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 regulation is named Discrimination on the basis of disability in health and human services programs or activities(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, such as hospitals and doctors that accept Medicare or Medicare, to benefit programs state children, as well as Medicare Advantage Plans and Medicaid Managed Care Plans.
In a press release, HHS Secretary Xavier Becerra described the Proposed Rule as a top priority.[ing] disability justice and assistance[ing] ensure they are not discriminated against in any program or activity receiving funds from HHS solely because of their disability. HHS is proposing to amend the regulations to clarify the obligations applicable to programs and activities receiving FFA and to improve consistency with the Americans with Disabilities Act of 1990 (ADA), Amendments Act ADA of 2008 (ADAAA), amendments to the Rehabilitation Act, and key case law.
Comments can 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 contact any of the authors of this post.
The new provisions address disability discrimination under Section 504
The Proposed Rule clarifies the application of Section 504 in several key areas outlined below.
- Medical treatment. To combat disability discrimination in medical treatment, the Proposed Rule would prohibit discrimination on the basis of disability in the context of health, welfare, and social services other, emphasizing that the prohibition applies broadly to medical treatment decisions made by FFA recipients. For example, they include decisions about life-sustaining treatment, organ transplantation, emergency ration care, and other important medical decisions.
- Value assessment methods To determine whether a particular intervention, such as a medication or treatment, is being provided and under what circumstances, healthcare organizations often use a variety of methods to assess whether the benefits of the intervention outweigh the costs. The Proposed Rule prohibits the use of methods of assessing the value of a lower value for extending the life of a person with a disability when that method is used to limit access or deny assistance, 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 that children, their parents, caregivers, foster parents, and prospective parents with disabilities face, such as when the recipient uses the presence of a disabled person or an individual. IQ scores alone are a reason to remove a child, ban parents with disabilities as foster parents or failing to place children with disabilities who need services into the most inclusive settings appropriate to their needs.
- Web and mobile accessibility. The Proposed Rule defines the meaning of accessibility for web and mobile applications and sets forth specific technical standards for compliance with Section 504, using the same standards set forth in recently proposed rule by the Department of Justice (DOJ) under U.S. Title II to the Individuals with Disabilities Act.
- Medical equipment is accessible. The proposed rule adopts the US Accessibility Panel accessibility standards for medical devices to address device-related barriers, such as exam tables that are inaccessible because The height cannot be adjusted, the weight cannot accommodate someone in a wheelchair, and the mammogram machines require the individual to stand to use them.
- Integration. The Proposed Rule clarifies the obligation to provide services in the most integrated setting appropriate to a person’s needs.
New and amended provisions to ensure consistency with statutory changes, Supreme Court decisions and other case law
The Proposed Rule also sought to incorporate changes necessary to reflect developments that have occurred in the 50 years since the passage of Section 504, including the amendments to Section 504, the enactment of the ADA and ADAAA as well as important case law. The Rehabilitation Act (including Section 504), the ADA, and the ADAAA are closely interconnected, and courts have generally interpreted Section 504 consistently with Title II of the ADA. For this reason, the Proposed Rule sought to create parity between Section 504 and the ADA and ADAAA to further clarify the scope and application of Section 504.
Most significant among the changes is the revision of the definition of disability to bring Section 504 into conformity with the ADAAA, ensuring that the term disability in both the ADA and the Rehabilitation Act will be broadly understood under direction that is beneficial for expanding the scope to the maximum extent. Possible range. The proposed definition states that, for an individual, disability means (i) a physical or mental impairment that substantially limits one or more major life activities of the individual there; (ii) records of such impairment; or (iii) is considered defective as described in paragraph (f) of this section. The Proposed Rule would allow an individual to establish coverage by use any of these three spearheads.
Due to the COVID-19 public health emergency and in accordance with 2021 guidance from HHS and DOJ, the Proposed Rule would add long COVID illness to the list of physical and mental impairments may cause an individual to be considered disabled. The Proposed Rule also significantly expands the list of major life activities that should be considered when determining whether a person has a disability and clarifies that technical terms should not be interpreted strictly. strict.
Finally, to maintain consistency with the ADA, the Proposed Rule sought to add new subparts to 45 CFR Part 84, Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Assistance Federal Financial Aid. The new subparts (General Requirements of Part G and Communications Part of Part H) will include, for example, new sections on retaliation or coercion, personal services and devices, and service animals and contact information.
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