About Martin Luther King & Section 504 of The 1973 Rehabilitation Act - #Michael Ayele (A.k.a) W - #National Council On Disability (NCD)

THE NATIONAL COUNCIL ON DISABILITY (NCD)
DENIED HAVING KNOWLEDGE OF SPECIFIC

CIRCUMSTANCES WHICH HAVE PREVIOUSLY LED
THE FEDERAL GOVERNMENT OF THE UNITED
STATES OF AMERICA (USA) TO TERMINATE
FUNDING AS A DIRECT CONSEQUENCE OF A
PROGRAM THAT VIOLATED SECTION 504 OF THE
1973 REHABILITATION ACT (BY INTENTIONALLY
AND MALICIOUSLY DISCRIMINATING AGAINST
PEOPLE WITH DISABILITIES).
BE WELL. TAKE CARE. KEEP YOURSELVES AT ARMS DISTANCE.
MICHAEL A. AYELE (a.k.a) W

ANTI-RACIST HUMAN RIGHTS ACTIVIST
AUDIO-VISUAL MEDIA ANALYST
ANTI-PROPAGANDA JOURNALIST
National Council on Disability
An independent federal agency making recommendations to the President and Congress
to enhance the quality of life for all Americans with disabilities and their families.
September 22, 2022
Michael Ayele
P.O. Box 20438
Addis Ababa, Ethiopia
Re: FOIA Request NCD-2022- 19
Dear W:
This letter is in response to your Freedom of Information Act (FOIA) request, dated
August 23, 2022, in which you requested:
“What I am requesting for prompt disclosure are records in your possession detailing [1]
your discussions about Section 504 of the 1973 Rehabilitation Act as “the first national
civil rights law to view the exclusion and segregation of people with disabilities as
discrimination;”iv [2] your discussion about the “month long occupation” of the (now
defunct) U.S Department of Health, Education and Welfare (HEW) building in San
Francisco being instrumental for the enactment of Section 504 of the 1973
Rehabilitation Act; v [3] your discussions about Section 504 of the 1973 Rehabilitation
Act as a civil rights law, which “was enacted without fanfare and with little notice;” [4]
your discussions about the Rehabilitation Act of 1973 as a “spending bill that authorized
$1.55 billion in aid to people with disabilities;” [5] your discussions about Section 504 of
the 1973 Rehabilitation Act as a civil rights law, which was “modeled on the language of
Title VI of the Civil Rights Act of 1964;”vi [6] the information provided to employees
of your city/county/state government about the mechanism of filing a complaint pursuant
to Section 504 of the 1973 Rehabilitation Act if/when they witness discrimination in the
service of healthcare (on the basis of disability); [7] the information provided by the
Treasury Inspector General for Tax Administration (TIGTA)/Internal Revenue Service
(IRS) to current/former taxpayers of the U.S.A about the mechanism of filing a complaint
pursuant to Section 504 of the 1973 Rehabilitation Act if/when a current/former taxpayer
has witnessed discrimination in the service of healthcare (on the basis of disability);vii
[8] the name(s), the academic background(s), the professional responsibility(ies) and
annual salary(ies) of the person/people (in your city/county/state government), who are
(in the regular course of a business day) tasked with responding to a complaint of
discrimination filed pursuant to Section 504 of the 1973 Rehabilitation Act; [9] the extent
of your knowledge on whether your hospitals, your nursing homes, your mental health
centers and your human service programs receive financial assistance from (an)
agency(ies)/department(s) of the U.S federal government; [10] the total sum of money
provided to your hospitals, your nursing homes, your mental health centers and your
human service programs by (an) agency(ies)/department(s) of the U.S federal
government; [11] the total number of complaints filed against your hospitals, your
1331 F Street, NW ■ Suite 850 ■ Washington, DC 20004

202-272-2004 Voice ■ 202-272-2022 Fax ■ www.ncd.gov
nursing homes, your mental health centers and your human service programs for
violating Section 504 of the 1973 Rehabilitation Act); [12] the complaints filed against
your hospitals, your nursing homes, your mental health centers and your human service
programs (pursuant to Section 504 of the 1973 Rehabilitation Act); [13] the outcome of
the complaints filed against your hospitals, your nursing homes, your mental health
centers and your human service programs (pursuant to Section 504 of the 1973
Rehabilitation Act); [14] the total sum of money provided to your city/county/state
government by (an) agency(ies)/department(s) of the U.S federal government; [15] the
total number of complaints filed against your city/county/state government for violating
Section 504 of the 1973 Rehabilitation Act; [16] the complaints filed against your
city/county/state government for violating Section 504 of the 1973 Rehabilitation Act;
[17] the outcome of the complaints filed against your city/county/state government for
violating Section 504 of the 1973 Rehabilitation Act; [18] your discussions about the
NCD as a federal agency, which is very much a proponent of terminating federal funds
for failure to comply with Section 504 of the 1973 Rehabilitation Act;viii [19] the extent of
your knowledge on whether federal funds were ever terminated as a direct
consequence of a Section 504 violation; [20] your discussions about the circumstances,
which led to the enactment of the Civil Rights Restoration Act of 1987.”
For tracking purposes, your tracking number is NCD-2022- 19.
All of NCD’s public records are available on our website at NCD.gov. We do not have
any additional records responsive to your request.
If you need further assistance, you may contact Amy Nicholas, NCD’s FOIA Public
Liaison at 202-731-2313 or anicholas@ncd.gov. Please include your tracking number
with any correspondence. If needed, it is your right to seek dispute resolution services
from NCD’s Public Liaison or the Office of Government Information Services (OGIS).
OGIS may be reached at:
Office of Government Information Services (OGIS)

National Archives and Records Administration
8601 Adelphi Road
College Park, MD 20740-6001
OGIS@Nara.gov
202-741-5770
fax 202-741-5769
NCD’s appeal process allows you to appeal withheld information or the adequacy of
NCD’s search by writing within 90 days of your receipt of this letter to:
Anne Sommers McIntosh

Executive Director
1331 F St. NW.
Suite 850
2
Washington DC 20004
Your appeal must be in writing and should contain a brief statement of the reasons why
you believe the requested information should be released. Enclose a copy of your initial
request, request number and a copy of this letter. Both the appeal letter and envelope
should be prominently marked “Freedom of Information Act Appeal.”
After processing, actual fees must be equal to or exceed $25 for the Council to require
payment of fees. See 5 CFR §10000.10k. The fulfillment of your request did not exceed
$25, therefore there is no billable fee for the processing of this request.
Respectfully,
Joan Durocher
Chief FOIA Officer
3
REQUEST FOR RECORDS 08/23/2022
W (AACL) Date.: August 23rd 2022

Michael A. Ayele
P.O.Box 20438
Addis Ababa, Ethiopia
E-mail: waacl13@gmail.com ; waacl1313@gmail.com ; waacl42913@gmail.com
Request for Records
Hello,
This is Michael A. Ayele sending this message though I now go by W. You may call me W. I am
writing this letter to file a request for records with your office.i The bases for this records request
are [1] the National Council on Disability (NCD) February 12th 2003 report on Rehabilitating
Section 504; ii [2] the statements made by the NCD on the occasion of Martin Luther King’s day
this Calendar Year of 2022.iii
I) Records Requested
What I am requesting for prompt disclosure are records in your possession detailing [1] your
discussions about Section 504 of the 1973 Rehabilitation Act as “the first national civil rights
law to view the exclusion and segregation of people with disabilities as discrimination;”iv [2]
your discussion about the “month long occupation” of the (now defunct) U.S Department of
Health, Education and Welfare (HEW) building in San Francisco being instrumental for the
enactment of Section 504 of the 1973 Rehabilitation Act; v [3] your discussions about Section
504 of the 1973 Rehabilitation Act as a civil rights law, which “was enacted without fanfare and
with little notice;” [4] your discussions about the Rehabilitation Act of 1973 as a “spending bill
that authorized $1.55 billion in aid to people with disabilities;” [5] your discussions about
Section 504 of the 1973 Rehabilitation Act as a civil rights law, which was “modeled on the
language of Title VI of the Civil Rights Act of 1964;”vi [6] the information provided to employees
of your city/county/state government about the mechanism of filing a complaint pursuant to
Section 504 of the 1973 Rehabilitation Act if/when they witness discrimination in the service of
healthcare (on the basis of disability); [7] the information provided by the Treasury Inspector
General for Tax Administration (TIGTA)/Internal Revenue Service (IRS) to current/former
taxpayers of the U.S.A about the mechanism of filing a complaint pursuant to Section 504 of the
1973 Rehabilitation Act if/when a current/former taxpayer has witnessed discrimination in the
service of healthcare (on the basis of disability);vii [8] the name(s), the academic background(s),
the professional responsibility(ies) and annual salary(ies) of the person/people (in your
city/county/state government), who are (in the regular course of a business day) tasked with
responding to a complaint of discrimination filed pursuant to Section 504 of the 1973
W (AACL) – MICHAEL A. AYELE 1
Rehabilitation Act; [9] the extent of your knowledge on whether your hospitals, your nursing
homes, your mental health centers and your human service programs receive financial assistance
from (an) agency(ies)/department(s) of the U.S federal government; [10] the total sum of money
provided to your hospitals, your nursing homes, your mental health centers and your human
service programs by (an) agency(ies)/department(s) of the U.S federal government; [11] the total
number of complaints filed against your hospitals, your nursing homes, your mental health
centers and your human service programs for violating Section 504 of the 1973 Rehabilitation
Act); [12] the complaints filed against your hospitals, your nursing homes, your mental health
centers and your human service programs (pursuant to Section 504 of the 1973 Rehabilitation
Act); [13] the outcome of the complaints filed against your hospitals, your nursing homes, your
mental health centers and your human service programs (pursuant to Section 504 of the 1973
Rehabilitation Act); [14] the total sum of money provided to your city/county/state government
by (an) agency(ies)/department(s) of the U.S federal government; [15] the total number of
complaints filed against your city/county/state government for violating Section 504 of the 1973
Rehabilitation Act; [16] the complaints filed against your city/county/state government for
violating Section 504 of the 1973 Rehabilitation Act; [17] the outcome of the complaints filed
against your city/county/state government for violating Section 504 of the 1973 Rehabilitation
Act; [18] your discussions about the NCD as a federal agency, which is very much a proponent
of terminating federal funds for failure to comply with Section 504 of the 1973 Rehabilitation
Act;viii [19] the extent of your knowledge on whether federal funds were ever terminated as a
direct consequence of a Section 504 violation; [20] your discussions about the circumstances,
which led to the enactment of the Civil Rights Restoration Act of 1987. ix
II) Request for a Fee Waiver and Expedited Processing
The requested records do/will demonstrate that [1] the National Council on Disability (NCD) is
a federal agency, which has credited Martin Luther King for the enactment of many civil rights
legislations including the Americans with Disabilities Act (ADA); [2] “of all forms of
discrimination and inequalities, injustice in health is the most shocking and inhumane”
(according to Martin Luther King); [3] Section 504 of the 1973 Rehabilitation Act is “the first
national civil rights law to view the exclusion and segregation of people with disabilities as
discrimination;” [4] Section 504 of the 1973 Rehabilitation Act was enacted after a “month long
occupation” of the (now defunct) U.S Department of Health, Education and Welfare building
located in San Francisco, California; [5] Section 504 of the 1973 Rehabilitation Act is a civil
rights law, which is “modeled on the language of Title VI of the Civil Rights Act of 1964;” [6]
Michael A. Ayele (a.k.a) W is a Black man, who was in Calendar Year 2013 employed for the
Missouri Department of Mental Health (a state government agency); [7] Michael A. Ayele
(a.k.a) W is a Black man, who was in Calendar Year 2013 witness to discrimination in the
service of healthcare, while he was employed for the MODMH; [8] Michael A. Ayele (a.k.a) W
is a Black man, who had in 2013 filed an internal complaint with the MODMH after having
witnessed discrimination in the service of healthcare (on the bases of disability, racial

background and national origin) at the Fulton State Hospital (FSH) now defunct Biggs Forensic
Center (BFC) Social Learning Program (SLP); [9] Michael A. Ayele (a.k.a) W is a Black man,
who was retaliated upon by the MODMH in 2013 for filing an internal complaint after having
witnessed discrimination in the service of healthcare (on the bases of disability, racial
background and national origin) at the Fulton State Hospital (FSH) now defunct BFC (SLP); [10]
Michael A. Ayele (a.k.a) W is a Black man, who ultimately decided to file a charge of
employment discrimination with the Equal Employment Opportunity Commission (EEOC)
against the MODMH toward the end of Calendar Year 2013; [11] the charge of employment
discrimination filed by Michael A. Ayele (a.k.a) W with the EEOC was assigned Case No.: 28E
– 2014 – 00485C; [12] Michael A. Ayele (a.k.a) W is a Black man, who had informed the EEOC
that he was retaliated upon for filing an internal complaint with his former employers after
having witnessed discrimination in the service of healthcare; [13] Michael A. Ayele (a.k.a) W is
a Black man, who has asked for the EEOC and the MODMH to disclose pertinent information
about the medical services offered to Muhammer Suljacer and Aschalew Belachew (who were in
2013 being held as patients/prisoners of the FSH) for the purpose of proving discrimination in
the service of healthcare (on the bases of disability, racial background and national origin);x [14]
Michael A. Ayele (a.k.a) W is a Black man, who has expressed grave concerns about the
excessive use of force, which can be deployed against patients/prisoners of the MODMH (with
an intellectual/developmental disability) as a form of cruel and unusual punishment (that would
be inconsistent with the Eighth Amendment of the U.S Constitution);xi [15] Michael A. Ayele
(a.k.a) W is a Black man, who has previously corresponded with the Joint Commission about the
complaints, which were filed with them against the MODMH; [16] the Joint Commission have
informed Michael A. Ayele (a.k.a) W that 21 (twenty one) complaints had been filed with them
against the MODMH (FSH) between April 24th 2011 and April 23rd 2014 for a wide range of
issues, which include but are not limited to environment of care, provision of care, medication
management, treatment and services etc; [17] the Joint Commission have referenced their April
23rd 2014 correspondence with Michael A. Ayele (a.k.a) W as Incident #71987CHS –
22110QXA.
In my judgment, the facts presented in my request for a fee waiver and expedited processing are
not the sort to bolster public confidence in the activities of the U.S government overall. As a
Black man with a U.S college degree (who was previously employed as a mental health care
worker), I would like to take this opportunity to denounce discrimination in the service of
healthcare on the basis of disability status. I would also like to take this opportunity to denounce
discrimination in the service of healthcare on the bases of gender, racial background, sexual
orientation, religious affiliation and national origin. The core issues presented in this records
request are as follows. 1) Have you had conversations about the circumstances, which led to the
enactment of Section 504 of the 1973 Rehabilitation Act? Have you had conversation about the
“month long occupation” of the (now defunct) U.S Department of Health, Education and
Welfare (HEW) building located in San Francisco, California? If yes, will you disclose those
records? 2) What information is provided to employees of your city/county/state government
about the mechanism of filing a complaint pursuant to Section 504 of the 1973 Rehabilitation

Act if/when they witness discrimination in the service of healthcare (on the basis of disability or
potentially other reasons)? What information is provided by the Treasury Inspector General for
Tax Administration (TIGTA)/Internal Revenue Service (IRS) to current/former U.S taxpayers
about the mechanism of filing a complaint pursuant to Section 504 of the 1973 Rehabilitation
Act if/when the current/former taxpayer has witnessed discrimination in the service of healthcare
(on the basis of disability or other reasons)? 3) Does your city/county/state government keep
records of complaints filed against them for violating Section 504 of the 1973 Rehabilitation
Act? If yes, will you disclose the total number of complaints that were filed? Will you also
disclose the content of the complaint and the outcome of the complaint, which were filed against
your city/county/state government? 4) To the extent of your knowledge, have federal funds ever
been terminated as a direct consequence of Section 504 violation? If yes, will you disclose those
records?
This records request should be expedited because it puts into question the government’s integrity
about the way that people are treated in the U.S.A on account of their gender, their racial
backgrounds, their national origins and their disability status. My request for a fee waiver should
be granted because [1] I have identified operations and activities of the federal government in
concert with U.S city/county/state government as well as non-profit and for-profit organizations;
[2] the issues presented are meaningfully informative about government operations or activities
in order to be ‘likely to contribute’ to and increase public understanding of those operations or
activities. Under penalty of perjury, I hereby declare all the statements I have made to be true
and accurate. Be well. Take care. Keep yourselves at arms distance.
W (AACL)
Michael A. Ayele
Anti-Racist Human Rights Activist
Audio-Visual Media Analyst
Anti-Propaganda Journalist

Work Cited
i
Please be advised that I have previously disseminated a vast number of documents obtained
through records request via Archive.org, Scribd.com, Medium.com and YouTube.com. These
documents have been made available to the public at no financial expense to them. As a member
of the media, I would like to take this opportunity to inform you that the records you disclose to
me could be made available to the general public through the means I have mentioned above or
other ones. On December 10th 2021, I have launched a website on Wordpress.com for the
purpose of making the records previously disclosed to me by the U.S government further
accessible to members of the general public interested in the activities of their elected and non-
elected representatives. You can find out more about the recent publications of the Association
for the Advancement of Civil Liberties (AACL) here.: https://michaelayeleaacl.wordpress.com/
ii
Section 504 of the 1973 Rehabilitation Act is acknowledged as the first national civil rights law
to view the exclusion and segregation of people with disabilities as discrimination and to declare
that the Federal Government would take a central role in reversing and eliminating this
discrimination. Section 504, which prohibits federal agencies and federally funded programs
from discriminating on the basis of disability, was designed to promote and expand opportunities
for persons with a broad range of disabilities and offer broad-based protection from
unwarranted discrimination stemming from prejudice, social stigmas, and negative assumptions
about their ability to fully participate in the mainstream of society.
Although there is some mystery as to how the language of Section 504 became part of what was
clearly intended to be a funding bill, Section 504 would soon become the most important and
embattled provision in the entire Rehabilitation Act. Once the legislation was passed, the pivotal
question became whether Section 504 would be enforced with strong administrative rules. It took
nearly four years with months of demonstrations and intense lobbying efforts before a relatively
tough set of government-wide coordinating regulations was published by the U.S. Department of
Health, Education and Welfare (HEW) on April 28, 1977. Effective government-wide
enforcement efforts were further delayed when, in 1980, President Jimmy Carter issued
Executive Order 12250, which transferred lead agency authority to the Department of Justice
(DOJ). DOJ reissued government-wide enforcement regulations on August 11, 1981, without
changing the original HEW regulations. Because the issuing of the government-wide regulations
was exceedingly slow, many federal agencies consequently delayed issuing their own
regulations, and, in some cases, legal action was required to compel their issuance of Section
504 regulations.
The supposed remedy for segregated public services and programs and the instrument for
enforcing nondiscrimination, the Rehabilitation Act and its contemporaneously enacted
regulations, unfortunately, were virtually dead on arrival. Because of the lack of sufficient
resources, leadership, implementation, and enforcement of Section 504 and the trend of the
courts to narrow the protections and scope of disability civil rights, as well as misportrayals by
the media about the supposed overreaching of these laws, what once was the centerpiece of
independence for persons with disabilities has become an afterthought. (…)
The proponents of Section 504 embraced the federal financial assistance strategy of Title VI of
the 1964 Civil Rights Act. They knew that disability discrimination was so ingrained in the
country's consciousness and so thoroughly cloaked in the mantle of beneficent charity that only a
dramatic approach to enforcement was likely to work. The 1964 Civil Rights Act provided the
model: to condition all federal grant dollars on compliance with the nondiscrimination mandate.
Section 504 simply substituted the words "solely on the basis of handicap" to describe the type of
discrimination barred in place of the words "race, religion, color and national origin" contained
in Title VI.
The reasons that the Civil Rights Act supporters chose to condition federal grant funds were
equally valid for eradicating disability discrimination. The reasons were as follows:
1. Codify the illegality of funding "separate but equal" programs and invalidate the federal
statutes that permitted the funding of such programs;
2. Reassure reluctant federal agencies that they did have the authority to prohibit discrimination
in their assistance programs;
3. Eliminate repeated debates about prohibiting discrimination in every bill that extended
federal assistance;
4. Establish an "effective alternative to litigation" and to its "arduous route";
5. Prevent discriminatory uses of federal assistance from "defeating the program's

congressionally imposed objective"; and
6. Halt the rampant discrimination in the states' implementation of federal programs.
Rehabilitating Section 504. National Council on Disability (NCD).:

https://www.ncd.gov/publications/2003/Feb122003
iii
January 17th 2022. The Following is a statement by National Council on Disability Chairman
Andres Gallegos
Today we remember and celebrate the legacy of an American who fundamentally changed this
country for the better. Dr. Martin Luther King, Jr. worked tirelessly and paid the ultimate
sacrifice to bring greater equality to America and ensure civil rights for all people, regardless of
race.

For the disability community, his work was reflected in the journey of passing the Americans
with Disabilities Act, where nonviolent protest and addressing the need for equity helped set the
tone of the movement; landmark legislation that likely would not exist without the work of Dr.
Martin Luther King Jr.
Disability rights ARE civil rights.
It was Dr. King who in 1966 said, “Of all forms of discrimination and inequalities, injustice in
health is the most shocking and inhumane.” Then he was challenging the use of federal funds to
support a segregated healthcare system.
As NCD works toward the establishment of a health equity framework for all people with
disabilities, we heed the words of Dr. King in calling for prioritization of people with disabilities
in the COVID-19 response and health equity.
NCD Chairman Statement on Dr. Martin Luther King, Jr. Day. NCD.:
https://ncd.gov/newsroom/2022/ncd-chairman-statement-dr-martin-luther-king-jr-day
iv
Why should interested parties care about Section 504 enforcement now that the ADA exists?
There are several reasons why the Federal Government should vigorously enforce Section 504 in
conjunction with the ADA: Section 504 covers a number of entities and federally funded
activities not reached by the ADA. Section 504 is intended to make certain that tax dollars will
not be used to establish, promote, or reinforce discrimination against people with disabilities.
Rehabilitating Section 504. NCD.: https://www.ncd.gov/publications/2003/Feb122003
v
In 1973, Americans with disabilities tied their hopes for equal access to government programs
to the passage of a little-noticed provision in the Rehabilitation Act that barred discrimination
on the basis of disability by recipients of federal funds. It took a nationwide sit-in at U.S.
Department of Health, Education and Welfare (HEW) buildings by people with disabilities in
1977, including a month-long occupation in San Francisco, to persuade the Federal Government
to issue regulations implementing Section 504 of the Rehabilitation Act. Since then, every
executive agency has implemented its mandate to bar discrimination against people with
disabilities by issuing regulations that describe what constitutes discrimination based on
disability and that set mandates for grantees. However, there have been wide discrepancies in
what the agencies have done to enforce their regulations and to ensure compliance with the law.

vi
One of the nation's first laws barring discrimination based on disability was enacted without
fanfare and with little notice. No hearings were held, no debate took place on the floor of either
house of Congress, and the name of the provision's author has long been forgotten.
The Rehabilitation Act of 1973 was a spending bill that authorized $1.55 billion in aid to people
with disabilities. Section 504 of the Act simply made it illegal for recipients of federal funds to
discriminate on the basis of disability. It was modeled on the language of Title VI of the Civil
Rights Act of 1964, which barred recipients of federal funds from discriminating on the basis of
race, color, or national origin. Section 504 states: “No otherwise qualified individual with a
disability in the United States...shall, solely by reason of...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 or under any program or activity conducted by
any Executive agency or by the United States Postal Service. 29 U.S.C. 794.”
To appreciate the significance of Section 504, it is useful to consider the genesis of Title VI.
More than a century after the adoption of the Fourteenth Amendment, racial and ethnic
minorities remained largely excluded, segregated, and stigmatized. Congress therefore adopted
a radically different approach to civil rights in 1964. It enacted laws that tied civil rights
enforcement to the expenditure of federal funds. From 1964 onward, it has been a federal civil
rights violation to use federal funds in ways that exclude, deny benefits to, or discriminate
against anyone on the basis of their race, color, or national origin.
The second major change in civil rights enforcement initiated by Title VI was that, unlike
constitutional violations, the 1964 Civil Rights Act prohibited unintentional acts of
discrimination as well as intentional acts. Thus, a hospital conglomerate that adopted a racially
neutral physician staff privilege policy that resulted in racially segregated hospitals might be in
violation of the 1964 Act. Similarly, employment agencies that used racially neutral screening
standards for job applicants that resulted in disproportionately lower job referrals to racial
minorities than to white applicants could be subject to enforcement actions.
In other words, recipients of federal funds may not use practices and policies that have a
disproportionate, adverse impact on the classes of people protected by the federal civil rights
laws. If they do use such practices and policies, courts have required recipients to show that they
were pursuing a valid business objective and that there are no alternative methods of fulfilling
the objective that have a less discriminatory impact.
Congress used this approach to civil rights enforcement to protect people with disabilities in
1973 when it amended the Rehabilitation Act to include Section 504. That section adopted the
language of the 1964 Civil Rights Act and prohibited the use of federal funds to exclude, deny
benefits to, or discriminate against any otherwise qualified handicapped individual in the United
States. The U.S. Supreme Court later confirmed that Section 504, like the 1964 Civil Rights Act,
prohibited unintentional as well as intentional discrimination.

To implement Section 504, Congress authorized HEW to issue regulations. Yet four years after
its passage, Section 504 remained little more than an intriguing piece of legislation. Concerned
about potential costs, the Federal Government had failed to issue regulations implementing the
law.
On April 3, 1977, demonstrators with disabilities held a candlelight vigil at the home of HEW
Secretary Joseph Califano to demand that he issue the draft regulations without gutting them.
Forty-eight hours later, demonstrators took over Califano's office in the nation's capital and held
protests at eight HEW regional offices. The HEW secretary reacted by cutting off telephone
access and refusing to allow food distribution to demonstrators, effectively forcing them to
abandon their efforts after 28 hours.
Califano had no such success in San Francisco, where advocates had also occupied the HEW
office. After enduring six days without access to telephones, attendants, or food, demonstrators
won the support of Representative Phillip Burton, who ordered guards to allow food to reach
demonstrators and to install three pay phones for use by protestors. A week later, San Francisco
Mayor George Moscone defied federal officials by delivering 20 air mattresses and shower hose
sprays to the occupied offices. The Black Panthers prepared food donated by local supermarkets,
and community support continued to grow.
After 12 days had passed with demonstrators showing no inclination to leave, Burton and
Representative George Miller held a congressional hearing in the building. There, protesters
learned that Califano was weighing changes to the original unpublished draft regulations that
would result in "separate but equal" accommodations for people with disabilities. The news
served only to strengthen the resolve of demonstrators.
On April 28, 1977, after disability rights advocates had occupied the San Francisco office of
HEW for nearly a month, Califano signed the Section 504 regulations without weakening the
provisions. In addition to issuing regulations for recipients of HEW funds, Califano also issued
model regulations for all other executive agencies to use to draft regulations that would apply to
their own programs. Today, every executive agency has its own set of 504 regulations and must
ensure that its grantees comply with Section 504. Rehabilitating Section 504. NCD.:
https://www.ncd.gov/publications/2003/Feb122003
vii
Why should interested parties care about Section 504 enforcement now that the Americans
with Disabilities Act (ADA) exists? There are several reasons why the Federal Government
should continue to enforce Section 504, in spite of the apparently broader coverage of the ADA.
First, and most important, Section 504 is based on the premise that tax dollars will not be used
to establish, promote, or reinforce discrimination against people with disabilities. Entities that
violate Section 504 risk termination of their federal monies by the agency that issued the funds.
In contrast, the ADA has no funding termination remedy. Moreover, DOJ is the only agency that
has independent litigating authority to enforce Title II of the ADA, including alternative means
of dispute resolution. It does not have the authority to limit the timing or the amount of federal
financial assistance, or to condition such funds on compliance with Section 504. Only the federal
grant agencies have this authority.
Conditioning receipt of federal funds is important for another reason: It requires grant program
staff to develop ongoing relationships with grantees. Agency staff are best positioned to learn
how their agency's funds are used, especially because of the recent trend by state and local
governments to adopt annual and multiyear plans that explain how they intend to use the federal
funds they expect to receive.
Because of this knowledge, the funding agencies have the authority and the ability to influence
their recipients' choices of how to spend their federal dollars. Recipient cities, for example, have
used their federal funds to create separate recreation activities or swimming classes, for
example, for children with disabilities; to deny participation in employment programs to
applicants who take medications for psychiatric disabilities; and to place public benefit
programs in inaccessible buildings. Each of these decisions is likely to be or to lead to a
violation of both Section 504 and the ADA. However, only the funding agency can withhold the
amount of funding that is equivalent to the amount that would support the illegal activity. It can
do much more, of course, but often the threat of temporarily withholding even a portion of the
funds is enough to persuade the city to rethink its plans.
Second, agency staff have ongoing communications with recipients. Rarely do recipients contact
an OCR for information or technical assistance. They direct their questions to the program
funding staff, with whom they have relatively frequent conversations. To maximize enforcement,
civil rights policies, practices, and goals must be incorporated into the programs that receive
federal funds. That is much more likely to happen if both the funding and recipient staff
understand the civil rights laws and how to identify when federal funds are being used to
discriminate. If the funding agencies do not enforce Section 504, there is little or no opportunity
for this type of education to occur.
Third, DOJ will never have sufficient resources to litigate each of these types of 504/ADA
violations, and for those it does pursue, it must pursue them through time- and resource-
consuming litigation. As a result, DOJ is selective about cases it pursues, often prosecuting only
the most egregious cases or those that are likely to have a significant impact in a particular
area. Less precedent-setting but equally meritorious enforcement of Section 504 violations is
done only by federal funding agencies.
Fourth, Section 504 covers a number of entities that are not reached by the ADA. For example,
the ADA covers only housing that is funded or operated by state and local governments. In
contrast, Section 504 covers housing that is built or operated by other types of entities that
receive federal funds, such as housing run by nonprofits.
Finally, government enforcement of Section 504 is particularly important in light of recent U.S.
Supreme Court decisions that limit the scope of private civil rights enforcement. In Alexander v.
Sandoval, the Supreme Court held that only the Federal Government, not private individuals,
could use Title VI of the 1964 Civil Rights Act to challenge discrimination on the basis of
disparate impact. However, it would be illogical to read the constraint articulated in Sandoval to
apply to Section 504. Section 504 clearly does not prohibit only intentional discrimination, since
much of the conduct that Congress sought to alter in passing the Rehabilitation Act would be
difficult if not impossible to reach were the Act construed to proscribe only conduct fueled by a
discriminatory intent. Despite superficial associations of Section 504 and ADA Title II with some
aspects of Title VI, Section 504 and Title II of ADA differ in important respects that make the
reasoning and analysis of the majority in Sandoval inapplicable. The ability to challenge
disparate impact discrimination is critical to addressing bias against people with disabilities,
particularly when intentional discrimination is difficult to prove.
In Board of Trustees of the University of Alabama v. Garrett, the Supreme Court found that the
ADA does not permit individuals to recover money damages when a state violates Title I of the
Act. However, the Federal Government may still recover such damages against states. As the
Supreme Court continues to limit the ability of individuals to use the nation's civil rights laws,
the Federal Government's enforcement of Section 504 is more important today than ever before.
viii
Though all federal agencies have developed procedures by which federal funds may be
terminated for failure to comply with Section 504, few have actually pursued termination as a
remedy. One reason may be that Congress attached an onerous process that federal agencies
must follow to terminate funds.
Although the law creates a burdensome process for fund termination, it remains perhaps the
single most effective way to remedy discrimination. If it were used to address the most egregious
cases of discrimination, it would create a powerful deterrent that would likely improve voluntary
compliance with Section 504 by other federal grantees. By including it in the statute, lawmakers
envisioned that less powerful remedies would not always prove sufficient to root out
discrimination on the basis of disability. But the use of this remedy requires leadership and
political will. For now, funding termination remains a powerful tool that has yet to be tapped by
the agencies that are studied in this report. Just as clearly, federal agencies need to develop a
range of effective sanctions that can also be used when necessary. Rehabilitating Section 504.
NCD.: https://www.ncd.gov/publications/2003/Feb122003
ix
In the late 1970s, HEW's Office for Civil Rights (OCR) demanded that every college and
university sign an Assurance of Compliance with the federal civil rights laws. Grove City
College refused, saying that it did not receive any federal funds. InGrove City College v. Bell,
the Supreme Court ruled that because the college accepted federally funded student
scholarships, it had to comply with civil rights laws. However, the Court limited that obligation
by holding that only the business office, which was the part of the college that actually received
the scholarship funds, had to meet the civil rights obligations at issue. None of the other parts of
the college had to ensure that their courses, dormitories, health services, or any of their
programs were provided without discrimination on the basis of race, color, national origin,
religion, age, disability, or gender.
Congress rejected the Supreme Court's interpretation by enacting the Civil Rights Restoration
Act of 1987. The Act imposed federal civil rights responsibilities on every part of an agency if
any of its parts received federal funding. For Grove City College, that meant that the college's
acceptance of federally funded student scholarships triggered civil rights obligations in every
program, practice, and policy it conducted or adopted.
The program-wide requirement of Section 504 provides substantial flexibility to schools and
other federal fund recipients. If a college has three antiquated but similar dormitories, the
college is not required to make all three buildings accessible. As long as its dormitory program
meets the needs of all of its students with mobility impairments and simultaneously provides its
other programs in the most integrated setting, the college may make only one or two of its dorms
structurally accessible, rather than all three.
Viewing the situation from a broader perspective, colleges will find many practices, policies, and
buildings that inhibit their ability to deliver their education program in the most integrated
setting that is appropriate. What the Section 504 regulations permit colleges to do is to identify
and correct the barriers that are likely to bring the program as a whole into compliance with the
law, without correcting every barrier.
It is important to note, however, that the "program-wide" requirement applies both to

architectural access and to programmatic access. A recipient of federal funds may not, for
example, justify one inaccessible program by increasing the accessibility of another program.
More concretely, a federally funded employer may not refuse to hire otherwise qualified people
with visual impairments simply because he provides marketing materials to potential clients in
Braille. Rehabilitating Section 504. NCD.: https://www.ncd.gov/publications/2003/Feb122003
x
Excerpt of Email Sent by Michael A. Ayele (a.k.a) W to the Missouri Department of Mental
Health (MOMDH) on July 29th 2021
When I was previously working for the DMH, I had the opportunity to read the Personal Health
Information (PHI) of every patient in the now defunct BFC. I had this opportunity in part
because I had become a float employee of the FSH (BFC) and I worked on every ward of the
BFC. As a former employee of the DMH (FSH), I would like to take this opportunity to attest that
patient/prisoner Aschalew Belachew was the only person in the BFC who had a guardian.
Though it is possible that other patients/prisoners had a guardian, their PHI (to the extent of my
knowledge) did not explicitly mention them having one.

My request for records are as follows. 1) How does the DMH view guardianships? 2) Does
the DMH instinctively presume (as I do) that guardianships are unnecessary and that there may
be less restrictive alternatives that can address the individual's need? 3) Has the guardian
of Aschalew Belachew ever filed a complaint with the DMH, the Joint Commission and/or the
Department of Health and Human Services (HHS) expressing concerns
about Aschalew Belachew being excluded from benefits afforded to Muhammer Suljacer (such as
the appointment of a translator)? If yes, will you promptly disclose those records either to my e-
mail or in the alternative my mailing address? What I am requesting for prompt disclosure are
all records within your possession detailing (1) the list of Britney Spears music songs on the I-
Pods of the DMH (provided to patients/prisoners thereof afforded this privilege for their good
behavior); (2) the list of Britney Spears music songs listened by you (Janet Gordon); (3) the
manner in which guardianships are viewed by the DMH; (4) all complaints filed by the guardian
of Aschalew Belachew expressing concerns about this patient/prisoner being excluded from
benefits afforded to Muhammer Suljacer at the FSH (BFC) Social Learning Program (SLP).
Have a good day. Take care.
E-mail Sent by the Missouri Department of Mental Health (MODMH) to Michael A. Ayele
(a.k.a) W on August 02nd 2021
W,
For items 1) and 4), records pertaining to the care and treatment of residents of the department
are closed in accordance with Sections 630.140 and 610.021(14), RSMo. For item 2), songs
listened to by me are not records of the department. For item 3), more specificity as to the
record(s) being requested is needed in order to respond, as previously communicated. As stated,
“guardianships” is too broad of a topic.
Sincerely,
Janet Gordon
Records Custodian
Department of Mental Health
573/751-8067
Resources:
Stressed by COVID-19? Access these resources for your emotional
health: https://dmh.mo.gov/disaster-services/covid-19-information
DHSS COVID-19 24 hour hotline: 877-435-8411
Disaster Distress Helpline: Phone 800/985-5990. Text “TalkWithUs” to 66746

Social Justice: https://dmh.mo.gov/disaster-services/coping-with-community-unrest
MO Show Me Hope Crisis Counseling Program: https://www.moshowmehope.org/
CONFIDENTIALITY NOTICE: This e-mail communication and any attachments may contain
confidential and privileged information for the use of the designated recipients named above.
The designated recipients are prohibited from redisclosing this information to any other party
without authorization and are required to destroy the information after its stated need has been
fulfilled. If you are not the intended recipient, you are hereby notified that you have received this
communication in error and that any review, disclosure, dissemination, distribution or copying of
it or its contents is prohibited by federal or state law. If you have received this communication in
error, please notify me immediately by telephone at 573.751.8067, and destroy all copies of this
communication and any attachments.
E-mail Sent by Michael A. Ayele (a.k.a) W to the MODMH on August 03rd 2021
Hello,
Thank you for your email. I am in receipt of it. I read your correspondence a little earlier. As
previously mentioned, guardianship was not a topic that was covered at length in the six-weeks
training I was provided by the Fulton State Hospital (FSH) in Fiscal Year (F.Y) 2013. {i} In fact,
I knew very little about conservatorships/guardianships except what I read in the media, which
mostly involved Britney Spears. However, I did some research in F.Y 2013 about
conservatorships (in general) after I found out that patient/prisoner Aschalew Belachew had a
guardian. The research I had performed was consistent with the National Council on Disability
(NCD) March 2018 finding that guardianship involved a state court determination that an
"individual lacks the capacity to make decisions with respect to their health, safety, welfare and
property" and that it entailed "the removal of rights protected by the U.S constitution." As a
former employee of the FSH, I would like to attest that I had an overall negative impression
about the system of guardianship (in part because of Britney Spears conservatorship). My
feelings in this regard (have not changed and) have only been reinforced overtime. As of this
writing, I am sincerely convinced that guardianship is not what proponents of the system portray
it to be. As a former employee of the FSH, I didn't believe guardianship to be a good thing: I still
don't. As a representative of the media and a member of the general public, I instinctively
presume that guardianships are unnecessary and that there may be less restrictive alternatives
that can address the individual's need.
My request for records are as follows. 1) Have social workers, psychologists, psychiatrists and
other employees of the FSH previously written about guardianships? 2) Have social workers,
psychologists, psychiatrists and other employees of the FSH presented their research about
guardianship in Powerpoint and/or Portable Document Format (PDF)? If yes, will you promptly
disclose those records either to my e-mail or in the alternative my mailing address? 3) Have
social workers, psychologists, psychiatrists and other employees of the FSH ever been asked to
testify at a hearing where guardianship was at issue? If yes, have you within your possession the
transcript of the hearing? If yes, will you promptly disclose those transcripts either to my e-mail
or in the alternative my mailing address?
What I am requesting for prompt disclosure are all records within your possession detailing (1)
the research performed by social workers, psychologists, psychiatrists and other employees of
the FSH about conservatorship/guardianship in Word, Powerpoint and/or PDF; (2) the
transcripts of testimony provided by social workers, psychologists and psychiatrists of the FSH
about guardianship in the judicial branch of the Missouri government and (3) copies of the
content material provided to staff of the FSH about guardianships and the Not Guilty by Reason
of Insanity (NGRI) plea. Have a good day.
W (AACL)
Michael A. Ayele
E-mail Sent by the MODMH on August 05th 2021 to Michael A. Ayele (a.k.a) W.
W,
The request is overly broad in scope. In order to conduct an effective and efficient search for
records, more specificity is needed for items 1) and 3). Please specify the employees, the
precise research records, and the time period. For item 2), the department does not maintain
records of the judicial branch of the state of Missouri.
Sincerely,
Janet Gordon
Records Custodian
573/751-8067
Resources:
Stressed by COVID-19? Access these resources for your emotional
health: https://dmh.mo.gov/disaster-services/covid-19-information
DHSS COVID-19 24 hour hotline: 877-435-8411

Disaster Distress Helpline: Phone 800/985-5990. Text “TalkWithUs” to 66746
Social Justice: https://dmh.mo.gov/disaster-services/coping-with-community-unrest
MO Show Me Hope Crisis Counseling Program: https://www.moshowmehope.org/
E-mail Sent by Michael A. Ayele (a.k.a) W to the MODMH on August 05th 2021
Hello,
Thank you for your e-mail. I am in receipt of it. I read your correspondence a little earlier. When
I was a public employee of the DMH, the people who spent the most time with patients/prisoners
of the Fulton State Hospital (FSH) were employees assigned the title of Forensic Rehab
Specialist (FRS). As a former employee of the FSH, I can attest that FRS knew the needs of
patients/prisoners of the FSH better than social workers, nurses and doctors working at the
hospital because an overwhelming majority of them (including myself) spent over 90% of their
12 hour shifts performing various tasks and activities with patients/prisoners of the FSH. FRS
also spoke with patients/prisoners of the FSH on a more frequent basis than social workers,
nurses and doctors. The statements I have made should not be construed as a criticism of the
FSH. However, they should be construed to mean that FRS could provide valuable input about
the treatment of patients/prisoners of the FSH even if they don't have a license to practice as
social workers, nurses and doctors. As a former employee of the FSH, I believe it is wrong to
disregard the opinions of a covered entity pursuant to the Health Insurance Portability and
Accountability Act (HIPAA) because of their "pay-grades." As a former employee of the FSH, I
believe the wrong is particularly egregious when the covered entity (1) has expressed opposition
to preferential treatment in the service of healthcare and (2) is retaliated upon in the form of a
negative performance evaluation for vocally and in writing disapproving of discriminatory
practices.
The records I am requesting for prompt disclosure are the content materials provided to staff of
the FSH during their mandatory six-weeks training. Specifically, I am requesting for prompt
disclosure the content materials provided to FRS that cover (1) the Not Guilty by Reason of
Insanity (NGRI) plea taken by patients/prisoners of the FSH; (2) the methods used by the FSH
to restore the competency of these individuals; (3) the system of guardianship in the State of
Missouri and (4) information provided to patients/prisoners of the FSH (who have a guardian)
about the applications to file in court if they wish to rid themselves of their conservator. (…)
E-mail Sent by Michael A. Ayele (a.k.a) W to the MODMH on June 07th 2022 After Further
Discussions Since August 2021
Hello,
Thank you for your email. I am in receipt of it. I am writing this letter in response to your
correspondence from June 06th 2022 to express concerns about the manner in which you have
processed my records request. Via email dated September 01st 2021 and then again on June
01st 2022, I had informed you that I was made aware of concerns about the length of time
patients/prisoners of the Hearnes Forensic Center (HFC) at the Fulton State Hospital (FSH)
were being incarcerated even though they had ceased to pose an imminent threat to the lives of
others and themselves. I had also asked (via email dated June 01st 2022) that you provide
records detailing [1] the training provided by the MODMH to employees thereof on how to
restore the competency of individuals unable to help themselves or assist their attorneys in the
preparation of a defense for the criminal charges they are facing; [2] the policy of the MODMH
on providing legal forms such as Habeas Corpus to patients/prisoners who request it. In your
correspondence from June 03rd 2022, you had stated that you would perform a search for these
two items. However, in your correspondence from June 06th 2022, you have failed to disclose
any records pertaining to these two items.
For the reasons mentioned above, I would again like to reiterate concerns about the adequacy of
the search you have performed before the letter you have sent me on June 06th 2022. As you are
likely aware, the United States Court of Appeals for the Eight Circuit had in January 2016 found
that patient/prisoner Todd James Luh, “a mental patient at Fulton State Hospital (FSH) (…) had
stated a retaliation claim based on his allegations that defendants Lyskowski, Brown, Putt, Oney,
Salmons, Olsen, Sailor, Pearson, Bucklew, Groves, Graham, Poettgen, Maddox, Thackeray,
Harry, DeTremp, Morales, Hamilton, Wright, and Wilson, in retaliation for Luh’s complaints,
grievances, and lawsuits, (1) directed other patients to assault him; (2) falsely accused him of
rule violations and placed him in seclusion;(3) intentionally denied him or interfered with his
necessary medical treatment; and (4) prevented him from going to his job so he could not earn
money to support his litigation activities.”
The core issues presented in this records request are as follows. 1) What formal/informal ties
exist between the MODMH, the Western District Court of Missouri, the United States Court of
Appeals and the Missouri Attorney General? Were conversations had between the Missouri
Attorney General, the MODMH, the Western District Court of Missouri and the United States
Court of Appeals about the complaint filed by Todd James Luh? 2) Are patients/prisoners of the
MODMH able to access a Habeas Corpus form and/or a Civil Complaint form if they wish to
contact the judicial branch of the U.S government? Are patients/prisoners of the MODMH
required to pay a fee for mailing complaints to the judicial branch of the U.S government?
As a former employee of the MODMH (FSH), I ask that you perform a more thorough search for
responsive records detailing [1] the formal/informal ties, which exist between the MODMH, the
Western District Court of Missouri, the United States Court of Appeals, and the Missouri
Attorney General; [2] the conversations between the MODMH, the Western District Court of
Missouri, the United States Court of Appeals and Julie Marie Blake (who represented the
MODMH) on the subject of the complaint filed by Todd James Luh; [3] the training provided by
the MODMH to employees thereof on how to restore the competency of individuals unable to
help themselves or assist their attorneys in the preparation of a defense for the criminal charges
they are facing; [4] the policy of the MODMH on providing legal forms such as Habeas
Corpus to patients/prisoners who request it; [5] the policy of the MODMH on requiring
patients/prisoners to pay a fee for postal mail correspondence with the judicial branch of the U.S
government; [6] your discussions about the Health Insurance Portability and Accountability Act
(HIPAA) allowing for employees of the DMH to object to specific medical treatments provided to
a patient/prisoner of the FSH, [7] whether Kay Butler ever was an employee of the MODMH
(FSH); [8] whether Kay Butler filed any complaint on behalf of Todd James Luh pursuant to
HIPAA and/or the Americans with Disabilities Act (ADA) as an employee of the MODMH
(FSH).
I sincerely hope you reconsider your response. Be well. Take care.
W (AACL)
Michael A. Ayele
E-mail Sent by the MODMH on July 06th 2022 to Michael A. Ayele (a.k.a) W
W,
Please see below for responses to your request for records.

Sincerely,
Janet Gordon
Records Custodian
Clinical staff who provide competency education are offered training and are supervised in
the facilitation of such services (this is provided by the Program Coordinator/Unit
Manager). Below is information provided from a program manual which discusses the
areas of service.
COMPETENCY SERVICES (CS)

All disciplines are involved in the provision of Competency Services, which includes
implementation of the Track System and provision of competency enhancement/education
interventions for IST patients. A licensed psychologist manages the CS program. The CS
manager oversees IST patients’ progression through the Track System; works with the treatment
teams and unit psychologists to update competency goals/objectives/interventions on treatment
plans; monitors the interfering symptoms chart, commitment dates, and CFE referrals; leads
the competency team meetings; coordinates CS groups and rosters; trains providers; and provides
consultation to staff and administration as needed.
Competency Education: Competency education is provided in both group and 1:1 formats
according to individual patient needs as informed by their Track and competency assessment
outcomes; hence, there may be some patients who are not placed in competency education
groups. For example, patients with active psychosis can be easily confused and overwhelmed by
too much legal education or intimidated and distracted by group situations; therefore, the focus
of treatment for these patients, at least initially, is medication management (as noted in the
descriptions of Tracks A and B above). Higher functioning patients who exhibit adequate factual
and rational understanding at admission receive further assessment before placement
in competency education services.
A patient’s competency education is adjusted according to their progress on
monthly competency evaluations. For example, competency interventions for a patient that
shows improvement but remains incompetent after 30 days are updated to target the current
psycholegal deficits.
Competency Groups/Interventions
· COMP I
· Flashcard group
· Legal Facts
· COMP II
· Application of Legal Concepts
· Understanding My Case
· Michael’s Game (Kahzaal, Favrod, Libberecht, Finot, Azoulay, & Benzakin, 2006)
· Slater Method (Wall, Krupp, & Guilmette, 2003)
· Individual COMP Enhancement
· Mock Trial
· Guest Speakers
Special Populations: Research studies emphasize the challenges involved when incompetency is
primarily due to an intellectual disability (Anderson & Hewitt, 2002) and the need for more
specialized approaches when working with this population. At CBM, patients with moderate to
severe cognitive deficits receive specialized competency education using the Slater Method.
The primary distinction is to de-emphasize cognitive concepts and use simple language, simple
learning strategies, and familiar constructs. Repetition and multisensory learning strategies are
used to help patients learn and retain content.
Individual sessions are held between one and five times a week for up to an hour. Each module is
reviewed a minimum of three times. The program lasts for six months with additional six-month
increments provided if necessary.
The Slater Method consists of five modules:
1. the purpose of the training, review of charges, please, and potential consequences;
2. courtroom personnel;
3. courtroom proceedings;
4. communicating with the attorney, giving testimony, and assisting in defense; and
5. tolerating the stress of the proceedings.
Patients whose competency is impaired by delusional beliefs also pose a significant challenge to
restoration efforts. Michael's Game is a cognitive behavioral intervention aimed at improving
hypothetical reasoning. It was conceived as a group card game in order to allow patients to
become partners of a fictive character (Michael) interacting together with cards containing
impersonal information which may however reflect their own problems. Participants have to help
Michael to find alternatives to the erroneous conclusions that Michael draws from situations
described on each card. Through the game, patients are introduced to several active ingredients
of cognitive therapy, such as the normalization of psychotic symptoms, cognitive restructuring
techniques aiming to develop alternative explanations to their delusions, reality testing, and
connecting belief to emotion and behavior.
Clients have access to Lexus/Nexus. Many have their own legal counsel through the Court
but should they need legal assistance, the facility would assist them in contacting Legal Aid
and/or Missouri Protection & Advocacy.
E-mail Sent by the MODMH to Michael A. Ayele (a.k.a) W on July 08th 2022
W,
In response to item (1), (2), and (6), the records as described, are too broad and lack adequate
specificity in order to be able to conduct an efficient and effective search for records. For items
(3) and (4), responses were sent to you on July 6, 2022. For item (5), attached you will find the
Fulton State Hospital policy on client mail. For items (7) and (8), “Kay Butler” does not appear
in the Missouri Accountability Portal as an employee of the department from 2007 to the most
current date available.
Sincerely,

Janet Gordon
Records Custodian
Excerpt of Email Sent by Michael A. Ayele (a.k.a) W on September 12th 2021 to the Missouri
xi
Department of Mental Health (MODMH)
Please be advised that I have concerns with the records you have disclosed on August 26th 2021
because of the language used by the Director of the Division of Behavioral Health (DBH) about
the involuntary administration of psychotropic drugs. As a former employee of the DMH (FSH),
I have (personally) found the language used by the Director of the DBH to be broad, unclear,
and extremely vague. For instance, the Director of the DBH has noted that "all patients in the
Department of Mental Health (DMH) facilities may be administered psychotropic medication on
an involuntary basis when a determination of emergency is made by appropriate clinical
personnel at the facility. An emergency exists where there is reasonable likelihood of imminent
physical harm and/or life threatening behavior to the patient or others. The treating provider
who prescribes the psychotropic medication shall document the circumstances of the emergency,
the facts surrounding the medication need, and why involuntary psychotropic medication is
considered the least restrictive treatment. A new order shall be written for each emergency dose.
(...) Patients admitted for Inpatient Pre-Trial Evaluations pursuant to Section 552.020, RSMo,
and detainees pursuant to Section 632.480 et seq., RSMo., may not be medicated, absent an
emergency, without either the consent of the patient or expressed written consent from the
committing court. The psychiatrist must communicate the desire to medicate such a patient to a
designated assistant general counsel, who will communicate with the committing court and
obtain a written order from the judge. (...) The Clinical Due Process hearing will be repeated
every 6 months if the patient still needs to be involuntarily medicated or until the patient is
discharged from the facility." (…)
The language used by the Director of the DBH [is very concerning because it] fails to clearly
inform appropriate clinical personnel about the type of behaviors that would warrant the
forcible administration of psychotropic drugs. As a former employee of the DMH (FSH), I do
believe the language used by the Director of the DBH could create circumstances ripe for abuse.
Fathom for instance a hypothetical scenario where a clinical personnel of the DBH opines that a
patient/prisoner is dangerous to her/himself and others. Fathom in the same hypothetical
scenario that the clinical personnel who has issued this opinion is (1) biased, (2) looking to
retaliate on the individual as a form of punishment; (3) not in a position to list specific behaviors
that would justify the forcible administration of psychotropic drugs because the patient/prisoner
has not exhibited any. As a former employee of the DMH (FSH), I believe this hypothetical
scenario I have described could happen. For this very reason, I must caution you to admit as
evidence audio and video footage depicting patients/prisoners displaying violent behavior that
would in your opinion justify the forcible administration of psychotropic drugs (whenever you
are considering such a serious thing). As you have correctly noted in the records you have
disclosed to me, the forcible administration of psychotropic drugs has the potential to re-
traumatize people who may have been victims of a violent crime (especially if the use of force is
without appropriate medical and legal basis to justify).
As a former employee of the DMH (FSH), I also have several concerns about the eagerness of
the Director of the DBH to put non-violent people through the emotionally and financially
draining process of guardianship. For example, the Director of the DBH has previously noted
that if patients are "determined to lack adequate mental capacity but are not imminently
dangerous, clinicians shall proceed by filing for guardianship." (…) Have a good day. Take
care.
W (AACL)
Michael A. Ayele
Excerpt of Email Sent by Michael A. Ayele (a.k.a) W on September 20th 2021 to the MODMH
Hello,
Thank you for your e-mail. I am in receipt of it. I am writing this letter in response to your
correspondences dated August 26th 2021 and September 15th 2021. (…) Please be advised that I
have several concerns about your correspondence dated August 26th and September 15th 2021.
According to the Director of the Division of Behavioral Health (DBH), "any patient not under
guardianship who is currently an active, practicing member of a generally recognized, organized
church or religion which teaches reliance upon treatment by prayer or other spiritual means of
healing may refuse the administration of medication unless an emergency exists as defined in
section (1) of this DOR. Whenever a patient seeks to refuse medication due to religious belief,
the COO shall convene and chair a review panel consisting of a facility chaplain, a licensed
social worker, a psychologist and the medical director. The panel shall seek advice from an
outside member of the patient’s religion or church whenever possible. The panel shall interview
the patient, review records, and seek outside advice and confirmation that: 1. the patient’s
religion is a generally recognized, organized faith which teaches reliance on spiritual means; 2.
the patient has been and is currently an active participating member. If the review panel
confirms sections 5(B) 1 and 2, the patient’s refusal of medication shall be honored. If either
section 5(B) 1 or 2 are not confirmed, the refusal will be handled as set forth in section (2) of
this DOR. "
As a former employee of the DMH (FSH), I have several concerns about the language used by
the Director of the DBH for failing to clearly state that employees and legal representatives of
the DMH will not use force in administering psychotropic drugs onto patients/prisoners who
are not posing harm to themselves and others if they do not consent to taking drugs prescribed
by a doctor for their alleged mental disorders/intellectual disabilities. As a former employee of
the DMH (FSH), I would find it absurd if medical doctors would force the administration of pills
such as Paracetamol upon patients suffering from a headache (who wish for their pain to go
away without taking pharmaceutical drugs). In my opinion, the forcible use of psychotropic
drugs onto patients/prisoners of the DMH (who are not posing an immediate danger to
themselves/others) is just as bizarre as medical doctors looking to forcibly administer
Paracetamol onto patients wishing for their headaches to go away without taking
pharmaceutical drugs (including but not limited to Paracetamol). As a former employee of the
DMH, I must caution you to refrain from forcibly administering psychotropic drugs upon
patients/prisoners not posing harm to themselves and others if they do not wish to be on such
drugs. I would also advise you to submit video and audio evidence of patients/prisoners posing
harm to themselves and others before any hearing where employees and legal representatives
of the DMH are considering the drastic measure of forcibly administering psychotropic
drugs. (…)
W (AACL)
Michael A. Ayele

EXHIBIT 1.
Cummings v. Premier Rehab Keller PLLC:
Implications and Avenues for Reform

January 19, 2023
An independent federal agency making recommendations to the President and Congress to
enhance the quality of life for all Americans with disabilities and their families.
Letter of Transmittal
January 19, 2023
The President
The White House
Washington, DC 20500
Dear Mr. President:
On behalf of the National Council on Disability (NCD), I submit the report, Cummings v.
Premier Rehab Keller PLLC: Implications and Avenues for Reform.
On April 28, 2022, the U.S. Supreme Court held that a plaintiff bringing suit to enforce
the antidiscrimination provisions of Section 504 of the Rehabilitation Act of 1973
(Section 504), or Section 1557 of the Patient Protection and Affordable Care Act
(Section 1557) cannot recover damages for emotional distress resulting from intentional
disability-based discrimination. The Cummings decision has significant implications for
people with disabilities who experience intentional discrimination by public and private
entities who receive federal financial assistance (FFA). Entities such as public and
private colleges and universities, hospitals, group homes, physical therapist offices, and
others who receive FFA, including federal grants, loans, or other forms of FFA will no
longer need to remedy intentional discrimination based on disability when the resulting
harm is anxiety, stress, depression, marital strain, humiliation, or other similar emotional
pain. Compensation for economic losses is now the only remedy available. However,
outside of the employment context, people who experience disability-based
discrimination by such entities primarily suffer emotional distress from the
discrimination, not economic loss. The decision also leaves people who experience
emotional distress from disability-based discrimination by public or private entities
wholly reliant on state law for redress, and state laws vary widely.
This report analyzes the Supreme Court’s decision, discusses the challenge of securing
injunctive relief when emotional distress damages are not available, describes the
impacts of Cummings on people with disabilities, including immediate impacts already
experienced, and the availability of emotional distress damages under state laws.
1
NCD concludes that the most effective manner to respond to the Cummings decision is
enactment of legislation which restores the ability of people with disabilities to seek
redress for emotional distress damages for disability-based discrimination. The
legislation should also instruct federal courts not to use contract law analogy in
analyzing discrimination cases under Congress’s Spending Clause authority. NCD also
recommends that federal agencies notify FFA recipients of the specific damages that
recipients may be liable for if they violate Section 504, Section 1557, or other federal
antidiscrimination laws based on the Spending Clause.
Appropriate and adequate remedies must continue to be available to people with

disabilities who experience intentional discrimination at the hands of recipients of FFA.
Without the availability of emotional distress damages under these statutes, victims of
disability-based discrimination cannot be made whole.
NCD strongly believes that action must be taken to restore the remedy that Cummings
eliminated. Implementation of the recommendations in this report will restore the
availability of emotional distress damages and provide recipients of FFA with notice of
their responsibilities regarding non-discrimination.
Federal funds should not be used to perpetuate discrimination. Without a legislative fix
to Section 504 and Section 1557, that is what is now occurring.
Respectfully,
Andrés J. Gallegos, J.D.

Chairman
2
National Council on Disability Members and Staff
Members
Andrés J. Gallegos, Chairman
Claudia Gordon, Vice Chair
Hoskie Benally, Jr.
Sascha Bittner
Theo Braddy
Shawn Kennemer
Risa Rifkin
Neil Romano
Emily Voorde
Staff
Anne C. Sommers McIntosh, Executive Director
Joan M. Durocher, General Counsel & Director of Policy
Lisa Grubb, Director of Administration, Finance, & Operations
Stacey S. Brown, Staff Assistant

Kimie Eacobacci, Legislative Affairs Specialist
Netterie Lewis, Administrative Support Specialist
Amy Nicholas, Senior Attorney Advisor
Nicholas Sabula, Public Affairs Specialist
Amged Soliman, Senior Attorney Advisor
Ana Torres-Davis, Senior Attorney Advisor
Keith Woods, Financial Management Analyst
3
Contents

Summary of NCD Brief on Cummings v Premier Rehab Keller ................................................... 5

I. Introduction ............................................................................................................................................ 7
II. Emotional Distress Damages and the Cummings Decision .................................................... 8
A. Analysis of the Decision ........................................................................................................ 8
B. Damages for Breach of Contract ....................................................................................... 11
C. Notice to Federal Funds Recipients of Potential Liability ........................................... 13
D. State Courts Commonly Allow for Emotional Distress Damages in Contract
Cases ………………………………………………………………………………………………………………………………………………16
E. The Challenge of Securing Injunctive Relief When Emotional Distress Damages
are Not Available ................................................................................................................................ 17
III. Impact on the Cummings Decision on People with Disabilities .......................................... 19
A. Immediate Impact ................................................................................................................... 19
B. Remedies Remaining for Emotional Distress Damages under State Law .............. 21
IV. Recommendations ........................................................................................................................... 22
A. Congress should Enact Legislation to address Cummings Decision ..................... 22
B. Federal Agencies should include Notice in Grant Awards that recipients are
subject to specific damages for violations of Section 504 ..................................................... 23
Appendix A: 2022 Review of State Human and Civil Rights Laws: Compensatory
Damages (Emotional Distress) ........................................................................................................... 24

4

Acknowledgments
The National Council on Disability (NCD) thanks David Hutt and Philip Fornaci with the
National Disability Rights Network (NDRN) for their work developing this brief.
5

Summary of NCD Brief on Cummings v. Premier Rehab Keller
The National Council on Disability (NCD), in this brief analysis discusses the holding
and implications of the U.S. Supreme Court decision in Cummings v. Premier Rehab
Keller P.L.L.C. handed down in April 2022. The Cummings decision eliminated the
ability of people who experience disability-based intentional discrimination to obtain
emotional distress damages from public and private entities who receive federal
financial assistance (FFA) from the federal government under Section 504 of the
Rehabilitation Act of 1973 or Section 1557 of the Patient Protection and Affordable Care
Act. Entities such as public and private colleges and universities, hospitals, group
homes, physical therapist offices, and others who receive FFA, including federal grants,
loans, or other forms of FFA will no longer need to remedy discrimination based on
disability when the only harm of the discrimination results in anxiety, stress, depression,
marital strain, humiliation, or other similar emotional pain.
The Cummings decision leaves people with a disability who experience emotional
distress from discrimination in public accommodations reliant on state law, which vary
widely. The decision is currently limited to violations of Section 504 of the Rehabilitation
Act of 1973 and Section 1557 of the Patient Protection and Affordable Care Act,
however, it is possible a future court will prohibit emotional distress damages for other
civil rights violations by FFA recipients under Title VI of the Civil Rights Act of 1964, as
amended, or Title IX of the Education Act of 1972.
NCD concludes that the most effective way to address the Cummings decision is
through enactment of legislation which restores the ability of people with disabilities to
seek redress for emotional distress damages because of a disability-based
discrimination, and which instructs the federal courts not to use contract law analogy in
deciding discrimination cases under Congress’s Spending Clause authority. NCD also
recommends that federal agencies clearly state in all applicable notices, or by other
means as appropriate, the specific damages an FFA recipient may be liable to
compensate if the recipient violates Section 504, Section 1557, and other similar federal
antidiscrimination laws based on the Spending Clause.
6
I. Introduction
In April 2022 the U.S. Supreme Court issued a decision in Cummings v. Premier Rehab
Keller P.L.L.C i with significant implications for people with disabilities seeking to obtain
redress for disability-based discrimination. In Cummings, the Court held that a plaintiff
bringing suit to enforce the antidiscrimination provisions of Section 504 of the
Rehabilitation Act of 1973 (RA or Section 504) or Section 1557 of the Patient Protection
and Affordable Care Act (ACA or Section 1557) cannot recover damages for emotional
distress which resulted from intentional discrimination. Although the Court reaffirmed the
right of individuals to sue for other kinds of damages under these statutes, it rejected
efforts to allow suits for compensation for emotional harm or injury caused by unlawful
discrimination under either statute. With limited relief available, the decision now
restricts people with disabilities seeking to enforce their rights under these federal
antidiscrimination laws.ii
Often, people who experience disability-based discrimination at the hands of a public or

private entity which provides a service primarily suffer “emotional distress” damages for
the pain and humiliation which results from the discrimination. Typically outside of the
employment context, when disability-based discrimination occurs the person does not
suffer significant economic losses, such as additional medical costs or other expenses,
lost income, or lost property.
After Cummings, only compensation for economic losses is now available under Section
504, Section 1557, and other civil rights statues enacted through Congress’s authority
under the Spending Clause of the U.S. Constitution.iii While the Americans with
Disabilities Act (ADA) is not Spending Clause legislation,iv the Cummings decision
creates an additional concern that the Supreme Court may apply a similar limitation on
remedies when a private person subject to disability-based discrimination brings suit,
known as a private right of action, under Title II of the ADA. Title II, unlike Title III of the
ADA, provides for monetary damages. This brief analyzes the Court’s approach in
Cummings, including a critique of the Court’s interpretation of compensatory damages;
the potential application of its holdings to private rights of action under Title II of the
ADA; the immediate implications for people with disabilities; and policy
recommendations.
7
II. Emotional Distress Damages and the Cummings Decision
A. Analysis of the Decision
The Supreme Court’s decision and analysis in Cummings involving emotional distress
damages is based on its 2002 decision in Barnes v. Gorman,v where the Court similarly
limited the scope of remedies under Section 504. The Barnes Court held that
compensatory damages, but not punitive damages, were available under Section 504.
Compensatory damages, also called “actual damages,” under antidiscrimination laws
cover the loss a person incurred as a result of the another’s discriminatory conduct.
Some examples of compensatory damages are medical expenses, mental health
counseling expenses, lost wages and costs associated with hiring sign language
interpreters and other quantifiable out-of-pocket expenses reasonably incurred as a
result of the discriminatory conduct. The monetary amount awarded under
compensatory damages is intended to make good or replace the loss caused by the
discriminatory conduct. Emotional distress damages, while more difficult to quantify, are
also considered to be type of compensatory damages.
Punitive damages, also called “exemplary damages,” are awarded to punish or make an
example of a wrongdoer who has acted willfully, maliciously or fraudulently. Unlike
compensatory damages that are intended to cover actual loss, punitive damages are
intended to punish the wrongdoer for egregious behavior and to deter others from acting
in a similar manner. Where available, punitive damages are awarded in addition to
compensatory damages.vi
While both Barnes and Cummings involved Congressional authority under the Spending
Clause of the U.S. Constitution,vii Barnes went further and prohibited punitive damages
under Title II of the ADA. Congress enacted the ADA under authority through the
Fourteenth Amendment of the U.S. Constitution and not the Spending Clause.
Cummings, however, did not extend its holding to the ADA or other non-spending
clause legislation.
The Barnes Court however, on which the Cummings Court relied heavily, did extend its
holding regarding punitive damages under Section 504 to those available under Title II
of the ADA by looking to Title VI of the Civil Rights Act of 1964, as amendedviii:
The Rehabilitation Act, in turn, declares that the “remedies, procedures, and
rights set forth in Title VI of the Civil Rights Act of 1964 ... shall be available” for
violations of § 504… Thus, the remedies for violations of § 202 of the ADA and §
504 of the Rehabilitation Act are coextensive with the remedies available in a
private cause of action brought under Title VI of the Civil Rights Act of 1964, 42
U.S.C. § 2000d et seq., which prohibits racial discrimination in federally funded
programs and activities.ix
The Barnes Court analyzed Title VI of the Civil Rights Act and held that punitive
damages are not permitted for violations of that Title.x “When a federal-funds recipient
violates conditions of Spending Clause legislation, the wrong done is the failure to
8
provide what the contractual obligation requires; and that wrong is “made good” when
the recipient compensates the Federal Government or a third-party beneficiary (as in
this case) for the loss caused by that failure.”xi The Barnes Court noted again that
punitive damages are not compensatory, leaving in place the traditional view that
compensatory emotional distress damages remained available under Spending Clause
statutes like Section 504. Because it disallowed punitive damages under Title VI,
Barnes similarly barred such damages in suits brought under Title II of the ADA and
Section 504. The Barnes Court did not directly address other compensatory damages
but implied they are available under the RA.
Most immediately after the Cummings decision, people with disabilities who seek
damages for harm caused by recipients of federal financial assistance (FFA) for
intentional discrimination are limited to direct economic harm. They are now unable to
secure damages for the broad category of compensatory emotional distress damages,
that is, for non-economic harms. Emotional distress does not typically involve economic
injury. It more often manifests itself through sleeplessness, anxiety, stress, depression,
marital strain, humiliation, loss of self-esteem, excessive fatigue, nervous breakdown,
ulcers, gastrointestinal disorders, hair loss, or headaches. While damages for emotional
distress cannot be assumed because discrimination occurred, in the majority of
jurisdictions prior to Cummings, a plaintiff's testimony, standing alone, could support an
award of compensatory damages for emotional distress.
Emotional distress damages have traditionally been available for breaches of contract
since at least as early as 1902. For example, in Louisville & N. R. Co. v Hull (1902)
errors by railroad personnel delayed delivery of the corpse of Hull’s wife to a funeral by
one day. The court ruled that “[D]amages for mental suffering are allowed because
these are the natural result of the defendant's wrong, and in no other way can proper
compensation for it be had.”xii Emotional distress damages were considered to be the
only appropriate compensation for this kind of case, where there was no monetary loss
to the plaintiff, but the non-monetary harm suffered is undeniable. Because emotional
distress damages are now unavailable under Section 504 after Cummings, financial
incentives for potential plaintiffs to pursue litigation that can address intentional
discrimination are limited. Potential plaintiffs can sue only to prevent future
discriminatory practices, assuming the strict requirements for bringing suit in federal
court (“standing”) are met (see section E, below, “The Challenge of Securing Injunctive
Relief When Emotional Distress Damages are Not Available,” for a discussion of
standing issues). Such plaintiff’s now will not be personally compensated for the non-
economic harm they have suffered. Similarly, although attorneys’ fees remain available
under Section 504, the limitation on damages provides smaller financial incentives for
legal representation. This now results in a situation as exists under Title III of the ADA,
which bars discrimination in public accommodations. Title III allows for injunctive and
declaratory relief, but unlike Title II of the ADA, it does not permit recovery for economic
or non-economic damages for successful litigants challenging discriminatory acts or
practices.
In approximately half of U.S. states and the District of Columbia, however,

discrimination in public accommodations barred by Title III of the ADA is also barred
9
under state laws, and provide potential damages in successful cases (see also
Appendix A for state laws on emotional damages).xiii There are no similar options for
alternative state law filings for Section 504 claims which allege violations by entities
receiving FFA. After Cummings, many claims of intentional discrimination will go wholly
unaddressed for lack of meaningful damages available to potential plaintiffs.
Notably, places of religious worship (churches, synagogues), as well as other places or

programs controlled by religious entities (such as schools, hospitals, day care centers,
adoption agencies, thrift shops, shelters, and food banks) which are also considered
religious entities, are excluded from Title III of the ADA (which covers public
accommodations). However, places or programs controlled by religious entities, in
particular faith-based hospitals, that receive FFA are covered under Section 504.xiv
Unlike Title III of the ADA, there is no per se exclusion for religious entities under
Section 504.
It is also important to recognize the high bar for proving intentional discrimination, which
is required as a predicate to seeking monetary damages under Section 504 and Section
1557. Proving intentional discrimination requires a showing of “deliberate indifference.”xv
The United States Court of Appeals for the Eleventh Circuit summarized the deliberate
indifference standard by contrasting it with negligence:
Deliberate indifference requires knowledge that a federally protected right is likely

to be harmed and a failure to act upon that likelihood. Negligence, even if gross,
cannot constitute deliberate indifference. For conduct to be deliberately
indifferent, there must be both knowledge of likely harm and failure to act on the
part of a policymaker, that is, someone capable of making an “official decision”
on behalf of the organization. xvi
For example, “Circuit Courts have held that when a hospital maintains a policy to
accommodate deaf patients, the hospital staff knows about the policy and the
availability of auxiliary aids, and the hospital staff attempts to accommodate the deaf
patient, the hospital does not act with deliberate indifference to a patient's RA rights,
even if the requested accommodation is not quickly, or ever, supplied.”xvii “However, a
hospital that simply has a policy and auxiliary aids, however, but ignores deaf patients'
requests for accommodation or withholds access to auxiliary aids, acts with deliberate
indifference to a patient's rights under the [RA].”xviii
Another possible consequence of Cummings is that it may be extended to private rights

of action under Title II of the ADA following the prior holding in Barnes that “remedies for
violations of § 202 of the ADA and § 504 of the [RA] are coextensive with the remedies
available in a private cause of action brought under Title VI of the Civil Rights Act of
1964.”xix Justice Breyer noted in his dissent in Cummings, “[T]he Court's decision today
will affect the remedies available under all four of these statutes [including Section
1557], impacting victims of race, sex, disability, and age discrimination alike.”xx Because
the ADA is not Spending Clause legislation like Section 504, however, the contract law
analogy used to limit available remedies under Barnes and Cummings should not be
extended to Title II of the ADA.
10

Barnes held that the prohibition on punitive damages under Section 504 are
“coextensive” with remedies under Title VI of the Civil Rights Act and therefore under
Title II of the ADA. In other words, the prohibition on Section 504 can be applied to the
ADA. After Cummings, there is a potential that the prohibition on emotional distress
damages may be extended to Title II despite the irrelevance of the contract law analogy
employed in Cummings to legislation based on the Fourteenth Amendment such as the
ADA. The extension of Cummings’ ban on emotional distress damages to the ADA
could be supported by the text of the ADA itself, which specifies that remedies available
under the RA are the same for Title II of the ADA.xxi Absent legislation action, federal
court interpretations of Cummings in future cases will determine if such an extension to
Title II is made.
The decision in Cummings addressed the issue of emotional distress damages in the
context of lawsuits brought under Section 504 and Section 1557, but there is significant
concern that its reasoning in Cummings could also foreclose the availability of these
damages under other federal antidiscrimination statutes. Justice Breyer noted in his
dissent in Cummings:
The Rehabilitation Act (prohibiting disability discrimination) and the Affordable

Care Act (prohibiting race, sex, disability, and age discrimination) expressly
incorporate the rights and remedies available under Title VI. 29 U. S. C.
§794a(a)(2); 42 U. S. C. §18116(a). We have treated these statutes as providing
“coextensive” remedies. Barnes, 536 U. S., at 185. Thus, the Court’s decision
today will affect the remedies available under all four of these statutes, impacting
victims of race, sex, disability, and age discrimination alike..xxii
Therefore, Cummings raises the possibility that damages could be similarly limited
under these other civil rights statutes, with particular concern for Title VI of the Civil
Rights Act. At present, the statutory text in Section 504, Section 1557, Title VI, and Title
IX of the Education Act of 1972,xxiii do not specify the availability of compensatory relief
for emotional harm, for punitive damages, or any other relief apart from attorney’s fees.
Nor does the text of these statutes explicitly foreclose certain types of relief. The Age
Discrimination Act also lacks text addressing relief in a private suit. The Supreme
Court’s Barnes and Cummings decisions are efforts to fill in the blanks in civil rights
statutes because Section 504, Section 1557, the ADA and also Title VI are silent on the
scope of available damages for violations of those laws. This silence enables the Court
to utilize a strained contract law analogy that reduces people who endure intentional
discrimination to simply third-party beneficiaries of federal antidiscrimination laws, rather
than direct beneficiaries, for whom federal antidiscrimination protection is directed.
B. Damages for Breach of Contract
In Barnes, the Court was “filling in the blanks” in an antidiscrimination statute – Section
504 - that did not explicitly include guidance about the kinds of damages available. This
was also the goal in Cummings, where the statutes involved do not explicitly articulate
the types of damages available in lawsuits brought by private plaintiffs asserting
violations of those laws. To fill in the blanks in the statutes, the Court’s analysis in the
11
earlier Barnes case first determined what damages should be available under Spending
Clause statutes like Section 504 and looked to contract law for an analogous
situation.xxiv In effect, the Court treated federal fund disbursements under the Spending
Clause as a “contract” between the government and recipients of government funds by
which the recipient agrees to abide by the antidiscrimination provisions in return for the
receipt of the FFA. Some of the terms of this “contract” were unspecified in the
underlying legislation, in particular the remedies that should be made available to
people harmed by breaches of this “contract” between the government and recipients of
FFA. Instances of discrimination against people with disabilities under Section 504 are
“breaches” of this contract.
Applying the analogy from contract law, the Barnes Court determined that a recipient of
federal funds which violates the antidiscrimination provisions should pay certain
monetary damages to the person subject to the discrimination. Such person who is
protected against discrimination is known as an indirect or “third-party beneficiary” of the
Spending Clause “contract” between the federal government and the FFA recipient.
Treating Spending Clause statutes as analogous to a contract between the government
and the funded entity, the Court carried the contract law analogy a step further to
analyze what specific types of damages should be available to people or entities when
FFA recipients failed to follow the rules of their “contract,” that is, when they discriminate
against people with disabilities. This contract rules analysis adopted by the Court also
apply to other antidiscrimination statutes based on receipt of federal funds, notably Title
VI of the Civil Rights Act and Title IX of the Education Act, also enacted under Spending
Clause authority.
In Barnes, the issue at stake was whether punitive damages should be available under
Section 504, and in that case by extension to Title II of the ADA. Following previous
Supreme Court cases, the Barnes Court used the contract analogy to determine
whether the recipient of federal funds would have agreed to accept the funds if the
recipient had known it would be subject to punitive damages. The Court concluded that,
because punitive damages are not “compensatory” for a breach of a contract provision,
they are not “traditionally available” under breach of contract claims. Punitive damages
go beyond merely compensating contract recipients for damages incurred by a breach
of the contract, imposing additional penalties as punishment for the breach. The Court
claimed that, “Not only is it doubtful that funding recipients would have agreed to
exposure to such unorthodox and indeterminate liability; it is doubtful whether they
would even have accepted the funding if punitive damages liability was a required
condition.”xxv In the Barnes’ Court’s view, punitive damages are wholly unanticipated
penalties for a contract breach. “When a federal-funds recipient violates conditions of
Spending Clause legislation, the wrong done is the failure to provide what the
contractual obligation requires; and that wrong is “made good” when the recipient
compensates the Federal Government or a third-party beneficiary (as in this case) for
the loss caused by that failure.”xxvi
In Cummings, the Court stretched the Barnes contract law analogy. In Cummings, the
Court looked at what it considered to be the “usual contract remedies” in a breach of
contract case to determine whether emotional injuries could be available under the RA
12

and the ACA. This is a somewhat subtle shift from the Barnes “traditionally available”
contract remedies approach. The language “usual contract remedies” is not found in
Barnes, but the Cummings Court repeatedly cited to Barnes for support of the
proposition that an analysis of the “usual contract remedies” standard utilized in
Cummings is essentially synonymous with the term “traditionally available” used in
Barnes. It appears likely that the Cummings Court needed to use slightly different
language (“usual contract remedies”) to exclude emotional damages because the
Barnes “traditionally available” language would not necessarily have supported the
Cummings holding. In fact, emotional distress damages are “traditionally available”
compensatory damages in many non-commercial contract cases. The use of the term
“usual contract remedies” indicates that the Court is further limiting available damages
beyond the Barnes holding, which barred only punitive damages.
In Barnes, punitive damages were ruled as unavailable under the Spending Clause
because punitive damages are not considered to be compensatory damages, stating
that “punitive damages, unlike compensatory damages and injunction, are generally not
available for breach of contract.”xxvii But “emotional distress” damages are
compensatory damages of the sort that are available in certain breach of contract
cases, those in which “serious emotional disturbance was a particularly likely result.”xxviii
Cummings holds that, even though emotional damages are compensatory, they are not
the “usual” compensatory damages available under contract law.
The shift from “traditionally available” in Barnes to “usual contract remedies” in

Cummings allows the Cummings Court to both distinguish and expand the holding from
Barnes that compensatory damages are in fact “traditionally available” under Spending
Clause statutes while maintaining the contract analogy analysis. The Cummings Court
then had to argue that, although the earlier Barnes precedent established that
compensatory damages are traditionally available in contract cases, certain
compensatory damages (those awarded as compensation for emotional distress) are
not “usual.” This analysis complicates the contract analysis for people with disabilities
seeking to determine what redress is possible after experiencing intentional
discrimination.
C. Notice to Federal Funds Recipients of Potential Liability
The Supreme Court stated in Barnes, using the Spending Clause contract analogy, that
a remedy for a breach of the antidiscrimination provisions is an “appropriate remedy . . .
only if the funding recipient is on notice that by accepting federal funding, it exposes
itself to liability of that nature.”xxix
The Barnes Court noted:
We have acknowledged that compensatory damages alone “might well exceed a

recipient's level of federal funding,” [citations omitted]… ; punitive damages on
top of that could well be disastrous. Not only is it doubtful that funding recipients
would have agreed to exposure to such unorthodox and indeterminate liability; it
13

is doubtful whether they would even have accepted the funding if punitive
damages liability was a required condition.xxx
But the Cummings decision asserts that not all compensatory damages are “usual”:
Hornbook law states that emotional distress is generally not compensable in

contract. Under Barnes, the Court cannot treat federal funding recipients as
having consented to be subject to damages for emotional distress, and such
damages are accordingly not recoverable.”
But are emotional distress damages “usual contract remedies,” even if the Cummings
Court held they are not? The Court cites “the adverbs Barnes repeatedly used, requiring
that a remedy be “traditionally available,” “generally ... available,” or “normally available
for contract actions.”xxxi The Court finds these terms to be synonymous with “usual
contract remedies” and that emotional distress damages are not “usual” for breaches of
contract.
Emotional distress damages clearly are traditionally available in certain situations for
breaches of contract, but these matters are typically non-commercial contract cases. In
2007 the Eleventh Circuit in Sheely v. MRI Radiology Network, P.A., xxxii considering
emotional distress damages under Section 504 decision, cited to a 1957 Michigan state
supreme court decision in Stewart v. Rudnerxxxiii to distinguish between remedies in
commercial contract versus non-commercial contract cases:
It is true, in the ordinary commercial contract, damages are not recoverable for
disappointment, even amounting to alleged anguish, because of breach. Such
damages are ... too remote. But these are contracts entered into for the
accomplishment of a commercial purpose. Pecuniary interests are paramount ....
[I]t has long been settled that recovery therefor was not contemplated by the
parties as the natural and probable result of the breach. Yet not all contracts
are purely commercial in their nature. Some involve rights we cherish,
dignities we respect, emotions recognized by all as both sacred and
personal. In such cases the award of damages for mental distress and
suffering is a commonplace ....
The Michigan Stewart court addressed directly the then-developing trend toward
awarding emotional distress damages in contract cases:
We are therefore left to determine the question here presented according to

the rules of the common law applicable to actions for damages for breach of
contract. In such actions, can damages be recovered for mental suffering
resulting from a breach of the contract? …Although the law in this field is in a
state of marked transition and fluidity, is is [sic] [it] not too early to state that
there is a marked trend towards recovery. There was a day, as we noted
above, when the prevention of ‘private warfare’ fulfilled the highest function of
the court, when a visibly cracked skull was a sine qua non for recovery, but
the precedents of that era no longer control. We have come to realize, slowly
14

it is true, that the law protects interests of personality, as well as the physical
integrity of the person, and that emotional damage is just as real (and as
compensable) as physical damage.xxxiv
The Eleventh Circuit in Sheely goes on to cite numerous federal appellate and
district cases to support its holding that “As a matter of both common sense and
case law, emotional distress is a predictable, and thus foreseeable, consequence of
discrimination. Certainly, federal courts have long found that violations of the RA
and other antidiscrimination statutes frequently and palpably result in emotional
distress to the victims.”xxxv Of particular note, the Eleventh Circuit mentioned:
 Bogle v. McClure (11th Cir.):xxxvi affirming award of emotional damages for race
discrimination in violation of 42 U.S.C. § 1983, where plaintiffs testified to having
felt “embarrassed, humiliated, stunned, confused, angry, frightened, discouraged,
and betrayed,” with one testifying, “I can't begin to tell you what a toll it has taken
on me. To be an active and producing person and then to suddenly be just put on
the shelf and made to sit there through no purpose of my own or no doing of my
own, I could not help that I was hurt.”
 Stallworth v. Shuler (11th Cir.):xxxvii upholding award of emotional damages under

§§ 1981 and 1983 of the Civil Rights Act, noting that “[t]he injury in civil rights
cases may be intangible as here. It need not be financial or physical but may
include damages for humiliation and emotional distress.”
 Odom v. East Ave. Corp (N.Y. Supreme Court):xxxviii awarding emotional

damages to African–American hotel guests denied service at hotel restaurant
because of their race.
In the Fifth Circuit decision rejecting emotional damages in Cummings, the holding
affirmed by the Supreme Court’s subsequent review of that decision, the court rejected
the Sheely analysis. The Fifth Circuit argued that Sheely was premised on the
“foreseeability” of emotional distress damages, supported by the Restatement (Second)
of Contracts § 351 “that ‘[d]amages are not recoverable for loss that the party in breach
did not have reason to foresee as a probable result of the breach when the contract was
made.’”xxxix The Fifth Circuit in Cummings goes on to note:
[W]hether funding recipients can foresee a consequence of a particular “breach”

of a Spending Clause “contract” is not the same as whether they are “on notice”
that, when they accepted funding, they agreed to be liable for damages of this
kind. Barnes addressed the “on notice” issue, finding that federal funding
recipients couldn't “foresee” their liability for punitive damages for a breach of
Spending Clause “contract,” because such damages are generally unavailable
under contract law. Nowhere in Barnes does the Court condone Sheely’s strand
of “foreseeability.”
Yet Barnes stated that compensatory damages are available under Title IX and implied
they are available under the RA, arguably utilizing “Sheely’s strand of ‘foreseeability.’”xl
15

Following prior decisions, the Barnes Court stated that compensatory damages (in
contrast to punitive damages) were “foreseeable” to recipients of federal funds and they
were therefore “on notice” that they would be liable for compensatory damages, but not
punitive damages. In Cummings, both the Fifth Circuit and the Supreme Court assert
that recipients of federal funds lack “notice” of their liability for certain compensatory
damages (emotional distress) even though such damages are foreseeable outcomes of
their violations of the RA and on that basis are frequently awarded in other breach of
contract cases.xli
What is the meaningful distinction between an ability to “foresee that a patient might
suffer an emotional injury as a result of its actions” and an entity being “on notice” that it
will be held liable for such injuries? The Michigan Court in Stewart and the Eleventh
Circuit in Sheely understood that, in non-commercial contracts, “the award of damages
for mental distress and suffering is commonplace.”xlii But under the Supreme Court’s
Cummings holding, such damages are not considered to be among the “usual contract
remedies” and are not “commonplace.” Although the Fifth Circuit rejected the Sheely
holding in Cummings, the distinction between recognizing that there could be
foreseeable damages caused by a breach of an agreement to comply with
antidiscrimination laws and denying that the entity was “on notice” that such damages
would be awarded is strained from an equity perspective. The holding that a recipient of
FFA commits itself to nondiscriminatory practices as a condition of receiving federal
funds would later claim it was in fact not “on notice” it could be held liable for damages
for violation of federal antidiscrimination laws is contradictory on its face. This is
particularly true for institutional enrolleesxliii of the Medicare program who, as a condition
of Medicare Part A enrollment and continued participation in the Medicare program, are
required to obtain a civil rights clearance from the U.S. Department of Health and
Human Services Office of Civil Rights by submitting an assurance of compliance with
civil rights requirements, among them Section 504 and Section 1557.xliv
D. State Courts Commonly Allow for Emotional Distress Damages in Contract

Cases
The Supreme Court in Cummings asserted that recovery for emotional distress
damages is not among the “usual contract remedies” for breach of contract. Most
contract disputes are litigated in state courts, which is where the Cummings Court
presumably looked to determine which contract remedies are “usual.”xlv There has been
a split among state courts regarding whether compensatory damages for reasonably
foreseeable mental anguish or emotional distress are recoverable for breach of
contract, but certainly emotional distress remedies are available in a large number of
states.xlvi The American Law Reports (ALR) compendium includes two categories of
cases under separate “Rules”:
Section § 3 “Rule that compensatory damages for mental anguish or emotional

distress are generally not recoverable for breach of contract” and
Section § 4 “Rule that compensatory damages for reasonably foreseeable mental

anguish or emotional distress are recoverable for breach of contract.” xlvii
16

There are numerous examples, some dating back more than a century, supporting
Section 4 in a wide range of contract scenarios:
 In Louisville & N. R. Co. v Hull (1902),xlviii although overturning on other grounds,

the court issued a judgment for the plaintiff widower who sued the defendant
railroad for the negligent breach of a contract to ship his dead wife's corpse,
indicating that damages for mental anguish may be recovered for the breach of a
contract where such damages naturally resulted from a wrongful act and were
fairly within the reasonable contemplation of the contracting parties.
 In Kismarton v. William Bailey Construction (2001), the Ohio Supreme Court held
that emotional distress damages are even available in a building contract:
Though proof of emotional distress damages in these cases will be

difficult, we are convinced that wronged parties are constitutionally entitled
to an opportunity to recover for emotional distress damages.xlix
 In Matherne v. Barnum (2012),l upholding application of a Louisiana Code

statute, Damages for nonpecuniary loss:
Damages for nonpecuniary loss may be recovered when the contract,

because of its nature, is intended to gratify a nonpecuniary interest and,
because of the circumstances surrounding the formation or the
nonperformance of the contract, the obligor knew, or should have known,
that his failure to perform would cause that kind of loss. Regardless of the
nature of the contract, these damages may be recovered also when the
obligor intended, through his failure, to aggrieve the feelings of the
obligee.li
Cummings does not implicate state laws regarding contract interpretation in the context
of emotional distress damages or state anti-discrimination statutes. The Supreme Court
however, seems to have disregarded that breach of contract can result in emotional
distress damages.
E. The Challenge of Securing Injunctive Relief When Emotional Distress

Damages are Not Available
In the wake of the Cummings decision, many potential plaintiffs may pursue injunctive
relief as a means to challenge discriminatory practices under Section 504 or Section
1557, even without the prospect of securing money damages. Unfortunately, these
potential plaintiffs will face significant challenges in establishing standing to file and
maintain a suit under the standard established under Lujan v. Defenders of Wildlifelii:
First, the plaintiff must have suffered an “injury in fact”— an invasion of a legally
protected interest which is (a) concrete and particularized, ... and (b) “actual or
imminent, not ‘conjectural’ or ‘hypothetical’... Second, there must be a causal
connection between the injury and the conduct complained of ... Third, it must be
17

“likely,” as opposed to merely “speculative,” that the injury will be “redressed by a
favorable decision.”
Plaintiffs must establish a likelihood of future harm from a discriminatory practice --

beyond experiencing prior discrimination -- to establish standing in federal court under
Article III of the U.S. Constitution for injunctive relief purposes. This issue arises
frequently in the ADA Title III context, where damages are unavailable but where people
with disabilities often seek prospective injunctive relief in the face of inaccessible
facilities or discriminatory practices. In cases similar to Cummings that involved access
to interpreting services in a medical setting, plaintiffs unsuccessfully sought injunctive
relief under Title III of the ADA:
 A Deaf plaintiff did not have standing to seek injunctive relief against a hospital,
that failed to provide effective communication to plaintiff, who arrived in
emergency room because of husband's fatal cardiac arrest.liii
 A Deaf plaintiff who sought injunctive relief after she had visited a hospital where
no sign language interpretation was provided was denied relief: “A plaintiff's
intention to return to defendant's place of public accommodation ‘some day’ ...
without any description of concrete plans, or indeed even any specification of
when the some day will be - do not support a finding of the requisite actual or
imminent injury.” (citing Lujan, 504 U.S. at 564 [112 S. Ct. 2130]) The court
further noted, “[T]he substantive standards for determining liability under the
Rehabilitation Act and the ADA are the same.”liv
People with other kinds of disabilities face the same dilemma when seeking prospective
injunctive relief after experiencing intentional discrimination. For example, a person with
a serious mental illness who is turned away from a medical care facility due to
perceived generalized concerns over potential behavioral issues is unlikely to return to
that facility. Similarly, a person with an intellectual disability is unlikely to return to a
facility where she has been demeaned or mistreated by medical staff. But even a history
of discrimination in a particular location or setting will not confer a plaintiff standing for
injunctive relief under either Section 504 or Title III of the ADA to challenge likely
discrimination in the future without proof of the likelihood the person will return to the
same location under similar circumstances. This is a challenging standard for most
plaintiffs seeking to prevent future acts of discrimination.
18

III. Impact of the Cummings Decision on People with Disabilities
Through the Cummings decision the Court removed an important tool available to
remedy and ultimately deter discrimination against people with disabilities by entities
which receive federal funds. The decision sets-up differing standards based on state-
law, which will create additional obstacles to addressing systemic and intentional
disability-based discrimination by entities only covered under Section 504 or Section
1557, and will ultimately reduce the impact of these laws in reducing incidents of
discrimination based on disability.
A. Immediate Impact
Following the Cummings decision, disability advocates have learned of cases in which
attorneys declined representation since potential plaintiffs lacked damages other than
emotional distress or have had to dismiss cases where emotional distress damages
were the sole remedy sought. As with Cummings itself, the decision will have a
particularly negative impact on deaf persons, especially in interaction with law
enforcement. In one case a deaf mother was having problems with her son was
arrested when police arrived without an American Sign Language interpreter to
communicate with her. The mother mistakenly thought the police were there to assist
her with the son when in fact they were investigating possible abuse. An attorney
declined to represent the woman after Cummings because there were no other
damages. Similarly, a deaf man was arrested and remained in jail for 5 days without
communication and without police informing him they had an interpreting service
available. Again, an attorney declined representation since the lack of communication
caused emotional distress but no other damages.
Other examples of past Section 504 claims involving emotional distress claims that
would likely now be foreclosed by the Cummings decision include several Colorado
cases involving deaf individuals encounters with law enforcement that were settled with
damages awards for the emotional distress caused by the discriminatory actions of
police in failing to provide interpreters. In Ulibarri v. City and County of Denver,lv two
clients who received a damages settlement that might be imperiled by the Cummings
decision:
 Plaintiff Sarah Burke was Deaf mother with a very minor warrant, cooking dinner
at home with kids. The police showed up to enforce the warrant. Ms. Burke
asked for a sign language interpreter. Even though there was no urgency,
resistance, or danger, the police refused and asked her 8-year-old child to
interpret. They then arrested Ms. Burke and took her away cuffed behind her
back. One of the things she was trying to communicate was that she needed
medication for diabetes, which she was ultimately not able to bring with her.
 Plaintiff Roger Krebs was a Deaf man traveling by bus through Denver on his
way to his home in Utah. He was arrested as a result of an altercation in the bus
stop and denied an interpreter during his arraignment.
19

Defendants in similar cases, where economic compensatory damages are small, will
now likely not settle because of the limited potential damages available, which will not
include recovery for emotional distress.
Other cases from Colorado involve failures to provide interpreters by hospitals and
rehabilitation and behavioral health facilities:
 Client in a confidential case was a Deaf man whose daughter was in a traumatic
car accident. From before he arrived at the hospital, he began to request a sign
language interpreter, but the hospital would not provide one, excluding him from
discussions concerning his daughter’s care. He received a confidential damages
settlement.
 Client in a confidential case was a Deaf woman who spent two months in a
rehabilitation facility without any access to a sign language interpreter. Her reams
of written notes reveal extensive and frustrating miscommunications concerning
everything from physical therapy and medication to meal planning and
recreation. She received a confidential damages settlement.
 Client in a confidential case was a Deaf woman admitted to an inpatient

behavioral health facility and denied access to a sign language interpreter for
most of her nine-day stay. She had interpreters for approximately one hour each
day, which was not timed to include such activities as meetings with her
psychiatrist, group therapy, and occupational therapy. She received a
confidential damages settlement.
In Arkansas, in a recently resolved case, Disability Rights Arkansas, the state’s

Protection and Advocacy agency and private counsel represented a secondary school-
aged individual who attended a specialty public school. Prior to his enrollment, he
informed the school of his significant allergies to certain foods. In response, the school
assured him that they would adhere to his specific dietary needs and offer alternatives
to foods that caused him to experience an anaphylactic reaction.
Within days of being on campus, he was served a meal that contained the specific
allergens he cannot have. As a result, he was sent by ambulance to the hospital for
treatment due to his anaphylactic reaction. Over the course of a year, the individual had
to be rushed to the hospital three more times, with each instance resulting in a response
from the school promising it would not happen again. The student constantly
experienced a nagging fear that everything he ate, three meals per day, would cause
him to be hospitalized. His fears were justified because it happened repeatedly. His
emotional distress was not truly quantitative, he did not experience increased costs for
mental health services, but the school’s actions and inactions caused him emotional
harm. The case ultimately settled for out-of-pocket damages and policy changes the
regarding school’s food preparation practices to accommodate students with food
allergies.
20

The Cummings decision was issued while this case was in litigation, leaving it likely an
Arkansas jury would only be able to consider reimbursing out-of-pocket medical
expenses and not damages from the emotional distress he experienced from reliance
on school staff who repeatedly served him foods that caused anaphylactic reactions.
The case ultimately settled for out-of-pocket damages and policy changes regarding the
school’s food preparation practices to accommodate students with food allergies.
Because the client sustained significant medical bills there was still a viable
compensatory damages claim but the lack of the potential emotional distress damage
award significantly reduces the ability of the case to effect systemic change at the
school. Fortunately, prior to the Supreme Court’s Cummings decision, the Disability
Rights Arkansas and private co-counsel were able to secure a strong expert analysis
and set of recommendations, paid for by the school, to ensure it adheres to best
practices regarding food preparation and allergies.
B. Remedies Remaining for Emotional Distress Damages under State Law
As detailed in an NCD review of state human and civil rights laws on compensatory
damages for emotional distress (see Appendix A), state antidiscrimination laws for non-
employment disability claims include a patchwork of potential remedies. Twenty-five
states provide for a potential emotional distress damages claims, while eighteen do not
provide for such damages. Nine states have somewhat ambiguous statutes. It is notable
that the states that do provide for potential emotional distress damages include some of
the most populous states, California, New York and Florida, among them.
State antidiscrimination laws can provide important remedies for people who experience
discrimination trying to secure medical care or access to other public accommodations.
These laws can also potentially serve to encourage legal challenges to discriminatory
practices by providing real incentives for potential plaintiffs, and equally important,
potential deterrence for covered entities. Unfortunately, even antidiscrimination laws in
states that provide for emotional distress damages cannot effectively address the gap in
such damages created under the Cummings decision. Not only are these state statutes
limited to specific states, but they will not be applicable to securing remedies under
federal antidiscrimination laws.
21

IV. Recommendations
1. Congress should enact legislation to address Cummings Decision
Congress should enact and the President should sign legislation which restores
emotional distress damages as a remedy under Section 504, Section 1557 and other
civil rights statutes enacted under the Spending Clause, and which instructs the federal
courts not to use the contract law analogy when analyzing remedies for discrimination
under any federal anti-discrimination statute as the most effective way to address the
Cummings decision. The legislation should ensure that recipients of federal financial
assistance are put on notice of all potential damages they may be subject to for violation
of federal antidiscrimination laws against persons with disabilities and others.
The Court’s contract law analogy in these cases relies on subjective assumptions about
whether recipients would have agreed to accept federal funds had they known they
would be potentially liable for punitive damages and emotional distress compensatory
damages to victims of intentional discrimination. In Barnes, the Court claimed it is
“doubtful whether they [federal funds recipients] would have agreed to exposure to such
unorthodox and indeterminate liability.”lvi In Cummings, the Court asserts that recipients
“lacked notice” of their liability for emotional distress. The emphasis in Cummings and
Barnes is on fairness for funds recipients rather than for people subjected to
discrimination, who presumed that they would not be discriminated against by such
entities. They also believed that if discrimination occurred they would be appropriately
compensated for violations of their civil rights. The simplest way to reverse these
decisions would be to legislatively fill in the blanks that the Court took upon itself to
complete.
The Cummings Court cites Arlington Cent. School Dist. Bd. of Educ. v. Murphy,lvii a
2006 Supreme Court decision on the issue of state liability for expert fees in Individuals
with Disabilities Education Act (IDEA) cases, as precedent for its analysis of the “clear
notice” notice requirement in Spending Clause cases. In Arlington, the Court held that
“Congress has broad power to set the terms on which it disburses federal money to the
States … but when Congress attaches conditions to a State's acceptance of federal
funds, the conditions must be set out ‘unambiguously.’”lviii Congress failed to specify
whether damages are available at all in each of these statutes, much less the types of
remedies that can be awarded for violations of the statutes. This has left the Supreme
Court in the position of filling in the blanks, leading to negative results for plaintiffs under
Barnes, Cummings and Arlington. As Justice Kavanaugh noted in his concurring opinion
in Cummings, “Congress, not this Court, creates new causes of action.”lix
Legislative reforms should address the issue of available remedies in all four of these
statutes (Section 504, Section 1557, Title VI, and Title IX) in one piece of legislation.
That legislation should articulate the nature of available remedies in unambiguous
terms. Arguably, an amendment to Title VI of the Civil Rights Act alone would alter the
availability of remedies in the other three statutes, given that their remedies “expressly
incorporate the rights and remedies available under Title VI.”lx
22

2. Federal agencies should include notice in grant awards that recipients are
subject to specific damages for violations of Section 504
The Cummings decision highlights the importance the Supreme Court places on notice
to recipients when interpreting federal antidiscrimination statutes enacted pursuant to
Congressional Spending Clause legislation. The Court has frequently emphasized that
a recipient of federal funds must be on notice about the potential liability the recipient
faces by accepting federal aid.lxi The Cummings Court emphasized that the recipients
lacked “clear notice” they could be subject to private right of action seeking emotional
distress damages.
In order to provide sufficient notice to recipients of federal financial assistance about

potential liability, all federal agencies should clearly state in all applications for federal
funds and notice of awards, and by other means appropriate, that recipients are subject
to specific damages for a violation of Section 504, Section 1557, Title VI or Title IX.
23

Appendix A: 2022 Review of State Human and Civil Rights Laws:
Compensatory Damages (Emotional Distress)
Damages Terminology and Variance by State
NCD reviewed state human and civil rights laws to determine if they had (1) a public
accommodation section, and, if so, (2) whether disability was a protected class, and (3)
whether Emotional Distress damages are allowed for prevailing complainants in
administrative actions or plaintiffs in a civil action.
Emotional Distress damages are a type of Compensatory damages. Compensatory

damages are categorized as either special or general. Special damages often have a
firm dollar figure attached to them. Medical bills, lost income due to time off work,
property loss and damage, and out-of-pocket expenses related to the incident. General
damages include items like emotional distress, pain and suffering, mental illness, and
anxiety that are related to the injury in question.lxii Actual damages are synonymous with
Compensatory damages.lxiii
State laws and regulations vary in the terms they use for describing damages.
research, no state law used the terms “special” or “general” compensatory damages,
only to “Compensatory” and “Actual.”
I. States and Territories that Allow Compensatory/Actual Damages for Disability

Discrimination by Public Accommodations
Arkansas
Any person who is injured by an intentional act of discrimination in violation of
subdivisions (a)(2)-(5)(includes public accommodations) of this section shall have a civil
action in a court of competent jurisdiction to enjoin further violations, to recover
compensatory and punitive damages, and, in the discretion of the court, to recover the
cost of litigation and a reasonable attorney's fee. AR Code 16-123-107(b).
https://law.justia.com/codes/arkansas/2015/title-16/subtitle-7/chapter-123/subchapter-
1/section-16-123-107/
California
CA Civ Code §52(a): Whoever denies, aids or incites a denial, or makes any
discrimination or distinction contrary to Section 51, 51.5, or 51.6, is liable for each and
every offense for the actual damages, and any amount that may be determined by a
jury, or a court sitting without a jury, up to a maximum of three times the amount of
actual damage but in no case less than four thousand dollars ($4,000), and any
24
attorney’s fees that may be determined by the court in addition thereto, suffered by any
person denied the rights provided in Section 51, 51.5, or 51.6.
(h) For the purposes of this section, “actual damages” means special and general
damages. This subdivision is declaratory of existing law.
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=52.&no
deTreePath=6.2&lawCode=CIV
Delaware
No private action allowed under public accommodations law. State human relations
procedure.
If the panel determines that a violation of §4504 of this title has occurred, it shall issue
an order stating its findings of fact and conclusions of law and containing such relief as
may be appropriate, including actual damages suffered by the aggrieved person
“including damages caused by humiliation and embarrassment,” costs, expenses,
reasonable attorneys’ fees and injunctive or other equitable relief. Title 6 §4508(h).
https://delcode.delaware.gov/title6/c045/
District of Columbia
The payment of compensatory damages to the person aggrieved by such practice.
§ 2–1403.13(a)(1)(D)
https://code.dccouncil.us/us/dc/council/code/titles/2/chapters/14/units/A/subchapters/II/p
arts/D/
Florida
In any civil action brought under this section, the court may issue an order prohibiting
the discriminatory practice and providing affirmative relief from the effects of the
practice, including back pay. The court may also award compensatory damages,
including, but not limited to, damages for mental anguish, loss of dignity, and any other
intangible injuries, and punitive damages. Title XLIV 760.11(5)
https://www.flsenate.gov/Laws/Statutes/2019/0760.11
Idaho
In a civil action filed by the commission or filed directly by the person alleging unlawful
discrimination, if the court finds that unlawful discrimination has occurred, its judgment
25

shall specify an appropriate remedy or remedies therefor. Such remedies may include,
but are not limited to…(c) An order for actual damages …67-5908(3)
https://legislature.idaho.gov/wp-
content/uploads/statutesrules/idstat/Title67/T67CH59.pdf
Indiana
The state code allows state human rights commission and state courts to award actual
damages for discriminatory treatment by public accommodations, but limiting them in
employment discrimination complaints.
The commission may restore complainant's losses incurred as a result of discriminatory
treatment, as the commission may deem necessary to assure justice… IC 22-9-1-6
(k)(A).
[The commission may] order payment of actual damages, except that damages to be
paid as a result of discriminatory practices relating to employment shall be limited to lost
wages, salaries, commissions, or fringe benefits. IC 22-9-1-12.1 (c)(8).
A court may provide the same remedies to a prevailing plaintiff as the state human
rights commission. IC 22-9-1-17(b).
https://www.in.gov/icrc/files/ch1.pdf
Kansas
No right to civil action found for public accommodations discrimination. Human rights
commission awards damages in hearing process.
If the presiding officer finds a respondent has engaged in or is engaging in any
…unlawful discriminatory practice as defined in this act, the presiding officer shall
render an order … Such order may also include an award of damages for pain, suffering
and humiliation which are incidental to the act of discrimination, except that an award for
such pain, suffering and humiliation shall in no event exceed the sum of $2,000. KS 44-
1005(k).
http://www.kslegislature.org/li_2018/b2017_18/statute/044_000_0000_chapter/044_010
_0000_article/044_010_0005_section/044_010_0005_k/
Maine
Compensatory damages between 50k and 500k depending on size of public
accommodation. Can be ordered by human rights commission or by a court after filing
with human rights commission.
26
https://www.mainelegislature.org/legis/statutes/5/title5sec4613.html
https://www.mainelegislature.org/legis/statutes/5/title5sec4622.html
Maryland
Sec. 14.03.01.13 (E) Remedies. If the court determines that the respondent has
engaged in a discriminatory practice, the court may provide remedies as specified in
State Government Article, §20-1009(b), Annotated Code of Maryland.
§20-1009(b) allows for compensatory damages between 50k and 300k.
http://mdrules.elaws.us/comar/14.03.01.13
https://codes.findlaw.com/md/state-government/md-code-state-govt-sect-20-1009.html
Michigan
No private right of action found or in commission procedure, but emotional distress
damages were available in an administrative hearing. https://www.michigan.gov/mdcr/-
/media/Project/Websites/mdcr/mcrc/decisions/bercheni.pdf?rev=ba83c4d0d29f4ea7b52f
ecb8aa8ca74c&hash=D239CCA8134210631604DF17E7E685BE
Minnesota
MN allows state human rights commission to award actual damages, specific to
emotional distress.
In all cases where the administrative law judge finds that the respondent has engaged
in an unfair discriminatory practice, the administrative law judge shall order the
respondent to pay an aggrieved party, who has suffered discrimination, compensatory
damages in an amount up to three times the actual damages sustained. In all cases, the
administrative law judge may also order the respondent to pay an aggrieved party, who
has suffered discrimination, damages for mental anguish or suffering, in addition to
punitive damages in an amount not more than $8,500. §363A.29. Subd. 4.
https://law.justia.com/codes/minnesota/2006/363-363A/363A/363A_11.html
Missouri
The Missouri Human Rights Act allows a court to award actual damages, including
mental anguish (emotional distress) but caps them based on size of business.
27
213.111. Right to civil action, when — relief available — costs and attorney's fees,
awarded when — right to trial by jury — maximum damages — burden of proof,
employment-related civil actions.
2. The court may grant as relief, as it deems appropriate, any permanent or temporary
injunction, temporary restraining order, or other order, and may award to the plaintiff
actual and punitive damages, and may award court costs and reasonable attorney fees
to the prevailing party, other than a state agency or commission or a local commission;
except that, a prevailing respondent may be awarded reasonable attorney fees only
upon a showing that the case was without foundation.
4. The sum of the amount of actual damages, including damages for future pecuniary
losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of
life, and other nonpecuniary losses, and punitive damages awarded under this section
shall not exceed for each complaining party….
https://revisor.mo.gov/main/OneSection.aspx?section=213.111&bid=34599&hl=
New Hampshire
New Hampshire awards compensatory damages in both administrative and judicial
venues.
Compensatory damages are available in administrative hearing. §354-A:21(d)
…A court in cases so removed may award all damages and relief which could have
been awarded by the commission, except that in lieu of an administrative fine,
enhanced compensatory damages may be awarded when the court finds the
respondent's discriminatory conduct to have been taken with willful or reckless
disregard of the charging party's rights under this chapter. §354-A:21-a(I).
http://gencourt.state.nh.us/rsa/html/XXXI/354-A/354-A-mrg.htm
New Jersey
Civil action remedies include compensatory damages, damages for pain & humiliation
https://www.njoag.gov/about/divisions-and-offices/division-on-civil-rights-home/division-
on-civil-rights-file-a-complaint/
New Mexico
The commission may require the respondent to pay actual damages to the complainant
and to pay reasonable attorneys' fees. NM Code §28-1-11(E).
https://law.justia.com/codes/new-mexico/2021/chapter-28/article-1/section-28-1-11/
28
New York
If, upon all the evidence at the hearing, the commissioner shall find that a respondent
has engaged in any unlawful discriminatory practice as defined in this article (public
accommodations included), the commissioner shall state findings of fact and shall issue
and cause to be served on such respondent an order…including such of the following
provisions as in the judgment of the division will effectuate the purposes of this article:
… (iii) awarding of compensatory damages to the person aggrieved by such
practice…NYCL EXC §297(4)(c).
https://www.nysenate.gov/legislation/laws/EXC/297
Oklahoma
In an action pursuant to Section 1101 et seq. of this title, if the court finds that a
discriminatory housing practice has occurred or is about to occur, the court may award
to the plaintiff:
1. Actual and punitive damages…O.S. §1503.3(1).
https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=73482
Rhode Island
Civil liability. (a) Any person with a disability who is the victim of discrimination
prohibited by this chapter may bring an action in the superior court against the person or
entity causing the discrimination for equitable relief, compensatory and/or punitive
damages or for any other relief that the court deems appropriate. § R.I. Gen. Laws § 42-
87-4 (a).
http://webserver.rilin.state.ri.us/Statutes/TITLE42/42-87/42-87-4.htm
South Dakota
Right to proceed by civil action in lieu of hearing--Forms of relief available.
In a civil action, if the court or jury finds that an unfair or discriminatory practice has
occurred, it may award the charging party compensatory damages. §20-13-35.1.
https://sdlegislature.gov/Statutes/Codified_Laws/2045748
29

Vermont
The Commission may enforce conciliation agreements and prohibitions against
discrimination by bringing an action in the name of the Commission seeking any of the
following: Compensatory and punitive damages on behalf of an aggrieved individual or
class of individuals similarly situated. 9 V.S.A. § 4553(a)(6)(A)(iii).
https://legislature.vermont.gov/statutes/section/09/141/04553
Virgin Islands
The Virgin Islands Civil Rights Act (VICRA) allows compensatory damages (emotional
distress):
§64 (15) In addition to other remedies, any person who has been discriminated against
as defined in this section may bring an action for compensatory and punitive damages
in any court of competent jurisdiction. The court in such action shall award to the plaintiff
reasonable attorney's fees and costs of the action, in addition to any judgment in favor
of the plaintiff. prohibits discrimination by public accommodations on the basis of race,
creed, color, or national origin. not disability.
Washington
Any person deeming himself or herself injured by any act in violation of this chapter
9includes public accommodations) shall have a civil action in a court of competent
jurisdiction to enjoin further violations, or to recover the actual damages sustained by
the person…. RCW 49.60.030(2).
https://app.leg.wa.gov/RCW/default.aspx?cite=49.60.030
West Virginia
The Human Rights Commission may also award incidental damages “as compensation
for humiliation, embarrassment, emotional and mental distress, and loss of personal
dignity, without proof of monetary loss.
https://hrc.wv.gov/about/Documents/Investigative%20Procedure.pdf
Wisconsin
106.52(4)(e)Civil actions.
1. A person, including the state, alleging a violation of sub. (3) (public
accommodations) may bring a civil action for appropriate injunctive relief, for damages
30
including punitive damages and, in the case of a prevailing plaintiff, for court costs and
reasonable attorney fees.
II. States and Territories that Might Allow Compensatory Damages (emotional
distress) for Disability Discrimination by Public Accommodations
Connecticut
The court may grant a complainant in an action brought in accordance with section 46a-
100 such legal and equitable relief which it deems appropriate including, but not limited
to, temporary or permanent injunctive relief, attorney’s fees and court costs. CT Gen
Stat § 46a-104.
https://law.justia.com/codes/connecticut/2012/title-46a/chapter-814c/
Illinois
(775 ILCS 5/10-102)(C) Relief which may be granted.
(1) In a civil action under subsection (A) if the court finds that a civil rights violation
has occurred or is about to occur, the court may award to the plaintiff actual and
punitive damages
https://ilga.gov/legislation/ilcs/ilcs4.asp?DocName=077500050HArt%2E+10&ActID=226
6&ChapterID=64&SeqStart=9200000&SeqEnd=-1
Iowa
A court may award a prevailing plaintiff damages that “shall include but are not limited to
actual damages, court costs and reasonable attorney fees.” Iowa code §216.15(9)(a)(8)
(Same as what a human rights commission can order: See,§216.16(6)) Does not
specify the type (general or specific).
https://www.legis.iowa.gov/docs/code/216.15.pdf
Massachusetts
Not specific on type of damages
Any person claiming to be aggrieved by a practice made unlawful under this chapter or
under chapter one hundred and fifty-one C, or by any other unlawful practice within the
jurisdiction of the commission, may, at the expiration of ninety days after the filing of a
complaint with the commission, or sooner if a commissioner assents in writing, but not
31
later than three years after the alleged unlawful practice occurred, bring a civil action for
damages or injunctive relief
https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXI/Chapter151B/Section9
Montana
Human Rights Bureau rule does not mention damages or relief other than conciliation.
https://rules.mt.gov/gateway/ChapterHome.asp?Chapter=24.8
MT Human Rights Act allows hearings officer to issue order rectifying any harm,
financial or otherwise, but no specific reference to damages allowed.
49-2-506. Procedure upon decision finding discrimination. (1) If the hearings officer
finds that a party against whom a complaint was filed has engaged in the discriminatory
practice alleged in the complaint, the department shall order the party to refrain from
engaging in the discriminatory conduct. The order may:…(b) require any reasonable
measure to correct the discriminatory practice and to rectify any harm, pecuniary or
otherwise, to the person discriminated against;
Ohio
§ 4112.99. Civil remedies for violation. Whoever violates this chapter is subject to a civil
action for damages, injunctive relief, or any other appropriate relief.
https://law.justia.com/codes/ohio/2006/orc/jd_411299-ddf7.html
Oregon
Law contains numerous sections that are complex. Oregon’s nondiscrimination law
allows for recovery of injunctive and other equitable damages, as well as compensatory
damages and punitive damages for disability discrimination by places of public
accommodation and the state government, but not against other governmental
agencies.
ORS 659A.142
(4) It is an unlawful practice for any place of public accommodation, resort or
amusement as defined in ORS 659A.400, or any person acting on behalf of such place,
to make any distinction, discrimination or restriction because a customer or patron is an
individual with a disability.
(5)(a) It is an unlawful practice for state government to exclude an individual from
participation in or deny an individual the benefits of the services, programs or activities
of state government or to make any distinction, discrimination or restriction because the
32
individual has a disability.
(b) Paragraph (a) of this subsection is intended to ensure equal access to available
services, programs and activities of state government.
(c) Paragraph (a) of this subsection is not intended to:
(A) Create an independent entitlement to any service, program or activity of state
government; or
(B) Require state government to take any action that state government can demonstrate
would result in a fundamental alteration in the nature of a service, program or activity of
state government or would result in undue financial or administrative burdens on state
government."
ORS 659A.885.
(1) Any person claiming to be aggrieved by an unlawful practice specified in subsection
(2) of this section may file a civil action in circuit court. In any action under this
subsection, the court may order injunctive relief and any other equitable relief that may
be appropriate, including but not limited to reinstatement or the hiring of employees with
or without back pay. A court may order back pay in an action under this subsection only
for the two-year period immediately preceding the filing of a complaint under ORS
659A.820 with the Commissioner of the Bureau of Labor and Industries, or if a
complaint was not filed before the action was commenced, the two-year period
immediately preceding the filing of the action. In any action under this subsection, the
court may allow the prevailing party costs and reasonable attorney fees at trial and on
appeal. Except as provided in subsection (3) of this section:
(a) The judge shall determine the facts in an action under this subsection; and
(b) Upon any appeal of a judgment in an action under this subsection, the appellate
court shall review the judgment pursuant to the standard established by ORS 19.415
(3).
(2) An action may be brought under subsection (1) of this section alleging a violation of
(a) . . . 659A.103 to 659A.145 . . . .
(3) In any action under subsection (1) of this section alleging a violation of ORS . . .
659A.103:
(a) The court may award, in addition to the relief authorized under subsection (1) of this
section, compensatory damages or $200, whichever is greater, and punitive damages;
Texas
Subject to Section 121.0041, if applicable, the person with a disability deprived of his or
her civil liberties may maintain an action for damages in a court of competent
jurisdiction, and there is a conclusive presumption of damages in the amount of at least
$300 to the person with a disability. Sec. 121.004(b)
https://statutes.capitol.texas.gov/Docs/HR/htm/HR.121.htm#121.004
33
Utah
Any person who is denied the rights provided for in Section 13-7-3 shall have a civil
action for damages and any other remedy available in law or equity against any person
who denies him the rights provided for in Section 13-7-3 or who aids, incites or
conspires to bring about such denial. Section 13-7-4(3).
https://le.utah.gov/xcode/Title13/Chapter7/13-7-S4.html
III. States and Territories that Do Not Allow Compensatory Damages (emotional
distress) for Disability Discrimination by Public Accommodations
Alabama
Follows federal laws, no state complaint process for disability discrimination in public
accommodations.
https://dhr.alabama.gov/directory/equal-employment-civil-rights/
Alaska
No damages except for reasonable expenses or reasonable attorney’s fees.
http://www.legis.state.ak.us/basis/folioproxy.asp?url=http://wwwjnu01.legis.state.ak.us/c
gi-bin/folioisa.dll/stattx11/query=*/doc/{t9368}?
Arizona
Disability not a protected class under state civil rights law on public accommodations.
Complainant would have to file federally.
https://www.azleg.gov/viewdocument/?docName=https://www.azleg.gov/ars/41/01442.h
tm
Colorado
CO Rev Stat § 24-34-802(20(a)(II): Actual monetary damages (economic)
https://law.justia.com/codes/colorado/2018/title-24/principal-departments/article-34/part-
8/section-24-34-802/
Georgia
Georgia has no public accommodation section in its civil rights law.
34

Hawaii
Any person who is injured by an unlawful discriminatory practice, other than an unlawful
discriminatory practice under part II of this chapter, may: (1) Sue for damages
sustained, and, if the judgment is for the plaintiff, the plaintiff shall be awarded a sum
not less than $1,000 or threefold damages by the plaintiff sustained, whichever sum is
the greater, and reasonable attorneys' fees together with the costs of suit. 489-7.5(a)(1)
Kentucky
KRS 344.450 Civil remedies for injunction and damages.
Any person injured by any act in violation of the provisions of this chapter shall have a
civil cause of action in Circuit Court to enjoin further violations, and to recover the actual
damages sustained, together with the costs of the law suit. The court's order or
judgment shall include a reasonable fee for the plaintiff's attorney of record and any
other remedies contained in this chapter.
https://kchr.ky.gov/About/Pages/Kentucky-Civil-Rights-Act.aspx
Louisiana
No public accommodations law
http://www.capitol.hawaii.gov/hrscurrent/Vol11_Ch0476-0490/HRS0489/HRS_0489-
.htm
Nebraska
Neither NE’s public accommodations act or rule allow for monetary damages.
https://neoc.nebraska.gov/laws/pdf/ActProvidingEqualEnjoymentofPublicAccommodatio
ns.pdf
https://neoc.nebraska.gov/laws/pdf/PARules.pdf
Nevada
NRS 651.090 Deprivation of, interference with and punishment for exercising rights
and privileges: Civil actions; damages; equitable relief; costs and attorney’s fees.
2. In an action brought pursuant to this section, the court may: (a) Grant any
equitable relief it considers appropriate, including temporary, preliminary or permanent
injunctive relief, against the defendant. (b) Award costs and reasonable attorney’s fees
to the prevailing party.
35
https://www.leg.state.nv.us/nrs/nrs-651.html#NRS651Sec070
North Carolina
§ 168A-11. Civil action. (b) Any relief granted by the court shall be limited to declaratory
and injunctive relief…
(d) In any civil action brought under this Chapter, the court, in its discretion, may
award reasonable attorney's fees to the substantially prevailing party as part of costs.
(1985, c. 571, s. 1; 1999-160, s. 1.)
https://www.ncleg.net/enactedlegislation/statutes/html/bychapter/chapter_168a.html
North Dakota
14-02.4-20. Relief. Neither the department nor an administrative hearing officer may
order compensatory or punitive damages under this chapter.
https://www.ndlegis.gov/cencode/t14c02-4.pdf?20150821135716
Pennsylvania
Section 9 (d)(2) If, after a trial, Commonwealth Court finds that a respondent engaged
in or is engaging in any unlawful discriminatory practice as defined in this act, the court
may award attorney fees and costs to the complainant on whose behalf the action was
commenced.
https://www.legis.state.pa.us/cfdocs/legis/LI/uconsCheck.cfm?txtType=HTM&yr=1955&
sessInd=0&smthLwInd=0&act=222&chpt=0&sctn=9&subsctn=0
Puerto Rico
No human rights law.
South Carolina
No public accommodations law.
https://www.scstatehouse.gov/code/t01c013.php
Tennessee
Disability is not a protected class in TN law on public accommodations.
36

Virginia
No compensatory damages.
https://law.lis.virginia.gov/report/0AtCs/
Wyoming
No public accommodations law.
www.wyomingworkforce.org/workers/labor/rights
Endnotes

i
Cummings v. Premier Rehab Keller, P.L.L.C., ___ U.S. ___, 142 S. Ct. 1562, 212 L.
Ed. 2d 552, reh'g denied, 142 S. Ct. 2853 (2022).
ii
The Congressional Research Service has released a useful analysis of the impact of
Cummings on other civil rights laws in “Civil Rights Remedies in Cummings and
Implications for Title VI and Title IX.” (June 29, 2022).
https://crsreports.congress.gov/product/pdf/LSB/LSB10775 (Accessed Oct. 6, 2022).
iii
U.S. Constitution, Article I, Section 8, Clause 1. “Spending Law” statutes derive their
authority from this section of the U.S. Constitution. The “Spending Clause” authorizes
Congress to raise taxes and spend money “to pay the Debts and provide for the
common Defence [sic] and the general Welfare of the United States.” Federal agencies
distribute billions of dollars in federal assistance, and Congress sets conditions and
parameters concerning use of federal funds enacted through this spending clause
authorities. This is distinct from statutes that are based, for example, on the “Commerce
Clause,. The Commerce Clause refers to Article 1, Section 8, Clause 3 of the U.S.
Constitution, which gives Congress the power “to regulate commerce with foreign
nations, and among the several states, and with the Indian tribes.”
iv
Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat 327 (1990), §
2(b)(4); codified at 42 U.S.C. § 12101(b)(4).
v
Barnes v. Gorman, 536 U.S. 181, 122 S. Ct. 2097 (2002).
vi
Courts can further order injunctive, also known as equitable relief, to order a
defendant in an antidiscrimination suit to take or refrain from taking such action. While
perhaps not intuitive, a Court under the Title I of ADA covering employment may order
equitable monetary relief which is not considered compensatory damages. Lost past or
future wages and benefits which result from employment discrimination is considered
equitable relief and not compensatory damages. 42 U.S.C. § 1981a Civil Rights Act of
1991, PL 102–166, November 21, 1991, 105 Stat 1071; see e.g., Picinich v. United
Parcel Serv., 583 F. Supp. 2d 336, 344 (N.D.N.Y. 2008), aff'd, 318 F. App'x 34 (2d Cir.
2009).
37

vii
See footnote 3.
viii
42 U.S.C. § 2000d et seq.
ix
Barnes, 536 U.S. at 185.
x
Title VI of the Civil Rights Act is silent on the issue of punitive damages.
xi
xii
Louisville & N.R. Co. v. Hull, 24 Ky.L.Rptr. 375 (Ct. App. Ky., May 29, 1902).
xiii
Notably, many state laws provide for damages where Title III of the ADA does not.
For example, plaintiffs in California may bring accessibility lawsuits under the state’s
Unruh Civil Rights Act, California Civil Code § 52(a) and (b), allowing $4,000 per
violation as well as punitive damages and attorney’s fees. The California Disabled
Persons Act, as well as a variety of other state laws, provide additional avenues for the
recovery of damages.
xiv
See Doe v. Salvation Army, 685 F.3d 564, 574 (6th Cir. 2012) (“There is nothing in
the plain meaning of the statutory words or the legislative history of § 504 that would
exclude social services when done as a form of worship, even though such social
services may in some cases also be called religious service.”).
xv
See Nordwall v. PHC-LAS Cruces, Inc, 960 F.Supp.2d 1200, 1228 (D. New Mexico,
2013).
xvi
Ibid., 960 F.Supp.2d at 1229, quoting Saltzman v. Bd. of Comm'rs of N. Broward
Hosp. Dist, 239 F. App’x. 484, 487–88 (11th Cir. 2007).
xvii
Ibid., 960 F.Supp.2d at 1229-30.
xviii
Ibid., 960 F.Supp.2d at 1230.
xix
xx
Cummings, 142 S. Ct. at 1578 (Breyer dissenting).
xxi
42 U.S.C. § 12132. Enforcement “The remedies, procedures, and rights set forth in
section 505 of the Rehabilitation Act of 1973 (29 U.S.C. 794a) shall be the remedies,
procedures, and rights this title provides to any person alleging discrimination on the
basis of disability in violation of section 202 [of the ADA.]”
xxii
Cummings, 42 S. Ct. at 1578 (Justice Breyer dissenting).
xxiii
20 U.S.C. § 1681 - § 1688.
xxiv
The contract law analogy applied to Section 504 remedies was then extrapolated to
Title II of the ADA.
xxv
xxvi
Ibid., 536 U.S. at 189.
xxvii
Ibid., 536 U.S. at 187.
xxviii
Cummings, 42 S. Ct. at 1577 (Justice Breyer dissenting citing Restatement
(Second) of Contracts § 353).
xxix
xxx
Ibid., 536 U.S. at 188.
xxxi
Cummings, 142 S. Ct. at 1571.
xxxii
505 F.3d 1173 (11th Cir. 2007).
xxxiii
349 Mich. 459, 84 N.W.2d 816, 823 (1957).
xxxiv
Ibid., 349 Mich. at 466-7.
xxxv
Sheely, 505 F.3d at 1199.
xxxvi
332 F.3d 1347, 1354, 1359 (11th Cir. 2003).
xxxvii
777 F.2d 1431, 1435 (11th Cir. 1985).
38

xxxviii
178 Misc. 363, 34 N.Y.S.2d 312, 314–16 (N.Y. Sup.Ct. 1942).
xxxix
Cummings v. Premier Rehab Keller, P.L.L.C., 948 F.3d 673, 679 (5th Cir., 2020),
citation to Sheely, 505 F.3d at 1199.
xl
xli
See Nashville, C. & St. L. Ry. v Campbell, 212 Ala. 27 (1924) (“[A]ny breach of a
contract entitling a plaintiff to recover nominal damages will support a recovery for
mental suffering, even though no injury to person or property is shown”); Gregory &
Swapp, PLLC v. Kranendonk, 2018 Utah 36, 424 P.3d 897 (Utah 2018) (“When the
primary nature of the contractual obligations involves peculiarly personal interests, as
opposed to pecuniary interests, emotional distress damages stemming from a breach of
that contract may be warranted.”).
xlii
Stewart, 349 Mich. at 469.
xliii
Includes Community Mental Health Centers, Comprehensive Outpatient
Rehabilitation Facilities, Critical Access Hospitals, Dialysis Facilities, Federally Qualified
Health Centers, Home Health Agencies, Hospice Providers, Hospitals, Rural Health
Clinics, Skilled Nursing Facilities among other healthcare organizations.
xliv
CMS has legal authority under Title XVIII of the Social Security Act to require health
care providers to meet the legal requirements of the civil rights nondiscrimination
statutes and regulations enforced by OCR in order to participate in the Medicare Part A
program. These statues and regulations ensure that eligible persons have equal access
to quality health care regardless of their race, color, national origin, disability, or age.
The specific statutes include: Title VI of the Civil Rights Act of 1964 (which prohibits
discrimination on the basis of race, color and national origin); Section 504 of the
Rehabilitation Act of 1973 (which prohibits discrimination on the basis of disability); the
Age Discrimination Act of 1975 (which prohibits discrimination on the basis of age); and
Section 1557 of the Affordable Care Act (which prohibits discrimination on the basis of
race, color, national origin, sex (including pregnancy, sexual orientation, and gender
identity), age, or disability in certain health programs or activities).
xlv
Ninety-eight percent of civil cases are filed in state courts. As of 2015 more than half
of civil case filings were contract cases. Weiss, D., “Tort suits in state courts are ‘down
sharply’ as contract claims grow.” ABA Journal, July 26, 2017.
https://www.abajournal.com/news/article/tort_suits_in_state_courts_are_down_sharply_
as_contract_claims_grow (accessed Oct. 7, 2022).
xlvi
See 54 A.L.R.4th 901 (Originally published in 1987).
xlvii
Ibid.
xlviii
113 Ky. 561, 68 S.W. 433 (1902).
xlix
Kishmarton v. William Bailey Constr., Inc., 93 Ohio St. 3d 226 (2001).
l
94 So. 3d 782 (La. Ct. App. 1st Cir. 2012), writ denied, 90 So. 3d 442 (La. 2012).
li
Louisiana Statutes Annotated – Civil Code. Art. 1998 (1985).
lii
504 U.S. 555 (1992).
liii
Aikins v. St. Helena Hosp., 843 F.Supp. 1329 (N.D.Cal.1994).
liv
Giterman v. Pocono Med. Ctr., 361 F.Supp.3d 392, 406 (M.D.Pa. 2019).
lv
742 F. Supp. 2d 1192 (D. Colo. 2010).
lvi
lvii
548 U.S. 291 (2006).
lviii
Ibid., 548 U.S. at 296.
39

lix
Cummings, 142 S. Ct. at 1576-7 (Cavanaugh concurrence).
lx
Ibid., 142 S. Ct. at 1578 (Breyer dissenting).
lxi
See Franklin v. Gwinnett Cty. Pub. Sch., 503 U.S. 60, 75 (1992); Barnes, 536 U.S. at
187, Cummings, 142 S. Ct. at 1570.
lxii
The Law Dictionary featuring Black’s Law Dictionary (2nd ed.)
https://thelawdictionary.org/article/two-different-types-compensatory-damages/
(accessed Oct. 6, 2022).
lxiii
Legal Information Institute, Cornel Law School, “damages,”
https://www.law.cornell.edu/wex/damages. (Accessed Oct 6, 2022); Ibid., “actual
damages,” https://www.law.cornell.edu/wex/actual_damages (Accessed Oct 6, 2022).
40

About Martin Luther King & Section 504 of The 1973 Rehabilitation Act - #Michael Ayele (A.k.a) W - #National Council On Disability (NCD)

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About Martin Luther King & Section 504 of The 1973 Rehabilitation Act - #Michael Ayele (A.k.a) W - #National Council On Disability (NCD)

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THE NATIONAL COUNCIL ON DISABILITY (NCD)

DENIED HAVING KNOWLEDGE OF SPECIFIC

MICHAEL A. AYELE (a.k.a) W

September 22, 2022

Re: FOIA Request NCD-2022- 19

1331 F Street, NW ■ Suite 850 ■ Washington, DC 20004

For tracking purposes, your tracking number is NCD-2022- 19.

Office of Government Information Services (OGIS)

Anne Sommers McIntosh

W (AACL) Date.: August 23rd 2022

Request for Records

II) Request for a Fee Waiver and Expedited Processing

W (AACL) – MICHAEL A. AYELE 2

W (AACL) – MICHAEL A. AYELE 3

W (AACL) – MICHAEL A. AYELE 4

4. Establish an "effective alternative to litigation" and to its "arduous route";

5. Prevent discriminatory uses of federal assistance from "defeating the program's

6. Halt the rampant discrimination in the states' implementation of federal programs.

Rehabilitating Section 504. National Council on Disability (NCD).:

W (AACL) – MICHAEL A. AYELE 6

Disability rights ARE civil rights.

W (AACL) – MICHAEL A. AYELE 7

W (AACL) – MICHAEL A. AYELE 8

It is important to note, however, that the "program-wide" requirement applies both to

W (AACL) – MICHAEL A. AYELE 12

Disaster Distress Helpline: Phone 800/985-5990. Text “TalkWithUs” to 66746

DHSS COVID-19 24 hour hotline: 877-435-8411

I sincerely hope you reconsider your response. Be well. Take care.

Please see below for responses to your request for records.

COMPETENCY SERVICES (CS)

W (AACL) – MICHAEL A. AYELE 20

Department of Mental Health (MODMH)

W (AACL) – MICHAEL A. AYELE 23

National Council on Disability

January 19, 2023

Dear Mr. President:

Appropriate and adequate remedies must continue to be available to people with

Andrés J. Gallegos, J.D.

Stacey S. Brown, Staff Assistant

Summary of NCD Brief on Cummings v Premier Rehab Keller ................................................... 5

Often, people who experience disability-based discrimination at the hands of a public or

A. Analysis of the Decision

In approximately half of U.S. states and the District of Columbia, however,

Notably, places of religious worship (churches, synagogues), as well as other places or

Deliberate indifference requires knowledge that a federally protected right is likely

Another possible consequence of Cummings is that it may be extended to private rights

The Rehabilitation Act (prohibiting disability discrimination) and the Affordable

B. Damages for Breach of Contract

The shift from “traditionally available” in Barnes to “usual contract remedies” in

C. Notice to Federal Funds Recipients of Potential Liability

The Barnes Court noted:

We have acknowledged that compensatory damages alone “might well exceed a

Hornbook law states that emotional distress is generally not compensable in

We are therefore left to determine the question here presented according to

 Stallworth v. Shuler (11th Cir.):xxxvii upholding award of emotional damages under

 Odom v. East Ave. Corp (N.Y. Supreme Court):xxxviii awarding emotional

[W]hether funding recipients can foresee a consequence of a particular “breach”

D. State Courts Commonly Allow for Emotional Distress Damages in Contract

Section § 3 “Rule that compensatory damages for mental anguish or emotional

Section § 4 “Rule that compensatory damages for reasonably foreseeable mental

 In Louisville & N. R. Co. v Hull (1902),xlviii although overturning on other grounds,

Though proof of emotional distress damages in these cases will be

 In Matherne v. Barnum (2012),l upholding application of a Louisiana Code