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  2. Advancing Civil Rights: A Primer on Current Federal Actions to Combat Disability Discrimination

Advancing Civil Rights: A Primer on Current Federal Actions to Combat Disability Discrimination

Decades of determined and persistent advocacy by generations of disability advocates have led to legislative, regulatory, and legal advances that have made this country more inclusive and accessible for people with disabilities. At the same time, people with disabilities continue to face discrimination and far too many barriers to exercising their basic civil rights.

These issues are not new, but COVID-19 brought them to the forefront and created momentum for change. That’s why the Biden-Harris Administration specifically recognized disabled people in its executive order on advancing equity — and why agencies across the federal government are taking action to strengthen anti-discrimination protections for people with disabilities.

These regulatory actions complement and build upon each other. For example, HHS recently announced updates to the regulations implementing Section 504 of the Rehabilitation Act, which prohibits disability discrimination by recipients of federal funding. The HHS 504 Rule complements the disability provisions in the HHS rule implementing Section 1557 of the Affordable Care Act published earlier this year, as well as a Department of Justice rule on web accessibility for public entities under the Americans with Disabilities Act (ADA). HHS and the Department of Justice are both working to make medical diagnostic equipment more accessible — building on the standards developed by the Access Board. 

These rules implement five important disability rights statutes:

  • Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability by any recipient of federal financial assistance.
  • Title II of the Americans with Disabilities Act, which requires state/local governments to give people with disabilities an equal opportunity to benefit from all of their programs, services, and activities.
  • The Architectural Barriers Act (ABA) of 1968, which requires that buildings or facilities that were designed, built, or altered with federal dollars or leased by federal agencies after August 12, 1968, be accessible.
  • Section 1557 of the Patient Protection and Affordable Care Act, which prohibits discrimination on the basis of race, color, national origin, age, disability, or sex (including pregnancy, sexual orientation, gender identity, and sex characteristics) in covered health programs or activities.
  • The Fair Housing Act, which prohibits discrimination on the basis of race, color, national origin, religion, sex (including gender identity and sexual orientation), familial status, and disability in renting or buying a home, getting a mortgage, seeking housing assistance, or engaging in other housing-related activities.

Input on proposed rules from people with disabilities and their families, as well as from the disability and aging networks is absolutely critical to ensure that the final regulations reflect, and respond to, the needs and experiences of people with disabilities.

We’ve pulled together information about these rules here to make it easier for stakeholders to keep track of their status — and upcoming deadlines.  

Final Rules

DOJ Final Rule: ADA Title II - Medical Diagnostic Equipment

This Department of Justice (DOJ) final rule seeks to improve access to medical diagnostic equipment (MDE) for people with disabilities. Examples of MDE include examination tables, dental chairs, and mammography and x-ray equipment. The rule clarifies how public entities, such as hospitals and health care clinics operated by state or local governments, can meet their obligations under the Title II of the ADA.

The technical standards for MDE are based on standards developed by the Access Board and used in HHS’ recent rule implementing Section 504 of the Rehabilitation Act. The HHS Section 504 rule applies to entities that receive federal funding or assistance while the DOJ Title II rule applies to public entities (i.e., state and local governments).

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Access Board Final Rule: Low Transfer Surface Height of Medical Diagnostic Equipment

The Architectural and Transportation Barriers Compliance Board, better known as the Access Board, has finalized a rule that would set accessibility standards for low-transfer height of medical diagnostic equipment (MDE), such as examination tables and chairs or mammography imaging equipment, at 17 inches. Medical diagnostic care is essential to everyone, including people with disabilities, and often requires people to transfer onto diagnostic equipment for evaluation. MDE has historically been, and continues to be, inaccessible to many people using wheelchairs, which can lead to misdiagnosis or barriers to basic care and examinations. Please note that this is only a voluntary standard until or unless enforcing agencies, such as HHS and DOJ, conduct and complete rulemaking to incorporate the Access Board standards.

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HHS Rule: Section 504 of the Rehabilitation Act of 1973

HHS’ Office for Civil Rights finalized a rule that updates, clarifies, and strengthens HHS’ implementing regulation for Section 504 of the Rehabilitation Act of 1973. This is the first major update to HHS’ Section 504 regulations since they were first issued in 1977. Those historic regulations were issued after years of advocacy by disability rights advocates culminating in a 25-day sit-in at the Department of Health, Education, and Welfare regional office in San Francisco.

Some of the critical issues addressed in this rule include discrimination on the basis of disability in accessing medical care; value assessment methods used to determine whether a particular intervention will be provided; nondiscrimination in child welfare programs; information and communication technology, including web and mobile accessibility; accessible medical diagnostic equipment; and providing services in the most integrated setting appropriate to the person’s needs.

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HHS Section 1557 Final Rule: Nondiscrimination in health programs and activities

HHS released a final rule implementing Section 1557 of the Affordable Care Act. The rule strengthens civil rights protections for people who use health programs and services funded by HHS and includes a number of provisions that are particularly relevant for older adults and people with disabilities — including provisions on accessible telehealth and services in integrated community settings.

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DOJ Title II Web Access Rule

DOJ has finalized a rule that establishes accessibility standards for state and local governments’ web and mobile app-based services.

The rule uses Web Content Accessibility Guidelines Version 2.1, Level AA as the technical standard for web content and mobile apps that state and local governments would be required to follow. In response to disability advocates comments and concerns, the final rule eliminated exceptions included in the proposed rule for password-protected educational sites.

This rule will better enable state and local governments to meet their ADA obligation to provide equal access to their services, programs, and activities for people with disabilities. It establishes clear technical standards, such as including text descriptions of images so people using screen readers can understand the content, providing captions on videos, and enabling navigation through use of a keyboard instead of a mouse for those with limited use of their hands.

State and local governments use websites and mobile apps for many of their services, programs, and activities. When these websites and mobile apps are not accessible, they can create barriers for people with disabilities trying to, for example, request an absentee ballot; learn about, and participate in, public meetings; and access information from their child’s school. Clearer standards will both ensure that people with disabilities can access vital services and make it easier for states and localities to understand their ADA obligations.

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HHS Final Access Rule

On April 22, 2024, HHS, through the Centers for Medicare & Medicaid Services (CMS), released the Ensuring Access to Medicaid Services final rule (Access Rule) which creates national standards that will allow people enrolled in Medicaid to better access care when they need it and also strengthens home and community-based services (HCBS), which millions of older adults and people with disabilities rely upon to live in the community.

This final rule includes new requirements related to the direct care workforce, access to HCBS, health and safety protections, quality measures, and more.

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Access Board Final Rule: Public Right-of-Way Accessibility Guidelines

In August 2023, the Access Board published new guidelines that address access to pedestrian facilities in the public right-of-way, such as sidewalks and streets, crosswalks, curb ramps, pedestrian signals, on-street parking, and other components.

Pedestrians with disabilities throughout the United States continue to face major challenges in travel because many sidewalks, crosswalks, and other pedestrian facilities are inaccessible. The Access Board’s public right-of-way accessibility guidelines inform federal, state, and local government agencies on how to make their pedestrian facilities accessible to people with disabilities. The guidelines also address shared use paths, which are designed primarily for use by bicyclists and pedestrians for transportation and recreation purposes.

The public right-of-way accessibility guidelines apply to alterations and additions to existing pedestrian facilities in the public right-of-way, as well as newly constructed pedestrian facilities covered under Title II of the Americans with Disabilities Act, the Architectural Barriers Act, and Section 504 of the Rehabilitation Act.

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HUD Reinstatement of Discriminatory Effects Standard

On March 31, 2023, HUD published a final rule restoring HUD’s 2013 discriminatory effects rule and rescinding HUD’s 2020 rule governing these claims under the Fair Housing Act. The discriminatory effects doctrine is a tool available under the Fair Housing Act to address policies that unnecessarily cause a disparate impact or segregation in housing, regardless of whether they were adopted with discriminatory intent.

The final rule implements the Fair Housing Act’s broad remedial purpose of eliminating unnecessary discriminatory practices from the housing market.

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HUD Affirmatively Furthering Fair Housing (AFFH) Interim Final Rule

In 2021, HUD published an interim final rule (IFR), “Restoring Affirmatively Furthering Fair Housing Definitions and Certifications,” requiring program participants to submit certifications that they will affirmatively further fair housing in connection with their consolidated plans, annual action plans, and PHA plans. In order to support these certifications, the IFR creates a voluntary fair housing planning process for which HUD will provide technical assistance and support.

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Rules Being Finalized

Department of Transportation Proposed Rule: Ensuring Safe Accommodations for Air Travelers Using Wheelchairs

The U.S. Department of Transportation (DOT) is finalizing a proposed rule designed to ensure airline passengers who use wheelchairs can travel safely and with dignity. 

An estimated 5.5 million Americans use a wheelchair, and many encounter barriers when it comes to air travel. In 2023, 11,527 wheelchairs and scooters were mishandled by carriers required to report data to DOT. 

The proposed rule would set new standards for prompt, safe, and dignified assistance; require enhanced training for airline employees and contractors who physically assist passengers with disabilities and handle passengers’ wheelchairs; and specify actions that airlines must take to protect passengers when a wheelchair is damaged during transport.

HUD Proposed Rule: Affirmatively Furthering Fair Housing (AFFH)

HUD is in the process of finalizing a rule implementing the Fair Housing Act’s statutory mandate to affirmatively further fair housing (AFFH), which directs HUD to ensure that the agency and its program participants proactively take meaningful actions to overcome patterns of segregation, promote fair housing choice, eliminate disparities in opportunities, and foster inclusive communities free from discrimination.

The proposed rule provides that housing programs must consider people with disabilities and accessibility needs as central concepts when assessing and addressing barriers to fair and equitable housing and explicitly requires that these programs consult with organizations that advocate on behalf of older adults and people with disabilities — such as centers for independent living and aging and disability resource centers.

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Coming soon

Department of Education Intent to Update Section 504 Rule

Regulations Implementing Section 504 of the Rehabilitation Act of 1973

The U.S. Department of Education is gathering public input to inform amendments to its regulations implementing section 504 of the Rehabilitation Act of 1973. Proposed updates may address, among other things, persistent barriers to access for students with disabilities in education, update outdated language, and align the regulations with subsequent laws protecting the rights of people with disabilities, including the Americans with Disabilities Act and the Americans with Disabilities Act Amendments Act.

Those wishing to provide input may send an email to Section504@ed.gov.

Visit the Department of Education’s website to learn more.

HUD Advanced Notice of Proposed Rulemaking: Sec. 504 of the Rehab Act

Nondiscrimination on the Basis of Disability

In April 2023, the U.S. Department of Housing and Urban Development (HUD) published an Advanced Notice of Proposed Rulemaking (ANPRM) to collect public input on potential changes to its regulations implementing Section 504 of the Rehabilitation Act of 1973. An ANPRM allows a federal agency to solicit specific information and data from the public that can help in the drafting of a proposed rule. In this case, HUD intends to draft a proposed rule that would update their accessibility standard and clarify the obligations of HUD recipients and federal programs and activities in light of advances in areas including accessible design, information and communication technology, and assistive technology since HUD's current Section 504 regulations were published in 1988. The ANPRM also recognizes the importance of accessible and affordable housing efforts to assist individuals in transitioning from institutional and other segregated settings into integrated, community-based settings — especially in light of efforts to implement the Supreme Court’s 1999 Olmstead ruling.

Although the comment period for this ANPRM is closed, the public will have another opportunity to provide input when the proposed rule is published.

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Access Board Guidelines: Self-Service Transaction Machines

The Architectural and Transportation Barriers Compliance Board, better known as the Access Board, is developing a Notice of Proposed Rulemaking (NPRM) that will seek comments on accessibility related to the various types of self-service transaction machines (SSTMs), use and design of SSTMs, location of SSTMs, and economic impacts on small business, nonprofit, and governmental entities in the implementation of accessible SSTMs. The notice will be based on technical requirements for ATMs and fare machines in the Americans with Disabilities Act and Architectural Barriers Act Accessibility Standards and relevant provisions for hardware in the revised standards applicable to information and communication technology subject to Section 508 of the Rehabilitation Act (Revised 508 Standards). The Access Board previously issued, on September 21, 2022, an ANPRM to aid in the development of the proposed rule.

Touchscreen kiosks and other types of SSTMs are a common feature in places of public accommodation, government offices, and other buildings and facilities, allowing users to independently conduct a range of transactions and functions. However, SSTMs and self-service kiosks have long posed accessibility barriers to people with disabilities.

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Access Board Guidelines: Electric Vehicle Charging Stations

The Access Board is developing a Notice of Proposed Rulemaking (NPRM) on accessibility guidelines for electric vehicle (EV) charging stations. In July 2022, the Access Board issued a technical assistance document that covers existing requirements in the Americans with Disabilities Act and Architectural Barriers Act Accessibility Standards and new recommendations for making EV charging stations accessible.

The Bipartisan Infrastructure Law includes dedicated funding to the U.S. Department of Transportation through the Discretionary Grant Program for Charging and Fueling Infrastructure and the National Electric Vehicle Infrastructure Formula Program. These programs will fund the development of a national network of 500,000 electric vehicle charging stations. It is important to ensure everyone can use EV charging stations for local and long-distance trips.

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Access Board Guidelines: Rail Vehicles

This pending rulemaking would update the Access Board’s existing Americans with Disabilities Act accessibility guidelines for transportation vehicles that operate on fixed guideway systems (e.g., rapid rail, light rail, commuter rail, and intercity rail). The existing guidelines on rail vehicles need to be updated to keep pace with newer accessibility-related technologies, harmonize with recently developed national and international consensus standards, and incorporate recommendations from the Access Board’s Rail Vehicles Access Advisory Committee’s 2015 report. Revisions or updates to the rail vehicles guidelines would be intended to ensure that ADA-covered rail vehicles are readily accessible to and usable by individuals with disabilities.

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Last modified on 11/20/2024


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