HHS Proposes to Strengthen Protections Against Discrimination Based on Disability
U.S. Department of Health and Human Services has announced a historic notice of proposed rulemaking (NPRM) to Section 504 of the Rehabilitation Act of 1973. This NPRM is the most significant update to Section 504 in 50 years! This is a critical update and a huge win for the disabled community!
What does it do?
Discrimination in medical treatment: Ensures that medical treatment decisions are not based on biases or stereotypes about people with disabilities, judgments that an individual will be a burden on others, or beliefs that the life of an individual with a disability has less value than the life of a person without a disability. These include, for example, decisions about life-sustaining treatment, organ transplantation, rationing care in emergencies, and other vital medical decisions.
Accessibility of medical equipment: Adopts the U.S. Access Board’s accessibility standards for medical equipment to address barriers like exam tables that are inaccessible because they are not height-adjustable, weight scales that cannot accommodate people who use wheelchairs, and mammogram machines that require an individual to stand to use them. The rule would require most doctor’s offices to have an accessible exam table and weight-scale within two years.
Web, mobile app, and kiosk accessibility: Adopts the Web Content Accessibility Guidelines (WCAG) 2.1, Level AA accessibility standards for websites and mobile applications. It also requires self-service kiosks to be accessible. These provisions are particularly important given the increased use of websites, apps, telehealth, video platforms, and self-service kiosks to access health care.
Child welfare programs and activities: Clarifies requirements in HHS-funded child welfare programs and activities to help eliminate discriminatory barriers faced by children, parents, caregivers, foster parents, and prospective parents with disabilities, such using the presence of a disability or an individual’s IQ score alone as a reason for removal of a child, prohibiting disabled parents from serving as foster parents, or failing to place disabled children who need services in the most integrated settings appropriate to their needs.
Community integration: Clarifies obligations to provide services in the most integrated setting appropriate to a person’s needs, consistent with the Supreme Court’s decision in Olmstead v. L.C. This provision has been central to vindicating the right to community living.
Value assessment methods: To establish whether a particular intervention, such as a medicine or treatment, will be provided and under what circumstances, health care organizations often use a variety of methods to evaluate whether the benefits of the intervention outweigh the costs. These “value assessment methods” are an increasingly significant tool for cost containment and quality improvement efforts, but they may discriminate against people with disabilities when they place a lower value on extending the life of a person with disability. The proposed rule prohibits the discriminatory use of such methods to deny or limit access to aids, benefits, or services.
Since the 504 regulations were originally published, the Rehabilitation Act has been amended and the ADA was passed. Because Congress directed that Section 504 and the ADA be interpreted consistently, the proposed rule also aligns HHS’ 504 regulations with newer ADA regulations. For example, the proposed rule requires recipients of HHS funding to allow the use of trained service animals in most circumstances and to ensure effective communications by providing, when necessary, accommodations such as qualified interpreters, text telephones, and information in Braille, large print, or electronically for use with a computer screen-reading program.
For 60 days starting on September 14, HHS will be seeking public comment on the proposed rule. Input from the disability and aging communities is essential! (We will share instructions for submitting comments, as soon as the information is available.)
The updated Section 504 rule will be a critical tool for fighting disability discrimination, and ACL is proud to have worked with OCR in developing it. Of course, these updated regulations are only the first step. Once finalized, ACL is committed to supporting OCR’s technical assistance and enforcement efforts to translate the new rule into reality.