HHS Issues New Proposed Rule to Strengthen Prohibitions Against Discrimination on the Basis of a Disability in Health Care and Human Services Programs

Posted in RESOURCES

Mary Madison, RN, RAC-CT, CDP
Clinical Consultant – Briggs Healthcare

The Biden-Harris Administration is taking further action on its commitment to promote access to health care and human services for persons with disabilities. Today (September 7, 2023), the U.S. Department of Health and Human Services (HHS), through its Office for Civil Rights (OCR), announced a proposed rule that prohibits discrimination on the basis of disability.  The rule, Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance, updates critical provisions that help persons with disabilities access health and human services under Section 504 of the Rehabilitation Act of 1973.  The rule, originally published in 1977, advances the promise of the Rehabilitation Act and helps to ensure that people with disabilities are not subjected to discrimination in any program or activity receiving funding from HHS just because they have a disability. 

“It’s 2023, yet for many Americans accessing basic health needs is still challenging.  Some persons with disabilities may have to drive hours to get an accessible mammogram or receive the benefit and advancements of our health care system.  This historic proposed rule will advance justice for people with disabilities and help ensure they are not subjected to discrimination under any program or activity receiving funding from HHS just because they have a disability,” said Secretary Xavier Becerra. “We celebrate the inclusion and access promoted by this landmark civil rights law for people with disabilities, by taking action in this proposed regulation to clarify and strengthen the protections afforded by Section 504, reflecting over fifty years of advocacy by the disability community.”

“While we have made significant progress since Section 504 was signed into law nearly 50 years ago, there is more work for us all to live up its promise to the American people,” said HHS Office for Civil Rights (OCR) Director Melanie Fontes Rainer. “Today’s rule is long overdue and a major step forward in the fight to ensure that people with disabilities are not excluded from or discriminated against in health care and social services across the United States.  Once again, the Biden-Harris Administration is making clear that we must do better and stand up to improve equitable access to health care, free of discrimination.”

“Freedom from disability-based discrimination is a civil right—and in health and human services programs it can be a matter of life and death,” said HHS General Counsel Samuel Bagenstos.  “My office has been privileged to support the Office for Civil Rights as it worked to propose the most comprehensive update to our regulations implementing Section 504 since then-Secretary Califano signed the original 504 regulations in 1977.”

“The COVID-19 pandemic shone a spotlight on the discrimination that too many people with disabilities continue to face, from denial of medical treatment due to ableism, to inaccessible medical equipment and websites, to having no choice but to receive services in institutional settings,” said Alison Barkoff, who leads the Administration for Community Living. “ACL is pleased to have collaborated with the Office for Civil Rights to ensure the rule addresses the most pressing issues and priorities of the disability community.”

Section 504 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. Since the law was enacted, major legislative and judicial developments have shifted the legal landscape of disability discrimination under Section 504.

HHS is proposing to amend the regulations to update them and clarify obligations in several crucial areas not explicitly addressed in the current regulations, and to improve consistency with the Americans with Disabilities Act, the Americans with Disabilities Amendments Act, amendments to the Rehabilitation Act, and significant case law.

This Notice of Proposed Rulemaking (NPRM) clarifies the application of Section 504 to several critical areas. The proposed rule:

  • Ensures that medical treatment decisions are not based on biases or stereotypes about individuals 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;
  • Clarifies obligations for web, mobile, and kiosk accessibility;
  • Establishes enforceable standards for accessible medical equipment;
  • Clarifies requirements in HHS-funded child welfare programs and activities;
  • 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.
  • Clarifies obligations to provide services in the most integrated setting appropriate to the needs of individuals with disabilities.

While the Department is undertaking this rulemaking the current regulation is in effect. If you believe that you or another party has been discriminated against on the basis of race, color, national origin, sex, age, or disability, visit the OCR complaint portal to file a complaint online at: https://www.hhs.gov/civil-rights/filing-a-complaint/index.html.

HHS encourages all stakeholders to submit comments through regulations.gov.

Public comments on the NPRM are due 60 days after publication of the NPRM in the Federal Register. The NPRM may be viewed or downloaded at the Federal Register:  https://www.federalregister.gov/public-inspection/2023-19149/discrimination-on-the-basis-of-disability-in-health-and-human-service-programs-or-activities.

A fact sheet on the NPRM is available at: https://www.hhs.gov/civil-rights/for-individuals/disability/section-504-rehabilitation-act-of-1973/fact-sheet/index.html.

The Fact Sheet is available in the following languages:

HHS will host a webinar on the NPRM on September 11, 2023, at 1-1:45 pm ET. Register here: https://hhsacl.zoomgov.com/webinar/register/WN_cbLO2lobQzecAJBkLKbP_A. 

The Department will also be conducting a Tribal consultation meeting on October 6, 2023, from 2:00 p.m. to 4:00 p.m. Eastern Daylight Time. To participate, you must register in advance at: https://www.zoomgov.com/meeting/register/vJIsceGqpzsjEwi5AQ8pvdIholm7Xp4hwLs.