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NEW YORK v. MID HUDSON MED. GROUP

February 6, 1995

THE PEOPLE OF THE STATE OF NEW YORK, by DENNIS C. VACCO, Attorney General of the State of New York, Plaintiff, against THE MID HUDSON MEDICAL GROUP, P.C., Defendant.

Harold Baer, Jr., United States District Judge


The opinion of the court was delivered by: HAROLD BAER, JR.

Harold Baer, Jr., United States District Judge:

 G. Oliver Koppell, the Attorney General of the State of New York in 1994, brought this action on behalf of the People under (1) Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.; (2) Section 504 of the Rehabilitation Act of 1973, 29 U.S.C § 794 ("Section 504"); (3) Sections 63(12) and 296 of the New York Executive Law; and, (4) Section 40-c of the New York Civil Rights Law to redress defendant's alleged "practice of unlawful, discriminatory conduct against people with hearing impairments in the provision of medical services" by refusing to provide sign language interpreters at medical examinations. Plaintiff's Memorandum of Law in Opposition to Defendant's Motion to Dismiss ("Pl. Mem.") at 2. Plaintiff seeks to enjoin defendant from such unlawful discrimination, and also seeks compensatory and punitive damages, statutory penalties and attorney's fees. Id. at 6.

 Separately, Mid Hudson moves to compel production of certain documents which plaintiff claims are protected by the attorney work product doctrine. For the reasons discussed below, I deny Mid Hudson's motion to compel.

 I. Factual Background

 Mid Hudson operates a large medical practice at four facilities in New York's Westchester, Putnam and Dutchess counties. Mid Hudson's 19 physicians and staff of 90 treat approximately 50,000 patients a year. Currently, Mid Hudson has seven to ten hearing impaired patients. Plaintiff contends that, in violation of federal and state statutes, defendant refuses to provide interpretive services for these patients. As a result, these patients must resort to note-writing and lip-reading to communicate with their doctors. Plaintiff bases its allegations on the experience of James Boardman, a hearing and vision impaired patient at Mid Hudson. In May 1994, Mr. Boardman asked Mid Hudson to provide an interpreter for his scheduled physical examination. Mid Hudson denied his request. Mr. Boardman later hired his own interpreter and submitted the bill for his services to Mid Hudson for reimbursement. Defendant refused to pay the bill.

 At about the same time, the New York State Attorney General's Office conducted an investigation of Mid Hudson. Two investigators called without disclosing that they were in the employ of the plaintiff and asked Mid Hudson to provide interpreters for medical appointments of hearing impaired relatives. Both requests, made a few weeks apart, were denied.

 In August 1994, Mr. Boardman renewed his request for interpretive services, this time for an appointment scheduled for his daughter. Mr. Boardman's daughter is not hearing impaired but relies on her father's guidance during doctors visits. Defendant again refused the request. As before, Mr. Boardman appeared with an interpreter he had hired. In a later emergency visit for his daughter, Mid Hudson similarly failed to provide interpretive services.

 Plaintiff claims that defendant discriminates against people with hearing disabilities in violation of both the ADA and the Rehabilitation Act by "rigidly adher[ing] to a policy rejecting the provision of sign language interpreters for patients with hearing impairments." Pl. Mem. at 6. Defendant contends that plaintiff is not a "person aggrieved" under the federal statutes and thus lacks standing to sue. Additionally, defendant argues that it is not a program receiving federal funding for purposes of the Rehabilitation Act.

 II. Motion to Dismiss

 A. The Standard for Rule 12(b) Motions

 When considering the sufficiency of a complaint under a Rule 12(b) motion to dismiss for failure to state a claim or for lack of jurisdiction over the subject matter, the court accepts as true all factual allegations in the complaint and draws inferences from these allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Easton v. Sundram, 947 F.2d 1011, 1014-15 (2d Cir. 1991), cert. denied, 118 L. Ed. 2d 548, 112 S. Ct. 1943 (1992).

 
The issue [on a motion to dismiss] is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.

 Scheuer, 416 U.S. at 236. Dismissal is warranted only if, under any set of facts that the plaintiff can prove consistent with the allegations, it is clear that no relief can be granted. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984); Frasier v. General Elec. Co., 930 F.2d 1004, 1007 (2d Cir. 1991).

 B. The State's Standing to Sue in Parens Patriae

 The ancient common-law prerogative to sue in parens patriae

 
is inherent in the supreme power of every State, whether that power is lodged in a royal person, or in the legislature, [and] is a most beneficent function . . . often necessary to be exercised in the interests of humanity, and for the ...

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