Proposed update to HHS’ Section 504 Rule

On Thursday, Sept. 7, the HHS Office for Civil Rights published a proposed update to the HHS regulations implementing Section 504 of the Rehabilitation Act of 1973, which prohibits disability discrimination by recipients of federal funding. This is the first comprehensive update to the regulations since they were first put in place more than 40 years ago. The proposed rule strengthens protections for people with disabilities and reflects the input and priorities of the disability community.

The Rehab Act was the first civil rights legislation protecting disabled people from discrimination. It has a broad reach, prohibiting discrimination on the basis of disability in “any program or activity receiving federal financial assistance.” Section 504 covers all health care and human services programs and activities funded by HHS, from hospitals and doctors that accept Medicare or Medicaid to states’ child welfare programs, for example. It protects disabled people of all ages – which includes older adults who need assistance with major life activities like walking, getting in and out of bed, hearing, or seeing, who may not even think of themselves as people with disabilities.

The proposed update clarifies obligations in several crucial areas that are not explicitly addressed in the current rule and improves consistency with legislative developments since the current regulations were issued. These include:

• 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 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.