On May 1, 2024, the U.S. Department of Health and Human Services (HHS), through its Office for Civil Rights (OCR), finalized the Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance rule. HHS also issued a Fact Sheet and press release on the final rule. The goal of the rule is to promote access to healthcare for persons with disabilities and prohibit discrimination on the basis of disability by recipients of financial assistance from HHS (“recipients”). This will apply to all HHS programs and organizations that do business with HHS. The final rule amends and updates the regulations that help persons with disabilities access health and human services under Section 504 of the Rehabilitation Act of 1973 and clarifies requirements not explicitly addressed in the current regulation. The final rule also aims to improve consistency with the American with Disabilities Act (ADA), the Americans with Disabilities Act Amendments Act (ADAAA), amendments to the Rehabilitation Act, and significant case law. These policies will take effect on July 8, 2024.

HHS UPDATES SECTION 504 REGULATIONS ADDRESSING DISCRIMINATION ON THE BASIS OF DISABILITY

Section 504 of the Rehabilitation Act of 1973 prohibits discrimination against otherwise qualified individuals on the basis of disability in programs and activities that receive Federal financial assistance or are conducted by a Federal agency. To expand and clarify areas not previously explicitly addressed in the rule, HHS finalized the following changes:

Medical Treatment

Medical literature, government agency reports, and court decisions demonstrate that individuals with disabilities face discrimination at every stage of the medical treatment process due to biases and stereotypes about the impact of a disability. This occurs in diagnoses, treatment decisions, emergency care, and medical resource allocation during health crises such as the COVID-19 pandemic. Other examples include organ transplantation, providing life-sustaining treatment, and participation in clinical research. This discrimination leads to significant health disparities and poorer health outcomes for individuals with disabilities.

HHS elaborates on the prohibition on discrimination against qualified individuals with disabilities by entities that receive Federal financial assistance from the Department (including providers and medical professionals) in the medical treatment context. The finalized regulations clarify that “medical treatment” is used in a generic, nonspecific manner and is intended to be broad and inclusive of “the management and care of a patient to identify, address, treat, or ameliorate a physical or mental health condition, injury, disorder, or symptom, whether or not the condition constitutes a disability and whether the medical approach is preventive, curative, rehabilitative, or palliative.”[1] This includes interventions, procedures/surgery, prescribing/dispensing/managing medications, exercise, physical therapy, rehabilitation services, and providing durable medical equipment.

The final rule does not require recipients to allocate resources in a specific way. It only prohibits them from using criteria that subject individuals with disabilities to discrimination on the basis of their disability, for example, denying care to individuals with a disability because of the length or scope of resources needed. Discrimination prohibited includes:

• Denial of medical treatment based on biases or stereotypes about a patient’s disability, judgement that an individual will be a burden due to their disability, or belief that the life of a person with a disability has a lesser value than that of a person without a disability;
• Denial of treatment for a separate symptom or condition; and
• Provision of medical treatment (different treatment provided for a patient with a disability than an individual without a disability seeking assistance with the same condition without a medical reason, as specified in the regulation).

Based on comments on the proposed rule, there was one modification to language on legitimate, nondiscriminatory reasons for denying treatment. The reasons for denying treatment include but are not limited to circumstances in which the recipient typically declines to provide treatment to any individual, or reasonably determines based on current medical knowledge that the medical treatment is not clinically appropriate for an individual.

Value Assessment Methods

Value assessment methods are increasingly used by providers to determine the cost-effectiveness of goods and services to determine whether a particular intervention or treatment will be provided and under what circumstances. They are used as a tool for cost containment and quality improvement and can inform activities such as price negotiations and value-based purchasing arrangements. Value assessment methods are not always discriminatory and play an important role in determining whether a particular intervention such as a medicine or treatment will be provided and under what circumstances.

Discrimination occurs in cases where value assessment methods place a lower value on life-extension for individuals with disabilities and as a result limit access to care or deny aids, benefits, or services. In this final rule, HHS applies prohibitions against discrimination on the basis of disability to the use of value assessment methods.

Children, Parents, Caregivers, Foster Parents, and Prospective Parents in the Child Welfare System

Children, parents, caregivers, foster parents, and prospective parents with disabilities may encounter a wide range of discriminatory barriers when accessing critical child welfare programs and services. For example, policies or practices that discourage and/or prohibit parents from receiving professional assistance with childcare responsibilities and safety and risk assessment policies that conflate disability with parental unfitness present discriminatory barriers. HHS finalized the proposal that no qualified individual with a disability may be excluded from participation in, be denied benefits of, or otherwise be subjected to discrimination under any child welfare program or activity.

The final rule elaborates with detailed requirements to ensure nondiscrimination in areas including parent-child visitation or reunification services, child removals and child placements, guardianship, parenting skills programs, foster and adoptive parent assessments, and in and out-of-home services. Following comments on the proposed rule, HHS clarifies that all services offered by the child welfare entity are covered. Additionally, the final rule clarifies that recipients may not require the forfeiture of parental rights for the child to receive services.

Web, Mobile, and Kiosk Accessibility

Websites, mobile applications, and self-service kiosks are increasingly used to deliver health and human services programs and activities. As telehealth and the use of these technologies increases, it is critical to ensure they are readily accessible to and usable by individuals with disabilities. HHS defines what accessibility means for websites and mobile applications and finalized the specific requirements for accessibility using the same standards recently published by the Department of Justice under Title II of the Americans with Disabilities Act.

The finalized policies include adoption of the Web Content Accessibility Guidelines (WCAG) version 2.1 as the technical standard for web and mobile app accessibility under section 504. This will require content to be accessible to individuals with disabilities whether it is located on a provider’s own website, or elsewhere on the web including social media platforms. The new regulations go into specific detail on the requirements for compliance in various scenarios. Additionally, HHS clarifies that recipients have an ongoing obligation to make their web content and applications compliant beginning two years after publication of the final rule.[2]  This will allow recipients time to become familiar with these new requirements.

Accessible Medical Equipment 

Inaccessible medical equipment can cause barriers in accessing medical care for individuals with disabilities. Inaccessible medical equipment can include exam tables, dental chairs, radiological diagnostic equipment, scales, and rehabilitation equipment. For example, exam tables that are not height adjustable, mammography machines that require a person to stand, and weight scales that do not accommodate wheelchairs lead to discrimination in access to care for individuals with disabilities.

HHS finalized the proposals without modification to add a new subpart J to the section 504 regulation to address this challenge. The final rule is largely based on the U.S. Access Board’s Standards for Accessible Medical Diagnostic Equipment (MDE Standards). The final rule also requires providers using an examination table have at least one accessible exam table, and those using a weight scale have at least one accessible weight scale (within 2 years of the rule’s effective date).

Integration

Current regulation requires recipients of Federal funds and public entities to administer programs and activities in the most integrated setting appropriate to the needs of the person with a disability (known as the “integration mandate”). HHS finalized the update to regulation 504 to reflect court decisions that require a recipient of Federal financial assistance to administer a program or activity in the most integrated setting appropriate to the needs of a qualified person with a disability. Administering a program or activity in a manner that results in unnecessary segregation of persons with disabilities would constitute discrimination. In the final rule, in response to comments, HHS provides examples of “segregated settings” as including but not limited to congregate settings that are populated primarily with individuals with disabilities and may be characterized by a lack of privacy or autonomy, or policies or practices limiting visitors or limiting individuals’ ability to manage their own daily living.[3]

HHS IMPROVES CONSISTENCY WITH AMERICAN WITH DISABILITIES ACT

Since Section 504 was enacted, major legislative and judicial developments have shifted the legal landscape of disability discrimination. HHS finalized a number of changes to reflect statutory amendments to the Rehabilitation Act, legislation such as the ADA, the ADAAA, and the Affordable Care Act, and significant court cases. The highlights of the finalized changes, primarily related to the ADA, are summarized below.

To ensure consistency with the ADA, HHS finalized the following sections that mirror ADA provisions:

• Service animals: Recipients must permit the use of service dogs by individuals with disabilities, and the individual must be permitted to be accompanied by their service dog in all areas of a facility where they would otherwise be allowed to go. No animals other than dogs qualify as service animals (though there are separate protections for miniature horses), and the dog must be individually trained to perform tasks directly related to their companion’s disability. Providing emotional support or comfort does not qualify as a task under this provision. Attack dogs or dogs with protection training are not considered service animals. The recipient is never responsible for the care of the service animal, and protections do not extend to service animals that are out of control or not housebroken.
• Maintenance of accessible features: Recipients must maintain the features of facilities and equipment that are required to preserve access for individuals with disabilities. Temporary obstructions and isolated instances of mechanical failure do not violate section 504 if recipients do not allow these issues to persist beyond a reasonable period, and as long as these failures or obstructions are not part of a pattern of improper maintenance.
• Personal devices and services:  The provision of personal devices and services is not required under section 504 unless they are customarily provided to individuals without disabilities as part of the recipient’s programs or activities. OCR specifically identifies hospitals, nursing homes, child welfare services, and home and community-based care as Department funded programs that customarily provide personal devices and services and therefore should also provide these devices and services to persons with disabilities.
• Mobility devices: Recipients must permit individuals with disabilities to use any mobility device powered by batteries, fuel, or other engines in all areas where the public is allowed to go unless it can be demonstrated that the mobility device poses a safety risk. For example, a facility could restrict the use of certain mobility devices during certain hours or on particular days when pedestrian traffic is dense, creating a safety risk.
• Retaliation and coercion:  Recipients cannot discriminate against an individual due to a complaint or objection to any act or practice made unlawful by Section 504 or discriminate against any individual assisting with or encouraging the complaint or objection. This protection covers all investigations or proceedings initiated under Section 504, regardless of their results.

• Communications: Recipients must provide alternative means of communication, such as braille translation or qualified interpreters, to individuals who are blind, deaf, have low vision, or are hard of hearin OCR also finalized the proposal to remove an exemption to these requirements in Section 84.52(d). The section gives recipients with less than 15 employees a possible exemption to the requirement to provide auxiliary aids.

HHS has also finalized the following sections which are similar to language in the ADA:

• Direct threat: Exclusion of a person with disabilities from programs based on concerns that they pose a risk to others can violate section 504 unless the recipient provides current, objective evidence that the individual pose[s] “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services.”[4] This “direct threat” language reflects significant U.S. Supreme Court decisions interpreting section 504 regulations.[5]
• Illegal use of drugs:  The rule generally excludes individuals currently engaged in illegal drug use from nondiscrimination requirements. Individuals currently using illegal drugs cannot be denied access to certain services, such as health, drug, or vocational rehabilitation services if they are otherwise entitled to these services.[6]
• Standards: HHS finalized that new facilities or alteration to existing facilities must be compliant with the 2010 Standards for Accessible Design. These standards are currently used in the ADA and form the basis of many building codes in the private sector and state and local government.
• Limitations: A recipient may be exempt from the integration requirement to provide services in the most integrated setting appropriate for the needs of an individual if they can prove that the requested modifications would fundamentally alter the nature of the program or activity or result in undue financial and administrative burdens.

********

This Applied Policy® Summary was prepared by April Gutmann with support from the Applied Policy team of health policy experts. If you have any questions or need more information, please contact her at agutmann@appliedpolicy.com or at (202) 820-7383.

[1] 89 FR 40066; p. 40083

[2] Recipients with less than 15 employees will have three years to comply with these requirements.

[3] 89 FR 40066; pg. 40119

[4] 89 FR 40066; pg. 40183

[5] School Board of Nassau County v. Arline

[6] Refers to services provided under the Rehabilitation Act subchapters I (Vocational Rehabilitation Services), II (Research and Training), and III (Professional Development and Special Projects and Demonstrations)