SCOTUS: Emotional Injury Damages Not Recoverable In Patient’s Private Rehab Act and ACA Disability Discrimination Lawsuit But Other Significant Liability Risks Remain

Today’s Supreme Court ruling that emotional distress damages are not recoverable in a private action to enforce the disability discrimination and accommodation requirements of either the Rehabilitation Act of 1973 (“Rehab Act”) or the Patient Protection and Affordable Care Act (“ACA”) prevents health care and other businesses subject to these requirements against the risk of large emotional injury awards in private actions for discrimination based on these laws. However, health care providers and other organizations subject to these requirements should use care to maintain compliance to avoid large actual damage awards to plaintiffs bringing private lawsuits, program exclusion, penalties or other governmental sanctions or both.

Cummings Supreme Court Ruling

The May 1, 2022 United States Supreme Court ruling in Cummings v. Premier Rehab Keller authored by Supreme Court Justice John Roberts resulted from a suit that sought emotional distress damages brought by filed by a deaf and legally blind woman, Jane Cummings against Premier Rehab Keller after it denied her request that it provide an American Sign Language interpreter at her physical therapy sessions.  Premier Rehab told Cummings the therapist could communicate with her through other means,  Claiming Premier Rehab’s failure to provide an ASL interpreter constituted discrimination on the basis of disability in violation of the Rehab Act and Section 1557 of the ACA, Cummings sued Premier Rehab seeking various damages and other relief, including emotional distress damages.

The Supreme Court took notice that Premier Rehab was subject to these laws because its receipt of Medicare and Medicaid payments qualified as federal financial assistance triggering their applicability.

The Supreme Court affirmed the previous District Court and Fifth Circuit Court of Appeals’ rulings that emotional distress damages are not recoverable in a private action to enforce either the Rehab Act or the ACA.

The Supreme Court Majority based its decision on its finding that the Rehab Act and Act both are spending statutes that condition their offer of federal funding on a promise by the recipient not to discriminate creating what amounts essentially to a contract between the Government and the recipient of funds.  Following previously established Supreme Court precedent for “private spending clause actions,” the Court ruled the emotional distress or other remedy is not available unless “the funding recipient is on notice that by accepting federal funding, it exposes itself to liability of that nature.”

To decide whether emotional distress damages are available under the Spending Clause statutes in this case, the Court therefore asked if a prospective funding recipient deciding whether to accept
federal funds would have had “clear notice” regarding that liability. Because the two statutes are silent on the availability of emotional injury damages, the Supreme Court followed prior precedent by looking to whether the emotional damages sought by Cummings were the type of damages traditionally available in suits for breach of contract so as to put Premier Rehab and other defendants on notice of their exposure to such damages from actions under the Rehab Act or ACA.  While acknowledging some exceptional circumstances where punitive damages may be recovered where “the conduct constituting the breach is also a tort for which punitive damages are recoverable,” the Court found such damages “are generally not available for breach of contract.” Concluding that the recognized exception to the general rule was insufficient to give funding recipients the requisite notice that they could face such damages. the Supreme Court ruled that funding recipients under the Rehab Act and the ACA “have not, merely by accepting funds, implicitly consented to liability for punitive damages.” 

To read the full Majority opinion and related consenting and dissenting opinions, see here. 

Liability Risks Remain Substantial Despite Cummings Ruling

While the Supreme Court’s ruling means private litigants cannot recover emotional injury damages in discrimination actions brought to enforce the Rehabilitation Act or the ACA, health industry and other organizations remain subject to other substantial liability risks for improper discrimination in violation of those laws.  Beyond recoveries for actual damages, attorneys’ fees and costs recoverable by private litigants, covered organizations also can face substantial civil monetary penalties, program disqualification, in some instances even False Claims Act liability for billing in violation of program conditions of participation and other risks.  As federal agencies continue to make enforcement of these sanctions a priority, organization covered by either of these laws should use care to maintain appropriate compliance and risk management to ensure their ability to defend against any potential charges.  

For instance, HHS recently reaffirmed its continued commitment and prioritization of protecting disabled individuals against disability discrimination by its publication of its February 4, 2022 FAQs for Healthcare Providers during the COVID-19 Public Health Emergency: Federal Civil Rights Protections for Individuals with Disabilities under Section 504 and Section 1557. Published to remind health care providers of their obligations under law and provide examples of applicability, HHS clarifies in that guidance that federal civil rights laws apply to health care providers, including those administering COVID-19 testing, medical supplies, and medication. These rules also apply to entities providing hospitalization, long-term care, intensive treatments, and critical care, such as oxygen therapy and mechanical ventilators. HHS also confirm that federal civil rights laws apply to state Crisis Standard of Care plans, procedures, and related standards for triaging scarce resources that hospitals are required to follow. HHS Issues New Guidance for Health Care Providers on Civil Rights Protections for People with Disabilities. See also New Guidance to Boost Accessibility and Equity in COVID-19 Vaccine Programs (December 22, 2021); HHS Takes Action to Prevent Discrimination and Strengthen Civil Rights (November 18, 2021); HHS and DOJ Issue Guidance on “Long COVID” and Disability Rights Under the ADA, Section 504, and Section 1557 (July 26, 2021); OCR Provides Technical Assistance to the State of Arizona to Ensure Crisis Standards of Care Protect Against Age and Disability Discrimination (May 25, 2021); HHS Announces Prohibition on Sex Discrimination Includes Discrimination on the Basis of Sexual Orientation and Gender Identity (May 10, 2021); New Legal Guidance and Resources to Ensure — and Expand — Access to COVID-19 Vaccines for People with Disabilities and Older Adults (April 13, 2021).

HHS’ guidance announcements all include a warning like the one from OCR Director Lisa J. Pino in the February 4, 2022 announcment that “OCR will continue our robust enforcement of federal civil rights laws that protect people with disabilities from discrimination, including when Crisis Standards of Care are in effect.”

The current and historical enforcement record of HHS demonstrates the teeth behind this commitment. OCR has a long and continuing history of extracting substantial settlements or civil monetary penalties from health care or other organizations receiving Medicare, Medicaid or other federal funds administered by HSS for engaging in conduct OCR finds inconsistent with the ACA or Rehabilitation Act discrimination requirements. See, e.g., Settlement Agreement Reached with Rhode Island Department of Children, Youth and Families to Address Discrimination Against Parents with Disabilities (March 30, 2022); Massachusetts Healthcare Provider Resolves Allegations of Discriminatory Practices Regarding Patients Needing Opioid Use Disorder Treatment (December 22, 2021); HHS Office for Civil Rights and U.S. Attorney’s Office for the District of Massachusetts Settle Disability Discrimination Case with Baystate Medical Center (November 17, 2021); HHS Office for Civil Rights and U.S. Attorney’s Office Settle Disability Discrimination Case with Backus Hospital (October 5, 2021); Rhode Island, Massachusetts Healthcare Provider Resolves Allegations of Discriminatory Practices Regarding Patients Needing Opioid Use Disorder Treatment (August 9, 2021).

These OCR guidance and enforcement actions and similar activities by other federal agencies send a strong message that OCR and other federal agencies will continue and expand their zealous investigation and enforcement of disability and other violations by health care providers and other public and private organizations covered by the Rehabilitation Act, the ACA or other federal discrimination and civil rights laws. Health care providers and others regulated by these federal discrimination laws should consider auditing the adequacy of existing practices, reaffirming their own and their business partners’ compliance, retraining workforce and taking other appropriate steps to help prevent illegal discrimination within their organization and to position their organization to respond and defend against potential discrimination investigations or charges.

For Additional Information Or Assistance

If you need have questions or need assistance with health, health or other insurance, employee benefit, payroll, investment or other data, systems or other privacy or security related risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.  Longtime scribe for the American Bar Association Joint Committee on Employee Benefits agency meeting with OCR and author of leading publications on HIPAA and other privacy and data security concerns, Ms. Stamer regularly assists clients and provides input to Congress, OCR and other agencies, publishes and speaks extensively on medical and other privacy and cybersecurity, health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns.

Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.

Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. Her insights on HIPAA risk management and compliance frequently appear in medical privacy related publications of a broad range of health care, health plan and other industry publications.  She also is a highly-sought out speaker on privacy and data security who serves on the planning faculty and speaks for the Association of State & Territorial Health Plans (ASTHO), the Los Angeles Health Department, the American Bar Association, the Health Care Compliance Association, a multitude of health industry, health plan, insurance and financial services, education, employer employee benefit and other clients, trade and professional associations and others.  You can get more information about her HIPAA and other experience here.  If you need assistance with these or other compliance concerns, wish to inquire about arranging for compliance audit or training, or need legal representation on other matters, e-mail Ms. Stamer or call (214) 452-8297.  

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