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By Arshi Pal, Esq.

In late April 2022, the United States Supreme Court decided Cummings v. Premier Rehab Keller, P.L.L.C., [LINK: ] which involved Jane Cummings, a deaf and legally blind individual who sought physical therapy services from Premier Rehab Keller, a physical therapy provider. Specifically, Jane requested Premier Rehab to provide an American Sign Language interpreter at her physical therapy sessions. Premier Rehab indicated that the physical therapist could communicate with Jane using other means and refused to provide an American Sign Language interpreter for her sessions. Jane sued Premier Rehab, an agency which receives Medicaid and Medicare funding for some of its services. Jane’s lawsuit indicated that Premier Rehab’s refusal to provide an American Sign Language interpreter constituted discrimination on the basis of disability in violation of the Rehabilitation Act of 1973 and the Affordable Care Act.

The Rehabilitation Act of 1973 forbids discrimination on the basis of disability in programs conducted by federal agencies, in programs receiving federal financial assistance, and in federal employment. Although the Affordable Care Act’s primary goal is to make affordable health insurance available to more people, it prohibits making decisions regarding coverage, incentives, or reimbursement in ways that discriminate against individuals because of their age, disability, or expected length of life. The Court noted that neither of these statutes had expressed specific remedies available for violations. The Court noted that monetary damages were available as a remedy for intentional violations but that there was not a clear scope of appropriate relief.

In the 6-to-3 decision, the Court’s majority, led by Chief Justice Roberts, focused the analysis on a contract law analogy, indicating that when agencies agree to accept federal funds they also agree not to discriminate in their practices. Specifically, the Court found that “conditioning an offer of federal funding on a promise by the recipient not to discriminate, in what amounts essentially to a contract between the Government and the recipient of funds.” The Court focused the inquiry on  whether a prospective funding recipient, at the time it “engaged in the process of deciding whether to accept federal dollars, have been aware that it would face such liability?”

The Court found that compensatory (to make one whole) damages and injunctions (to force action or inaction) were available remedies under contract cases. The Court found that generally punitive damages (damages that punish) are not available for a breach of contract. The Court then went on to state that “it is hornbook law that emotional distress is generally not compensable in contract.” The Court ultimately held that emotional distress damages are not recoverable in a private action to enforce either the Rehabilitation Act of 1973 or the Affordable Care Act.

This has been a tremendously disappointing decision for individuals with disabilities. However, the Concurrence Opinion of Justice Kavanaugh brought up a good point that pursuant to the Constitution’s separation of powers, Congress, not the Court, creates new causes of action. He recommended that Congress, not the Court, should extend those implied causes of action and expand available remedies.

Remarkably, the Dissent opinion by Justice Breyer highlighted that “it is difficult to square the Court’s holding with the basic purposes that antidiscrimination laws seek to serve…to vindicate human dignity and not mere economics.” He emphasized that “indeed, victims of intentional discrimination may sometimes suffer profound emotional injury without any attendant pecuniary harms [and] the Court’s decision today will leave those victims with no remedy at all.”

What to Do about Decision if the Victim of Discrimination

It can be very emotional and overwhelming when you or a loved one is a victim of discrimination based on a disability. Document all harm and seek medical care, whether for emotional or physical harm.  You may not know your rights and how to pursue them.  It’s a good idea to talk to an experienced attorney and timing is very important.