricular assist device.” In


      1
      The Honorable Richard H. Kyle, United States Judge for the District of
Minnesota.

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May 2013, when he was thirty-one years old, Shaun passed away at Fairview Ridges
Hospital.

      Priscilla, Shaun’s sister and Linda and Roger’s daughter, played an active role
in Shaun’s health care and management. In October 2012, Shaun executed an
Authorization to Discuss Protected Health Information, designating Priscilla and
three other siblings as individuals with whom his medical information could be
shared. Neither Roger nor Linda were included in the authorization.

      In November 2012, Priscilla and Shaun met with a Fairview social worker to
discuss a transition to hospice care. Shortly thereafter, Priscilla, Shaun, and
Fairview’s hospice director convened a meeting with the Durand family, including
Linda and Roger. Fairview provided an interpreter for the meeting.

       In December 2012, Shaun and a Fairview doctor executed a Provider Orders
for Life Sustaining Treatment (POLST) wherein Shaun requested doctors not attempt
to intubate or resuscitate.

       In February 2013, Shaun executed a health care directive designating Priscilla
as his sole health care agent. The directive also referred to his POLST and requested
Fairview not attempt resuscitation.

      In April 2013, Shaun was admitted to Fairview with renal failure. Amy Klopp,
an Advanced Practice Nurse, held a palliative “care conference.” Fairview asserts
care conferences allow “everybody who holds a stake in a person’s life to weigh in
and feel comfortable and understand the decisions that have been made.” Linda and
Roger attended the conference. Fairview provided an interpreter for the meeting.




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       On May 7, 2013, Shaun was admitted to the Fairview intensive care unit for
renal failure. He was accompanied by Priscilla and one of his brothers. At the time
Shaun was admitted he was “confused” and had a “decreased level of consciousness.”

      On the morning of May 8, 2013, Priscilla met with Nurse Klopp to discuss key
medical decisions, including the decision to move Shaun to end-of-life comfort care
and remove his respirator. Nurse Klopp and Priscilla also planned an afternoon care
conference with the Durand family, including Linda and Roger. Around noon,
Shaun’s siblings notified Linda and Roger of Shaun’s hospitalization.

       Although Fairview requested an interpreter for the afternoon care conference,
the interpreter did not arrive until after the conference started. Nurse Klopp then
updated Linda and Roger through the interpreter, and Linda and Roger had an
opportunity to ask Nurse Klopp questions through the interpreter. Around 5:00 p.m.,
Shaun’s physician held a meeting, with an interpreter present, for an unspecified
period of time. According to Fairview’s records, an interpreter was dispatched by a
third-party vendor to Fairview at 2:52 p.m., arrived at the hospital at 3:44 p.m., and
departed the hospital at 6:00 p.m.

       During the evening of May 8 and on the morning of May 9, 2013, nurses and
doctors were in and out of Shaun’s room as a part of their hospital rounds.
Interpreters were not present during these visits. At times, Priscilla or a sibling
interpreted or shared updates regarding Shaun’s condition with Linda and Roger.

       On May 9, 2013, Nurse Klopp convened a second care conference. Nurse
Klopp updated the conference attendees, including Linda and Roger through the aid
of an interpreter.

      According to Linda and Roger, at that point they understood the end of Shaun’s
life was near but believed the timeline to be a matter of days. Linda and Roger

                                         -4-
returned home, and Roger proceeded to work his typical overnight shift that night.
Linda and Roger devised a plan where Linda would use Fairview’s TTY device to
contact the voicemail box of Roger’s employer in the event there was a change in
Shaun’s condition. No one had previously attempted to reach Roger at work. Roger
asked his supervisor to frequently check the voicemail box.

        Later in the evening, after learning Shaun would likely pass away in a matter
of hours, Linda requested a TTY machine from the hospital. An administrator
initially denied her request. Approximately one hour later, the administrator provided
Linda with a TTY machine. Linda declined the administrator’s offer of assistance in
setting up the device. Linda was ultimately unable to use the TTY machine. Priscilla
and one of her siblings attempted to call Roger’s work number, but they did not leave
voicemail messages. The police eventually notified Roger, while Roger was at work,
that his son had passed away.

       Linda, Roger, and Priscilla filed suit against Fairview, requesting a series of
declaratory judgments, injunctive relief requiring Fairview to provide “appropriate
auxiliary aids and services” to hearing-impaired individuals, as well as compensatory,
treble, and punitive damages and attorneys’ fees. After extensive discovery, Fairview
filed a motion for summary judgment, and Appellants filed a motion for partial
summary judgment. The district court granted Fairview’s motion. Appellants filed
a timely appeal.

                              II. Standard of Review

       We review de novo the district court’s grant of Fairview’s motion for summary
judgment, “viewing all evidence and reasonable inferences in the light most favorable
to the nonmoving party.” Barstad v. Murray Cty., 420 F.3d 880, 883 (8th Cir. 2005).
“Summary judgment is appropriate only if no genuine dispute exists as to any



                                         -5-
material fact and the movant is entitled to a judgment as a matter of law.” Argenyi
v. Creighton Univ., 703 F.3d 441, 446 (8th Cir. 2013) (citation omitted).

                                   III. Discussion

       “Title III of the ADA proscribes discrimination in places of public
accommodation against persons with disabilities.” Steger v. Franco, Inc., 228 F.3d
889, 892 (8th Cir. 2000); see 42 U.S.C. § 12182(a). Discrimination is defined by the
ADA as “a failure to take such steps as may be necessary to ensure that no individual
with a disability is . . . treated differently than other individuals because of the
absence of auxiliary aids and services.” 42 U.S.C. § 12182(b)(2)(A)(iii). Similarly,
Section 504 of the RA provides, “[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.” 29 U.S.C. § 794; see also
Alexander v. Choate, 469 U.S. 287, 295 (1985) (noting the type of discrimination
Congress sought to remedy with the RA was the type resulting from “thoughtlessness
and indifference—of benign neglect” rather than “invidious animus”). Minnesota law
also provides people with a disability similar protections against discrimination,
through the MHSA. See Minn. Stat. § 363A.11.

       Although there are differences between the ADA and the RA, including the
RA’s aforementioned federal funding requirement, the case law interpreting the two
statutes is generally used interchangeably. Loye v. Cty. of Dakota, 625 F.3d 494, 496
(8th Cir. 2010); see also Gorman v. Bartch, 152 F.3d 907, 912 (8th Cir. 1998) (noting
the substantive similarities between the ADA and RA such that the “cases interpreting
either are applicable and interchangeable” (citation omitted)). Additionally, “[i]n
general, the ADA and MHRA are also construed the same.” Loye, 625 F.3d at 496
n.2 (citing Somers v. City of Minneapolis, 245 F.3d 782, 788 (8th Cir. 2001)).



                                          -6-
Importantly, for present purposes, neither party articulates a difference between the
MHRA and the ADA and RA.

                               1. “Meaningful Access”

       In order to establish a discrimination claim, Linda and Roger must
demonstrate: (1) they were qualifying individuals with disabilities; (2) Fairview was
a “place of public accommodation (for ADA purposes) and received federal funding
(for Rehabilitation Act purposes)”; and (3) Fairview “failed to make reasonable
modifications that would accommodate [their] disability.” Mershon v. St. Louis
Univ., 442 F.3d 1069, 1076–77 (8th Cir. 2006). The parties agree (1) Linda and
Roger are individuals with a qualified disability, and (2) Fairview is a place of public
accommodation receiving federal funding. The remaining question, therefore, is
whether there are facts in dispute as to whether Fairview provided Linda and Roger
with the necessary aids and services, such as access to an interpreter and a TTY
device, during Shaun’s hospitalization.

       Linda and Roger argue Fairview discriminated against them by failing to
provide statutorily required aids and services in the form of sufficient access to
interpreters and a TTY device. As a result, Linda and Roger claim they “did not
understand crucial aspects of Shaun’s prognosis or the decisions that had been made
regarding his care.” We disagree with Linda and Roger’s interpretation of what is
statutorily required under the ADA, RA, and MHRA. Although the hospital could
have improved upon the services provided, the services Fairview did provide allowed
Linda and Roger to gain access to the same information and related services as
similarly situated, hearing-abled individuals.

       Generally, the ADA and RA require “responsible parties to provide ‘necessary’
auxiliary aids and services.” Argenyi, 703 F.3d at 448. Still, while “[b]oth the ADA
and [RA] are intentionally broad in scope, . . . they do not require institutions to

                                          -7-
provide all requested auxiliary aids and services.” Id. (emphasis added). A
reasonable denial of a request for an auxiliary aid or service does not necessarily
create a statutory liability. See id. As such, in order to determine whether the
responsible party or parties meet the “necessary” requirement, we apply the
“meaningful access” standard. See id. at 449; see also Alexander, 469 U.S. at 301
(citing Section 504 of the RA and noting “an otherwise qualified . . . individual must
be provided with meaningful access to the benefit that the grantee offers”).

       The meaningful access standard requires entities to provide hearing-impaired
individuals with “an equal opportunity to gain the same benefit” as their hearing-
abled peers. Argenyi, 703 F.3d at 449; see also id. at 448 (noting the ADA aimed “to
remedy ‘the discriminatory effects of . . . communication barriers’ for individuals
with hearing disabilities” (quoting 42 U.S.C. § 12101(a)(5))); Liese v. Indian River
Cty. Hosp. Dist., 701 F.3d 334, 343 (11th Cir. 2012) (holding the “proper inquiry”
regarding “necessary” auxiliary aids and services was whether the aids “gave that
patient an equal opportunity to benefit from the hospital’s treatment”); Loye, 625
F.3d at 500 (noting the “the legal standard is effective communication that results in
meaningful access”). Accordingly, the meaningful access standard necessitates a
fact-intensive inquiry and is largely context-dependent. Argenyi, 703 F.3d at 449;
Liese, 701 F.3d at 342–43. As such, courts must identify the hearing-abled peer
group, as well as the context of the hospital visit, in order to determine whether the
hearing-impaired individuals were provided an equal opportunity to access the same
benefits.

       As Shaun’s parents, Linda and Roger are naturally considered to be a part of
the group of stakeholders interested in his condition. However, as the district court
noted, Linda and Roger did not seek the hospital’s aids and auxiliary services as
patients or as a patient’s designated decisionmaker. In fact, in the years leading up
to his final hospitalization, Shaun specifically elected not to include Linda or Roger
as parties authorized to receive his medical information. Nor did he designate Linda

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or Roger as his health care agents. Thus, when Linda and Roger visited the hospital
in May 2013, they did so as family visitors: related, interested, non-patient parties
with limited authority to receive certain medical information and no formal
decisionmaking agency.

       Second, it is undisputed that, over the course of Shaun’s final hospitalization,
his condition developed into an urgent, emergency situation. While the November
2012 hospice conference and April 2013 palliative care conference helped prepare
Linda, Roger, Priscilla, and Shaun’s medical team for the ultimate outcome, the
timing and course of events were largely unknown. As such, during Shaun’s final
hospitalization, Priscilla and Shaun’s medical team had to make immediate, time-
sensitive decisions. In these types of situations, we expect Fairview to prioritize
conversations with critical parties who have decisionmaking authority over
conversations with family visitors, regardless of their disability status.

       Finally, family visitors and similarly situated stakeholders are entitled to
effective communication. This includes participation in certain conversations, access
to certain information, and, ultimately, effective communication of that information.
See 28 C.F.R. § 36.303(c) (requiring hospitals to “furnish appropriate auxiliary aids
and services where necessary to ensure effective communication with individuals
with disabilities”). Here, Linda and Roger argue they were not able to fully
comprehend the severity of Shaun’s condition. The evidence, however, shows
Fairview provided Linda and Roger with access to information, through interpreters,
before and during Shaun’s final hospitalization and provided ample opportunities for
Linda and Roger to ask questions that may have clarified their understanding of
Shaun’s condition. On these facts, we cannot conclude Fairview failed to discharge
its duty to provide effective communication. See Loye, 625 F.3d at 500.

     Next, turning to the TTY device, it is not disputed that Fairview provided a
TTY device. There is also no dispute Linda refused the hospital administrator’s

                                         -9-
assistance in setting up the TTY device. These facts alone are sufficient to establish
Fairview provided Linda and Roger with the requested auxiliary aid and offered
assistance, which was declined, in setting up the device. Here, the district court also
discussed a series of complications with Linda’s plan to use the TTY device that were
outside the scope of Fairview’s control. For example, this was the first time Linda,
or anyone else, had attempted to reach Roger at his place of work. And, even though
Priscilla and another sibling called Roger at work, they did not leave a voicemail
message. As the district court noted, “on these facts, the Court discerns no violation
of the law.” We agree.

       Overall, based on the record, the district court determined there was no factual
dispute as to whether Fairview provided a legally sufficient amount of aids and
services during the course of Shaun’s hospitalization. We agree. As such, Fairview
is entitled to summary judgment as a matter of law.

                             2. Associational Standing

       The second issue on appeal is whether Priscilla has associational standing to
bring a claim against Fairview independent of her parents’ claims. Priscilla alleges
she was unable to “fully concentrate on her own needs” because she was required to
interpret for her deaf parents during the course of Shaun’s hospitalization.

       Generally, courts have “widely accepted . . . under both the RA and the ADA
[that] non-disabled individuals have standing to bring claims when they are injured
because of their association with a disabled person.” McCullum v. Orlando Reg’l
Healthcare Sys., Inc., 768 F.3d 1135, 1142 (11th Cir. 2014) (citing Addiction
Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399, 405–09 (3d Cir. 2005)
(discussing standing of a non-disabled party under the ADA and RA)). Specifically,
the ADA states,“It shall be discriminatory to exclude or otherwise deny equal goods,
services, facilities, privileges, advantages, accommodations, or other opportunities

                                         -10-
to an individual or entity because of the known disability of an individual with whom
the individual or entity is known to have a relationship or association.” 42 U.S.C.
§ 12182(b)(1)(E). Although the RA does not have a similar provision, courts have
read part of the statute—“[t]he remedies, procedures, and rights set forth in title VI
of the Civil Rights Act of 1964 . . . shall be available to any person aggrieved by any
act or failure to act”—as establishing associational standing. 29 U.S.C. § 794a(a)(2);
Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 280 (2d Cir. 2009).

       However, there is a circuit split as to the scope of associational standing under
the ADA and RA. Compare Loeffler, 582 F.3d at 277–79 with McCullum v. Orlando
Reg’l Healthcare Sys., Inc., 768 F.3d 1135, 1142 (11th Cir. 2014). In Loeffler, the
Second Circuit determined under the ADA and RA, “non-disabled parties bringing
associational discrimination claims need only prove an independent injury causally
related to the denial of federally required services to the disabled persons with whom
the non-disabled plaintiffs are associated.” 582 F.3d at 279. The majority in Loeffler
concluded that, because a hospital did not provide federally-required services to a
deaf patient, and because his two minor and hearing-abled children were required to
act as on-call interpreters for their father, forcing the kids to miss school and be
“involuntar[il]y expos[ed] to their father’s suffering,” the children had associational
standing. Id. But see id. at 287 (Jacobs, C.J., dissenting) (noting that because
Congress intended the standard under the ADA and RA to require non-disabled
individuals to be excluded or denied services because of their association, and the
non-disabled children had not been excluded from or denied services based on their
association with their deaf father, the children did not have associational standing
under either statute).

      In McCullum, the Eleventh Circuit held “a non-disabled individual has
standing to bring suit under the ADA [and RA] only if she was personally
discriminated against or denied some benefit because of her association with a
disabled person.” 768 F.3d at 1142. The Eleventh Circuit cited Chief Judge Jacobs’

                                         -11-
dissent in Loeffler and shared his concern at the possibility that “non-disabled
individuals may seek relief under the RA and ADA for injuries other than exclusion,
denial of benefits, or discrimination that they themselves suffer.” Id. at 1143–44.
The court noted, “If that contention were correct, it would mean that Congress
granted non-disabled persons more rights under the ADA and RA than it granted to
disabled persons, who can recover only if they are personally excluded, denied
benefits, or discriminated against based on their disability.” Id. Although the ADA
and RA may not intend to grant more rights to non-disabled individuals, the statutes
do grant different rights to disabled and non-disabled individuals.

       Here, given the undisputed facts, Priscilla does not qualify for associational
standing under either Loeffler or McCullum. As discussed above, Linda and Roger
were not denied statutorily required services under the ADA, RA, or MHRA.
Priscilla’s injury, therefore, cannot be “causally related to the denial of federally
required services to the disabled persons with whom the non-disabled plaintiffs are
associated,” as required in Loeffler. 582 F.3d at 279. Additionally, Priscilla does not
claim “she was personally discriminated against or denied some benefit because of
her association with a disabled person,” as required by McCullum. 768 F.3d at 1142.
We conclude Priscilla does not have associational standing. We leave for another day
the broader, more general question of when an injured, non-disabled individual may
establish associational standing. As such, Fairview is entitled to summary judgment
as a matter of law.

                                   III. Conclusion

      For the reasons stated above, we affirm the judgment of the district court.
                      ______________________________




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