On September 14, 2023, the U.S. Department of Health and Human Services (“HHS”) published a proposed rule updating Section 504 of the Rehabilitation Act of 1973 (“Section 504”). The new rule entitled Discrimination on the Basis of Disability in Health and Human Service Programs or Activities(the “Proposed Rule”) is the first major regulatory update to Section 504 in nearly 50 years. Section 504 prohibits discrimination against individuals on the basis of disability in programs and activities that receive Federal financial assistance (“FFA”) or are conducted by a Federal agency. Section 504 covers all health care and human services programs and activities funded by HHS, from providers, like hospitals and doctors that accept Medicare or Medicare, to state child welfare programs, as well as Medicare Advantage Plans, and Medicaid Managed Care Plans.
In a press release, HHS Secretary Xavier Becerra described the Proposed Rule as “advanc[ing] justice for people with disabilities and help[ing] ensure they are not subjected to discrimination under any program or activity receiving funding from HHS just because they have a disability.” HHS is proposing to amend the regulation to clarify the obligations imposed on programs and activities that receive FFA, and to improve consistency with the Americans with Disabilities Act of 1990 (the “ADA”), the ADA Amendments Act of 2008 (the “ADAAA”), amendments to the Rehabilitation Act, and significant case law.
Comments may be submitted until November 13, 2023. If you have any questions about the proposed rule, or if you need assistance in submitting comments to HHS, please reach out to any of the authors of this post.
New Provisions Addressing Discrimination on the Basis of Disability Under Section 504
The Proposed Rule clarifies the application of Section 504 in several key areas highlighted below.
- Medical treatment. To combat disability discrimination in medical treatment, the Proposed Rule would explicitly prohibit disability-based discrimination in the context of health, welfare, and other social services, underscoring that the prohibition broadly applies to medical treatment decisions made by recipients of FFA. These include, for example, decisions about life-sustaining treatment, organ transplantation, rationing care in emergencies, and other vital medical decisions.
- 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. The Proposed Rule prohibits the use of value assessment methods that place a lower value on life-extension for individuals with disabilities when that method is used to limit access or to deny aids, benefits, and services.
- Child welfare programs and activities. The Proposed Rule 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 as where recipients are 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.
- Web and mobile accessibility. The Proposed Rule defines what accessibility means for web and mobile applications and sets forth specific technical standards for compliance with Section 504, using the same standards set forth in a recently proposed rule from the Department of Justice (the “DOJ”) under Title II of the Americans with Disabilities Act.
- Accessible medical equipment. The Proposed Rule adopts the U.S. Access Board’s accessibility standards for medical equipment to address equipment-related barriers such as exam tables that are inaccessible because they are not height-adjustable, weight scales that cannot accommodate people in wheelchairs, and mammogram machines that require an individual to stand to use them.
- Integration. The Proposed Rule clarifies obligations to provide services in the most integrated setting appropriate to a person’s needs.
New & Revised Provisions to Ensure Consistency with Statutory Changes, Supreme Court Rulings, and Other Case Law
The Proposed Rule also seeks to incorporate changes that are necessary to reflect developments that have occurred in the fifty years since Section 504’s passage, including amendments to Section 504, the enactment of the ADA and the ADAAA, and significant case law. The Rehabilitation Act (which includes Section 504), the ADA, and the ADAAA are closely linked, and courts have generally interpreted Section 504 consistently with Title II of the ADA. Because of this, the Proposed Rule seeks to create parity between Section 504 and the ADA and ADAAA to add clarity to Section 504’s application and scope.
Most significant among the changes are revisions to the definition of “disability” to bring Section 504 in line with the ADAAA, which sought to ensure that the term “disability” – in both the ADA and the Rehabilitation Act – would be “construed broadly in favor of expansive coverage” to the maximum extent possible. The proposed definition states that, with respect to an individual, disability means “(i) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (ii) a record of such an impairment; or (iii) being regarded as having such an impairment as described in paragraph (f) of this section.” The Proposed Rule would permit an individual to establish coverage using any of these three prongs.
In light of the COVID-19 public health emergency and following 2021 guidance from HHS and the DOJ, the Proposed Rule would add “long COVID” to the list of physical and mental impairments which may qualify an individual as having a disability. The Proposed Rule also significantly expands the list of major life activities to be considered in determining whether a person has a disability and states that the term “major” “should not be interpreted strictly.”
Lastly, to maintain consistency with the ADA, the Proposed Rule seeks to add new subparts to 45 C.F.R. Part 84, Nondiscrimination on the Basis of Handicap in Programs or Activities Receiving Federal Financial Assistance. The new subparts (Subpart G – General Requirements and Subpart H – Communications) would include, for example, new sections on retaliation or coercion, personal services and devices, service animals, and communications.