US HHS Publishes New Protections Against Health Care Disability Discrimination Under Section 504 of the Rehabilitation Act of 1973

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On September 7, The U.S. Department of Health and Human Services (HHS) issued a Notice of Proposed Rulemaking (NPRM) to advance equity and enhance protections for people with disabilities.  The proposed new federal regulations, entitled, Discrimination on the Basis of Disability in Health and Human Services Programs or Activities, focuses on Section 504 of the Rehabilitation Act of 1973. This law prohibits disability discrimination by health care providers who receive federal financial assistance, such as Medicare and Medicaid reimbursement. Unlike the Americans with Disabilities Act, which broadly applies to local and state governments and private businesses that are open to the public, the Rehabilitation Act only applies to health care organizations that receive federal subsidies.

 

Here is a link to the NPRM’s Federal Register page:

https://www.federalregister.gov/documents/2023/09/14/2023-19149/discrimination-on-the-basis-of-disability-in-health-and-human-service-programs-or-activities

According to HHS:

“The historic proposed rule provides robust civil rights protections for people with disabilities in federally funded health and human services programs. It advances the promise of the Rehabilitation Act and helps to ensure that people with disabilities are not subjected to discrimination in any program or activity receiving funding from HHS just because they have a disability.

This proposed rulemaking is consistent with Section 504 statutory text, congressional intent, legal precedent, and the Biden-Harris Administration’s priority of advancing equity and civil rights and protecting Americans’ access to health care and human services programs and activities. “

The NPRM updates the current Section 504 regulations and clarifies several areas that are not explicitly addressed in Section 504’s current regulations. These areas include:

“Medical treatment.  This section addresses pervasive discrimination on the basis of disability in accessing medical care, which leads to significant health disparities and poorer health outcomes for individuals with disabilities.  This pattern of discrimination can be found in a wide variety of contexts including organ transplantation, life-sustaining treatment, crisis standards of care that are triggered when resources are limited, and participation in clinical research.  The proposed rule ensures that medical treatment decisions by entities that receive federal financial assistance from HHS are not based on biases or stereotypes about individuals 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. [This section arose in part because of significant disability discrimination during the COVID pandemic as health care providers in several states denied COVID treatment to patients with disabilities, in part because of providers’ disability biases and their stereotypical ideas about living with disabilities.]

Value assessment methods.  Value assessment methods can play an important role in determining whether a particular intervention such as a medicine or treatment will be provided and under what circumstances.  They are an increasingly significant tool for cost containment and quality improvement efforts.  Value assessment methods may discriminate against individuals with disabilities when they place a lower value on life-extension for individuals with disabilities when that method is used to limit access or deny aids, benefits, or services.  The NPRM prohibits the discriminatory use of such methods.

Child welfare programs and activities.  Children, parents, caregivers, foster parents, and prospective parents may encounter a wide range of discriminatory barriers when accessing critical child welfare programs and activities that are designed to protect children and strengthen families.  This section sets forth detailed requirements to ensure nondiscrimination in such areas as parent-child visitation, reunification services, child removals and child placements, guardianship, parenting skills programs, foster and adoptive parent assessments, and in and out-of-home services.

Web and mobile accessibility. The NPRM  defines what online accessibility means for web and mobile applications and sets forth specific technical standards for compliance with Section 504, using the same standards in a recently proposed rule from the Department of Justice under Title II of the Americans with Disabilities Act.

[In 2022, DOJ published its first ever Guidance document on website accessibility for local and state governments: https://www.ada.gov/resources/accessibility-govt-websites/   DOJ intends this Guidance to be a model for additional website accessibility guidance documents and rulemaking, as it was for HHS’s NPRM. DOJ recently published its own NPRM about website accessibility: https://www.ada.gov/notices/2023/07/20/web-nprm/ The public comments period ends on October 3, 2023.]

Accessible medical equipment.  People with disabilities continue to experience barriers to accessing medical care because of inaccessible medical equipment.  Barriers such as exam tables that are not height adjustable, mammography machines that require a person to stand, and weight scales that do not accommodate wheelchairs result in inequities and exclusion from basic health services for individuals with disabilities, contributing to poor health outcomes.  The NPRM establishes enforceable standards for accessible medical diagnostic equipment, a significant and concrete step toward addressing health disparities experienced by people with disabilities.  The proposed regulations also mandate that within two years of the rule’s effective date, recipients that use an examination table in their program or activity have at least one accessible exam table, and recipients that use a weight scale in their program or activity have at least one accessible weight scale.”

The NPRM also implements changes needed to reflect consistency with ADA, and significant federal court decisions.  HHS importantly notes that most of the agency’s federal financial assistance recipients have been covered by the ADA for more than 30 years, since the law’s enactment in 1991.

These new regulations include:

  • Service animals:  Recipients must permit the use of trained service dogs except under certain circumstances.
  • Maintenance of accessible features:  Facilities and equipment required to be accessible to individuals with disabilities must be maintained in operable working order.
  • Personal services and devices:  Personal services and devices are not required unless they are customarily provided to individuals without disabilities.
  • Mobility devices:  Recipients must permit individuals to use manually-powered mobility devices such as wheelchairs in areas open to pedestrian use and power-driven mobility devices under certain circumstances.
  • Communications:  Recipients must ensure effective communications with individuals with hearing, vision, and speech impairments through the provision, when necessary, of auxiliary aids and services such as qualified interpreters, text telephones, and information in Braille, large print, or electronically  for use with a computer screen-reading program.
  • Direct threat:  Recipients are not required to permit individuals in programs or activities when they pose a direct threat as described in the proposed rule.
  • Illegal use of drugs:  Nondiscrimination requirements generally do not apply to individuals based on their current illegal use of drugs.
  • Retaliation and coercion:  Recipients may not retaliate against an individual for having made a complaint or objected to any act or practice made unlawful by Section 504
  • Standards: Recipients building new facilities or altering existing facilities must comply with the 2010 Standards for Accessible Design, the standard issued by the Department of Justice.
  • Limitations:  Recipients need not take actions if those actions would result in a fundamental alteration in the nature of their program or in undue financial and administrative burdens.

 

Comments about the NPRM, identified by RIN 0945- AA15, can be sent to HHS by

  • Federal eRulemaking Portal. You may submit electronic comments at http://www.regulations.gov by searching for the Docket ID number HHS-OCR-2023-0013. Follow the instructions at http://www.regulations.gov online.
  • Regular, Express, or Overnight Mail: You may mail comments to U.S. Department of Health and Human Services, Office for Civil Rights, Attention: Disability NPRM, RIN 0945- AA15, Hubert H. Humphrey Building, Room 509F, 200 Independence Avenue, SW, Washington, DC 20201.

All comments sent by the above methods and received or officially postmarked by the due date specified above will be posted without change to content to http://www.regulations.gov, including any personal information provided, and such posting may occur before or after the closing of the comment period.

 

 

© Bruce L. Adelson 2023. All Rights Reserved The material herein is educational and informational only.  No legal advice is intended or conveyed.

Bruce L. Adelson, Esq., is nationally recognized for his compliance expertise.  Mr. Adelson is a former U.S Department of Justice Civil Rights Division Senior Trial Attorney.  Mr. Adelson is a faculty member at the Georgetown University School of Medicine and University of Pittsburgh School of Law where he teaches organizational culture, implicit bias, cultural and civil rights awareness.

Mr. Adelson’s blogs are a Bromberg exclusive.

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