A recent decision by the Supreme Court of the United States has narrowed the scope of damages that can be recovered in lawsuits for violation of the Rehabilitation Act of 1973 or the Affordable Care Act. The decision also calls into question whether those damages are available under other Spending Clause statutes with an implied private right of action—namely, Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. In its April 28, 2022, decision in Cummings v. Premier Rehab Keller, PLLC, the Court held emotional distress damages are not recoverable in lawsuits brought pursuant to the implied private right of action under either the Rehabilitation Act or the Patient Protection and Affordable Care Act (“ACA”).[1]

Bottom Line:

“In its April 28, 2022, decision in Cummings v. Premier Rehab Keller, PLLC, the Supreme Court held emotional distress damages are not recoverable in lawsuits brought pursuant to the implied private right of action under either the Rehabilitation Act or the Patient Protection and Affordable Care Act (“ACA”). Cummings stands to have a far-reaching impact and could extend to claims made under Title VI and Title IX.”

In Cummings, a deaf and legally blind individual who relies primarily on American Sign Language (“ASL”) to communicate sought physical therapy services from Premier Rehab Keller and requested an ASL interpreter, which Premier Rehab declined to provide, offering alternative modes of communication such as “written notes, lip reading, or gesturing.”[2] The plaintiff successfully received medical care elsewhere. He brought suit against Premier Rehab under Section 504 of the Rehabilitation Act and the ACA, alleging that the refusal to provide an ASL interpreter amounted to disability discrimination.[3] The district court dismissed the suit, finding “the only compensable injuries that Cummings alleged Premier caused were ‘humiliation, frustration, and emotional distress.’”[4] The district court reasoned that damages for emotional distress were not recoverable in private actions under the Rehabilitation Act or ACA. The Fifth Circuit agreed, and the Supreme Court affirmed.

In reaching its holding, the Supreme Court examined Spending Clause legislation with an implied private right of action under a contract-law analogy (something the Court has done before in cases like this).[5] The Court viewed the case as “a simple question: Would 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?”[6] Where the statute contains no express remedies, the Court held recovery is limited to other types of remedies traditionally available for breach of contract. As the Court observed, “It is hornbook law that ‘emotional distress is generally not compensable in contract.’”[7] On that basis, the Court held emotional distress damages are unavailable under the Rehabilitation Act and ACA.[8]

Certainly, the opinion is helpful to educational institutions and other covered entities facing lawsuits under the Rehabilitation Act. But what does Cummings mean for other Spending Clause statutes that rely on a judicially implied private right of action? While the opinion was limited to claims under the Rehabilitation Act or the Affordable Care Act, the majority’s analysis hinged on two issues: (1) a statute enacted pursuant to Congress’s Spending Clause power, and (2) a judicially implied private right of action for violations of the statute. The majority opinion expressly notes that there are “four statutes prohibiting recipients of federal financial assistance from discriminating based on certain protected grounds[,]” Title VI, Title IX, the Rehabilitation Act, and the ACA[8] Thus, the majority certainly seems to imply this analysis would apply to any of these four statutes.

While the majority does not explicitly say so, Justice Breyer’s dissent certainly does: “the Court’s decision today will affect the remedies available under all four of these statutes [Title VI, Title IX, the Rehabilitation Act, and the ACA], impacting victims of race, sex, disability, and age discrimination alike.” Id. (Breyer, J., dissenting). If Justice Breyer is correct, Cummings stands to have a far-reaching impact and could extend to claims made under Title VI and Title IX. This would be particularly significant in Title IX litigation, where emotional distress damages often make up a significant measure of the compensatory damages sought by plaintiffs. At the very least, this decision gives educational institutions in Title IX litigation a foundation on which to argue emotional distress damages are not available under Title IX.

Although significant, Cummings will apparently not be the last the Court has to say about implied private rights of action for Spending Clause statutes. On May 2, 2022, five days after Cummings was decided, the Court granted certiorari in Health & Hospital Corp. v. Talevski, which involves whether there is a private cause of action under 42 U.S.C. § 1983 to enforce the Federal Nursing Home Reform Act, another Spending Clause statute that establishes standards of care, but does not expressly create a private cause of action. The Court accepting review of another case involving the scope of an implied private right of action for a Spending Clause statute less than a week after its decision in Cummings seems to signal that this is an issue the Court intends to weigh in on, potentially in a significant way. But what the Court will have to say about that remains to be seen.

Don Morgan is an employment and education law attorney with Sturgill, Turner, Barker & Moloney, PLLC. He can be reached at dmorgan@sturgillturner.com or 859.255.8581.

This article is intended to be a summary of state or federal law and does not constitute legal advice.

[1] Cummings v. Premier Rehab Keller, PLLC, 596 U.S. ____ (2022). A copy of the opinion can be found here.

[2] Id.

[3] Premier was covered under both spending clause statutes because it receives reimbursement through Medicare and Medicaid for some of its services.

[4] No. 4:17-CV-649-A, 2019 WL 227411, *4 (N.D. Tex., Jan. 16, 2019).

[5] See, e.g., Barnes v. Gorman, 536 U.S. 181 (2002).

[6] Cummings, at 5, (quoting Arlington Central School Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006)).

[7] Id., at *7, (quoting D. Laycock & R. Hasen, Modern American Remedies 216 (5th ed. 2019)).

[8] Id. at *16.

[9] Id. at *3.