[Federal Register Volume 88, Number 177 (Thursday, September 14, 2023)]
[Proposed Rules]
[Pages 63392-63512]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-19149]
[[Page 63391]]
Vol. 88
Thursday,
No. 177
September 14, 2023
Part III
Department of Health and Human Services
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45 CFR Part 84
Discrimination on the Basis of Disability in Health and Human Service
Programs or Activities; Proposed Rule
Federal Register / Vol. 88, No. 177 / Thursday, September 14, 2023 /
Proposed Rules
[[Page 63392]]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
45 CFR Part 84
RIN 0945-AA15
Discrimination on the Basis of Disability in Health and Human
Service Programs or Activities
AGENCY: Office for Civil Rights (OCR), Office of the Secretary, HHS.
ACTION: Proposed rule.
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SUMMARY: The Department of Health and Human Services (HHS or the
Department) is committed to protecting the civil rights of individuals
with disabilities under section 504 of the Rehabilitation Act of 1973
(section 504). To implement the prohibition of discrimination on the
basis of disability, the Department proposes to update and amend its
section 504 regulation. The proposed rule would add new provisions that
clarify existing requirements under section 504 prohibiting recipients
of financial assistance from the Department (recipients) from
discriminating on the basis of disability in their programs and
activities, including in health care, child welfare, and other human
services. The proposed rule includes new requirements prohibiting
discrimination in the areas of medical treatment; the use of value
assessments; web, mobile, and kiosk accessibility; and requirements for
accessible medical equipment, so that persons with disabilities have an
opportunity to participate in or benefit from health care programs and
activities that is equal to the opportunity afforded others. It also
adds a section on child welfare to expand on and clarify the obligation
to provide nondiscriminatory child welfare services. The proposed rule
would also update the definition of disability and other provisions to
ensure consistency with statutory amendments to the Rehabilitation Act,
enactment of the Americans with Disabilities Act and the Americans with
Disabilities Amendments Act of 2008, the Affordable Care Act, as well
as Supreme Court and other significant court cases. It also further
clarifies the obligation to provide services in the most integrated
setting. Finally, the proposed rule would make other clarifying edits,
including updating outdated terminology and references.
DATES:
Comments: Submit comments on or before November 13, 2023.
Meeting: Pursuant to Executive Order 13175, Consultation and
Coordination with Indian Tribal Governments, the Department of Health
and Human Services' Tribal Consultation Policy, and the Department's
Plan for Implementing Executive Order 13175, the Office for Civil
Rights solicits input by tribal officials as we develop the
implementing regulations for section 504 of the Rehabilitation Act of
1973 at 45 CFR part 84. The Tribal consultation meeting will be held on
October 6, 2023 from 2 p.m. to 4 p.m. Eastern Time.
ADDRESSES:
Meeting: To participate in the Tribal consultation, you must
register in advance at https://www.zoomgov.com/meeting/register/vJIsceGqpzsjEwi5AQ8pvdIholm7Xp4hwLs.
Comments: You may submit comments to this proposed rule, identified
by RIN 0945-AA15, by any of the following methods. Please do not submit
duplicate comments.
Federal eRulemaking Portal. You may submit electronic comments at
http://www.regulations.gov by searching for the Docket ID number HHS-
OCR-2023-0013. Follow the instructions at http://www.regulations.gov
online for submitting comments through this method.
Regular, Express, or Overnight Mail: You may mail comments to U.S.
Department of Health and Human Services, Office for Civil Rights,
Attention: Disability NPRM, RIN 0945-AA15, Hubert H. Humphrey Building,
Room 509F, 200 Independence Avenue SW, Washington, DC 20201.
All comments sent by the methods and received or officially
postmarked by the due date specified above will be posted without
change to content to http://www.regulations.gov, including any personal
information provided, and such posting may occur before or after the
closing of the comment period.
We will consider all comments received or officially postmarked by
the date and time specified in the DATES section above, but, because of
the large number of public comments we normally receive on Federal
Register documents, we are not able to provide individual
acknowledgements of receipt.
Please allow sufficient time for mailed comments to be timely
received in the event of delivery or security delays. Electronic
comments with attachments should be in Microsoft Word or Portable
Document Format (PDF).
Please note that comments submitted by fax or email, and those
submitted or postmarked after the comment period, will not be accepted.
Docket: For complete access to background documents or posted
comments, go to http://www.regulations.gov and search for Docket ID
number HHS-OCR-2023-0013.
FOR FURTHER INFORMATION CONTACT: Molly Burgdorf, Office for Civil
Rights, Department of Health and Human Services at (202) 545-4884 or
(800) 537-7697 (TDD), or via email at [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. Purpose and Relevant Law
B. Summary of the Proposed Rule
II. Reasons for the Proposed Rulemaking
III. Nondiscrimination in Programs and Activities
A. New Provisions Addressing Discrimination on the Basis of
Disability Under Section 504
Medical Treatment (Sec. 84.56)
Value Assessment Methods (Sec. 84.57)
Children, Parents, Caregivers, Foster Parents, and Prospective
Parents in the Child Welfare System (Sec. 84.60)
Subpart I: Web, Mobile, and Kiosk Accessibility (Sec. Sec.
80.82-80.88)
Subpart J: Accessible Medical Equipment (Sec. Sec. 84.90-84.94)
B. Revised Provisions Addressing Discrimination and Ensuring
Consistency With Statutory Changes, Supreme Court, and Other Case
Law
Purpose and Broad Coverage (Sec. 84.1): Revisions to Subpart A
Application (Sec. 84.2): Revisions to Subpart A
Relationship to Other Laws (Sec. 84.3): Revisions to Subpart A
Definition of Disability (Sec. 84.4): Revisions to Subpart A
Notice (Sec. 84.8): Revisions to Subpart A
Definitions (Sec. 84.10): Revisions to Subpart A
Employment Practices (Sec. 84.16): Revisions to Subpart B
Program Accessibility (Sec. Sec. 84.21-84.23): Revisions to
Subpart C
Childcare, Preschool, Elementary and Secondary, and Adult
Education (Sec. Sec. 84.31, 84.38): Revisions to Subpart D
Health, Welfare, and Social Services (Sec. Sec. 84.51-84.55):
Revisions to Subpart F
Subpart G: General Requirements
General Prohibitions Against Discrimination (Sec. 84.68)
Illegal Use of Drugs (Sec. 84.69)
Maintenance of Accessible Features (Sec. 84.70)
Retaliation or Coercion (Sec. 84.71)
Personal Services and Devices (Sec. 84.72)
Service Animals (Sec. 84.73)
Mobility Devices (Sec. 84.74)
Direct Threat (Sec. 84.75)
Integration (Sec. 84.76)
Subpart H: Communications (Sec. Sec. 84.77-84.81)
Subpart K: Procedures (Sec. 84.98)
IV. Executive Order 12866 and Related Executive Orders on Regulatory
Review
Regulatory Impact Analysis Summary
Regulatory Flexibility Act--Initial Small Entity Analysis
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Executive Order 13132: Federalism
Paperwork Reduction Act
National Technology Transfer and Advancement Act of 1995
Executive Order 12250 on Leadership and Coordination of
Nondiscrimination Laws
V. Effective Date
VI. Request for Comment
I. Background
A. Purpose and Relevant Law
Section 504 prohibits discrimination on the basis of disability in
programs and activities \1\ that receive Federal financial assistance
as well as in programs and activities conducted by any Federal
agency.\2\ Section 504 provides:
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\1\ The statutory text of section 504 explains that ``program or
activity'' means ``all of the operations of'' an agency. 29 U.S.C.
794(b)(1)(A). The term ``programs and activities'' is therefore
intended to cover the same types of operations that are covered
under title II of the Americans with Disabilities Act (ADA).
\2\ 29 U.S.C. 794.
No otherwise qualified individual with a disability in the
United States, as defined in Section 705(20) of this title, shall,
solely by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal
financial assistance or under any program or activity conducted by
any Executive agency or by the United States Post Office.\3\
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\3\ Id.
The Office for Civil Rights (OCR) in HHS enforces section 504 as
well as two other statutes that prohibit discrimination on the basis of
disability. Title II of the Americans with Disabilities Act (ADA)
prohibits discrimination on the basis of disability in, among other
areas, all health care and social services programs and activities of
State and local government entities.\4\ OCR also enforces section 1557
(section 1557) of the Patient Protection and Affordable Care Act
(ACA),\5\ which prohibits discrimination on various bases including
disability in any health program or activity, any part of which
receives Federal financial assistance, including credits, subsidies, or
contract of insurance or under any program or activity that is
administered by an Executive Agency or any entity established under
Title I of the ACA.\6\
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\4\ 42 U.S.C. 12132 (``. . . no qualified individual with a
disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of services, programs, or
activities of a public entity, or be subjected to discrimination by
any such entity''). The ADA regulations generally designate HHS as
the agency with responsibility for investigating complaints of
discrimination in ``programs, services, and regulatory activities
relating to the provision of health care and social services.'' 28
CFR 35.190(b)(3). With respect to employment, the standards
contained in title I of the ADA apply to determinations of
employment discrimination under section 504. Title I of the ADA
provides, ``No covered entity shall discriminate against a qualified
individual on the basis of disability in regard to job application
procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, conditions,
and privileges of employment.'' 42 U.S.C. 12112. Title II entities
are also obligated to fulfill the ADA's title I requirements in
their capacity as employers, which are distinct from their
obligations under this rule.
\5\ 42 U.S.C. 18116.
\6\ In its Notice of Proposed Rulemaking on regulations
implementing Section 1557 of the Affordable Care Act, 45 CFR pt. 92,
the Department has proposed to revise its interpretation that
``Federal financial assistance'' does not include Medicare Part B,
and to make conforming necessary amendments to the appendices of
regulations implementing both Title VI of the Civil Rights Act and
section 504. 87 FR 47824, 47828 (Aug. 4, 2022). Those proposed
changes are not separately addressed in this rule.
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Congress passed the Rehabilitation Act in 1973, and what was then
the U.S. Department of Health, Education, and Welfare (HEW) issued
regulations to implement section 504 in 1977.\7\ In the more than 40
years since, major legislative and judicial developments have shifted
the legal landscape of disability discrimination protections under
section 504. These developments include multiple statutory amendments
to the Rehabilitation Act, the enactment of the ADA and ADA Amendments
Act of 2008 (ADAAA), the ACA, and Supreme Court and other significant
court cases. It is crucial that section 504 be interpreted consistently
with these developments and laws to ensure conformity with current law
and to protect against discrimination on the basis of disability. To
provide that clarity, the Department proposes amendments to its
existing section 504 regulation on nondiscrimination obligations for
recipients of Federal financial assistance (part 84).
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\7\ In 1980, Congress reorganized HEW into several Federal
agencies including the Department of Health and Human Services and
the Department of Education. The existing section 504 regulations of
HEW continued in place with HHS.
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In addition, since section 504 also covers programs and activities
conducted by the Department, the Department intends to publish a
separate rulemaking to update its existing federally conducted
regulation, which has not been amended since it was enacted in 1998
(part 85).\8\
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\8\ 45 CFR pt. 85.
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B. Summary of the Proposed Rule
The Department proposes to amend its existing regulation
implementing section 504 for federally assisted programs and activities
to address the obligations of recipients of Federal financial
assistance to comply with section 504 across a variety of contexts. The
proposed rule clarifies the application of section 504 to several areas
not explicitly addressed through the existing regulation, including
medical treatment decisions; the use of value assessments; web, mobile,
and kiosk accessibility; and accessible medical equipment. The proposed
rule also expands on and clarifies the requirements in the current
regulation applicable to federally funded child welfare programs and
activities.
In addition, the Department proposes to update pertinent provisions
throughout the rule to promote consistency with title II of the ADA and
the corresponding U.S. Department of Justice (DOJ) ADA regulations. The
proposed rule will add the following new sections to the section 504
regulations that track the ADA regulations: definition of
``disability,'' notice, maintenance of accessible features, retaliation
and coercion, personal devices and services, service animals, mobility
devices, and communications. The proposed rule also contains the
following sections that are similar to the ADA regulations: purpose and
broad coverage, definitions, general prohibitions against
discrimination, program accessibility, illegal use of drugs, direct
threat, and integration. The proposed rule will also provide more
detailed standards on the obligation to provide programs and activities
in the most integrated setting appropriate and will make non-
substantive clarifying edits, including updating outdated terminology
and references and omitting obsolete regulatory sections.
Section 504 and the ADA are generally understood by courts to
impose similar requirements. Moreover, the vast majority of recipients
have been covered by either title II of the ADA (State and local
government entities) or title III of the ADA (certain private entities)
since 1991. Therefore, the rule proposes to adopt ADA language in
appropriate circumstances. Doing so will allow for greater public
understanding and ease of compliance by regulated entities.
II. Reasons for the Proposed Rulemaking
The Department is issuing this proposed rule to address
discrimination on the basis of disability by recipients of HHS
financial assistance.\9\ The
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proposed regulation offers clear and specific requirements to help
recipients and beneficiaries better understand their rights and
responsibilities under section 504. In the years since HEW first
promulgated its section 504 regulation, it has rarely been amended,
with the most recent amendment occurring in 2005.\10\ The proposed rule
addresses developments in statutory and case law regarding disability
discrimination. To promote voluntary compliance with the law, we
provide further clarity and elaboration to the legal standards.
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\9\ The Department notes that on January 15, 2021, OCR posted on
its website a Request for Information (RFI) addressing a number of
disability discrimination issues under part 84 of section 504. The
RFI was later withdrawn, without being published in the Federal
Register. OCR subsequently received letters urging HHS to address
the issues in the RFI.
\10\ Amendments to the section 504 regulations over time have
included changes such as addressing the withholding of medical care
from infants with disabilities (changes that the Supreme Court
invalidated in Bowen v. Amer. Hosp. Ass'n, 476 U.S. 610 (1986));
changes to the accessible building standards; and changes to the
definition of ``program or activity'' to conform to the Civil Rights
Restoration Act of 1987.
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Furthermore, the proposed rule is consistent with the goals and
objectives of several recent Executive Orders that address equitable
access to benefits and services for underserved populations. As
detailed below, people with disabilities have historically been
underserved by, denied equitable access to, or excluded from health
programs and activities. Executive Order 14035 (Advancing Diversity,
Equity, Inclusion, and Accessibility Across the Federal Government) and
Executive Order 13985 (Advancing Racial Equity and Support for
Underserved Communities Through the Federal Government) explicitly
describe people with disabilities as an underserved community and
priority population for Federal policy intervention. The rulemaking is
also consistent with Executive Order 14009 (Strengthening Medicaid and
the Affordable Care Act), which requires agencies with authorities and
responsibilities related to Medicaid and the ACA to review existing
regulations to ensure they promote equitable access to high-quality
health care accessible and affordable for every American, including
reviewing policies or practices that may undermine protections for
people with pre-existing conditions, including complications related to
COVID-19, under the ACA. Finally, this rulemaking is consistent with
Executive Order 14070 (Continuing to Strengthen Americans' Access to
Affordable, Quality Health Coverage), which directs the Department to
examine policies or practices that strengthen benefits and improve
access to health care providers.
People with disabilities are often excluded from health programs
and activities and denied an equal opportunity to participate in and
benefit from quality health care.\11\ That discrimination contributes
to significant health disparities and poorer health outcomes than
persons with disabilities would experience absent the
discrimination.\12\
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\11\ See, e.g., Elizabeth A. Courtney-Long et al., Socioeconomic
Factors at the Intersection of Race and Ethnicity Influencing Health
Risks for People with Disabilities, 4 J. of Racial and Ethnic Health
Disparities 213 (2017), https://doi.org/10.1007/s40615-016-0220-5;
Susan Havercamp et al., National Health Surveillance of Adults with
Disabilities, Adults with Intellectual and Developmental
Disabilities, and Adults with No Disabilities, 8 Disability & Health
J. 165 (2015), https://doi.org/10.1016/j.dhjo.2014.11.002; Lisa I.
Iezzoni et al., Have Almost Fifty Years of Disability Civil Rights
Laws Achieved Equitable Care?, 41 Health Affairs 1371 (2022),
https://doi.org/10.1377/hlthaff.2022.00413; Tara Lagu et al., `I Am
Not The Doctor For You': Physicians' Attitudes About Caring For
People With Disabilities, 41 Health Affairs 1387 (2022), https://doi.org/10.1377/hlthaff.2022.00475; Monika Mitra et al., (2022)
Advancing Health Equity and Reducing Health Disparities for People
with Disabilities in the United States, 41 Health Affairs 1379
(2022), https://doi.org/10.1377/hlthaff.2022.00499. Nat'l Council on
Disability, Health Equity Framework for People With Disabilities
(2022), https://www.ncd.gov/sites/default/files/NCD_Health_Equity_Framework.pdf; Nat'l Council on Disability, The
Current State of Health Care for People with Disabilities (2009).
\12\ See, e.g., Nat'l Council on Disability, Bioethics and
Disability Report Series (2019), https://ncd.gov/publications/2019/bioethics-report-series; Tara Lagu et al., The Axes of Access--
Improving Care Quality for Patients with Disabilities, 370 New Eng.
J. Med. 1847 (May 2014); Tara Lagu et al., Ensuring Access to Health
Care for Patients with Disabilities, 175 JAMA Internal Med. 157
(Dec. 2014); Tim Gilmer, Equal Health Care: If Not Now, When?, New
Mobility (July 2013), http://www.newmobility.com/equal-health-care-if-not-now-when; Gloria L. Krahn et al., Persons with Disabilities
as an Unrecognized Health Disparity Population, 105 Am. J. of Pub.
Health (Suppl 2) S198 (S198-S206) (2015); Kristi L. Kirschner et
al., Structural Impairments that Limit Access to Health Care for
Patients with Disabilities, 297 JAMA 1121 (2007).
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The National Council on Disability (NCD), an independent Federal
agency, has observed that ``[o]ne of the hallmarks of societal
attitudes toward disabilities has been a tendency of people without
disabilities to overestimate the negative aspects and underestimate the
positive features of the lives of those who have disabilities.'' \13\
Research in the field of health care supports this assertion.\14\ One
recent study demonstrates that large proportions of practicing U.S.
physicians appear to hold biased or stigmatized perceptions of people
with disabilities.\15\ The study found that many physicians perceive
that people with disabilities experience a lower quality of life
because of their disabilities--even though most individuals with
disabilities report that they experience an excellent or good quality
of life. Furthermore, only 40.7% of physicians surveyed were confident
of their ability to provide the same quality of care to patients with
disabilities and only 56.5% strongly agreed that they welcome patients
with disabilities into their practices.\16\ Flawed perceptions,
stereotypes, and biases about individuals with disabilities can lead to
prohibited discrimination.\17\
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\13\ Nat'l Council on Disability, Assisted Suicide: A Disability
Perspective (Mar. 24, 1997), https://ncd.gov/publications/1997/03241997.
\14\ See, e.g., Laura VanPuymbrouck, et al., Explicit and
Implicit Disability Attitudes of Healthcare Providers,
Rehabilitation Psych., 65(2) 2020, at 101-112; Stefanie Ames et al.,
Perceived Disability-Based Discrimination in Health Care for
Children With Medical Complexity, Pediatrics, 152(1) 2023, https://doi.org/10.1542/peds.2022-060975.
\15\ See Tara Lagu et al., `I Am not the Doctor For You':
Physicians' Attitudes about Caring for People with Disabilities, 41
Health Affairs 1387 (2022), https://doi.org/10.1377/hlthaff.2022.00475; Laura VanPuymbrouck et al., Explicit and
Implicit Disability Attitudes of Healthcare Providers,
Rehabilitation Psych., 65(2) 2020, at 101-112, https://doi.org/10.1037/rep0000317.
\16\ Lisa I. Iezzoni et al., Physicians' Perceptions of People
with Disability and their Health Care, 40 Health Aff. 297 (Feb.
2021), https://pubmed.ncbi.nlm.nih.gov/33523739/ (citing GL Albrecht
et al., The Disability Paradox: High Quality of Life Against All
Odds, 48 Soc. Sci. Med., 977 (1999)).
\17\ See, e.g., Lesley v. Chie, 250 F.3d 47, 55 (1st Cir. 1985)
(Physician's decision could be ``discriminatory on its face, because
it rested on stereotypes of the disabled rather than an
individualized inquiry into the patient's condition'').
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These issues are not limited to health care. For example, the NCD
2012 report, ``Rocking the Cradle: Ensuring the Rights of Parents with
Disabilities and Their Children,'' included research and accounts of
parents who had been treated unfairly because of their disabilities,
documenting persistent and systemic discrimination against parents with
disabilities whose children were involved with the child welfare
system.\18\ The Department is issuing this proposed regulation to offer
clear and specific requirements to help recipients better understand
their obligations under the law and to help individuals with
disabilities better understand their rights. The Department believes
this added clarity and transparency will support recipients in
providing programs and activities free of discrimination on the basis
of disability.
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\18\ Nat'l Council on Disability, Rocking the Cradle: Ensuring
the Rights of Parents with Disabilities and their Children (2012),
https://www.ncd.gov/sites/default/files/Documents/NCD_Parenting_508_0.pdf.
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This preamble will address first the new provisions being added to
the existing section 504 rule (Section III(A) in the Table of Contents
above)--medical treatment; value assessment; child welfare; web,
mobile, and kiosk accessibility; and accessible medical equipment--and
then will address the updated provisions (Section III(B) in the Table
of Contents). However, the text of the rule itself does not start with
the
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new provisions but, instead, follows in numerical order. This
explanation is being provided so that a reader can understand how the
order of this preamble corresponds to the text of the regulation.
Throughout this NPRM, the terms ``individual with a disability,''
``people with disabilities,'' and ``person with a disability'' are used
interchangeably. No substantive difference is intended.
III. Nondiscrimination in Programs and Activities
A. New Provisions Addressing Discrimination on the Basis of Disability
Under Section 504 Sec. 84.56 Medical Treatment
The Department funds a wide array of programs and activities in
which recipients make decisions regarding 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. Biases and stereotypes about the
impact of disability affect decisions in different contexts, including
diagnoses, day-to-day treatment decisions, emergency care decisions,
and the allocation of scarce medical resources in health crises.\19\
Recent experiences during the COVID-19 public health emergency further
illustrate the harms that discrimination can pose. In March 2020 NCD
observed that ``discrimination by medical practitioners who, through
ignorance of the law or due to the belief that people with disabilities
are less valuable, and therefore less deserving of medical care, than
those who are not'' resulted in ``people with chronic illnesses and
other disabilities [being] left behind, denied resources to survive,
and as a result, suffer[ing] great losses of life.'' \20\
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\19\ See, e.g., Donlon v. Hillsborough Cnty., No. 18-cv-549-LM,
2019 WL 2062436 (D.N.H. May 9, 2019) (granting Plaintiff's motion
under the ADA to amend her complaint alleging that she was denied
medical treatment and emergency care because she had been
stereotyped based on her mental illness. The court said that ``[t]he
facts alleged raise a plausible inference of such unreasonable care
that would imply pretext for a discriminatory motive.''); Pesce v.
Coppinger, 355 F. Supp. 3d 35, 47 (D. Mass. 2018) (granting
Plaintiff's motion under the ADA for a preliminary injunction
because the failure of the correctional facility to provide
methadone for opioid addiction ``is either `arbitrary or capricious
as to imply that it was a pretext for some `discriminatory motive'
or `discriminatory on its face,' '' (citing Kiman v. N.H. Dep't of
Corr., 151 F.3d 274, 285 (1st Cir. 2006); Sumes v. Andres, 938 F.
Supp. 9, 12 (D.D.C. 1996) (finding that there was no bona fide
medical reason for a physician's refusal to treat the plaintiff, the
court held that the ADA and section 504 had been violated because
the denial of treatment was based on deafness); Howe v. Hull, 874 F.
Supp. 779, 788-89 (N.D. Ohio 1994) (denying Defendant's motion for
summary judgment under the ADA because the refusal of the hospital
to admit the plaintiff for treatment was based on her HIV status).
\20\ Letter from Nat'l Council on Disability to Roger Severino,
Dir., U.S. Dep't of Health & Hum. Servs., Off. for Civil Rts.,
(March 18, 2020), https://ncd.gov/publications/2020/ncd-covid-19-letter-hhs-ocr.
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We propose to clarify the general prohibition on discrimination
against qualified individuals with disabilities in the medical
treatment context and elaborate on specific prohibitions in this
context. ``Medical treatment'' is used in this section in a generic,
nonspecific manner; it is intended to be broad and inclusive. It refers
to 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. It includes the use of a wide range of regimens for both
physical and mental conditions, interventions, or procedures, such as
surgery; the prescribing, dispensing, or management of medications;
exercise; physical therapy; rehabilitation services; and the provision
of durable medical equipment.
Throughout this section, the terms ``provider'' and ``medical
professional'' are sometimes used in place of ``recipient,'' which is
defined in Sec. 84.10.
Discrimination Against People With Disabilities in Medical Treatment
Although section 504 has prohibited discrimination in any program
or activity receiving Federal financial assistance since it was
enacted, discrimination continues to underpin health inequities faced
by people with disabilities.\21\ People with disabilities have reduced
access to medical treatment, a reality that leads to significant health
disparities and poorer health outcomes.\22\ People with disabilities
are significantly more likely than people without disabilities to have
unmet medical, dental, and prescription needs.\23\ Unmet health care
needs contribute to various indicators of health inequity: for example,
individuals with disabilities in the United States have a shorter
average life expectancy than people without disabilities and are three
times as likely to have heart disease, stroke, diabetes, or cancer than
adults without disabilities.\24\ People with certain types of serious
mental illness have a significantly shorter life expectancy than the
general population,\25\ and people with mental illness have an
increased risk of physical disease, as well as reduced access to
adequate health care.\26\ Pregnant people with disabilities receive
poorer maternity care, experience higher incidents of pregnancy and
birth-related complications, and are eleven times more likely to
experience maternal
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death than people without disabilities.\27\ People with physical
disabilities are less likely to receive mammograms, Pap smears, or
other recommended routine preventive screenings.\28\ People with
disabilities are also more likely to have risk factors associated with
cancer than people without disabilities.\29\ During the first year of
the COVID-19 pandemic, one-third of the individuals who died in the
United States were living in congregate settings, often to receive
necessary services and supports--the majority of whom were individuals
with disabilities.\30\ Adults with disabilities were also considerably
more likely than their peers without disabilities to either delay care
or not get needed medical care for health issues other than COVID-
19.\31\
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\21\ While this proposed section 504 regulation relates
specifically to disability discrimination, other categories of
discrimination, including discrimination on the basis of race,
color, national origin, sex (including pregnancy, sexual
orientation, and gender identity), and age, also impact the health
care system. Many of these forms of discrimination intersect with
disability discrimination, contributing to and at times exacerbating
the nature and extent of the harms people with disabilities
experience. In addition, many communities of color experience higher
rates of disability and health risks in the U.S. See, e.g., Centers
for Disease Control and Prevention, Adults with Disabilities:
Ethnicity and Race, https://www.cdc.gov/ncbddd/disabilityandhealth/materials/infographic-disabilities-ethnicity-race.html (last visited
Oct. 1, 2022).
\22\ See, e.g., Nat'l Council on Disability, Bioethics and
Disability Report Series (2019), https://ncd.gov/publications/2019/bioethics-report-series; Tara Lagu et al., The Axes of Access--
Improving Care Quality for Patients with Disabilities, 370 N. Engl.
J. Med. 1847 (May 2014); Tara Lagu et al., Ensuring Access to Health
Care for Patients with Disabilities, 175 JAMA Internal Med. 157
(Feb. 2015); Tim Gilmer, Equal Health Care: If Not Now, When?, New
Mobility (July 1, 2013), http://www.newmobility.com/equal-health-care-if-not-now-when; Gloria L. Krahn et al., Persons with
Disabilities as an Unrecognized Health Disparity Population, 105 Am.
J. of Public Health S198 (2015); Kristi L. Kirschner et al.,
Structural Impairments that Limit Access to Health Care for Patients
with Disabilities, 297 JAMA 1121 (Mar. 2007).
\23\ See, e.g., Elham Mahmoudi et al., Disparities in Access to
Health Care Among Adults with Physical Disabilities: Analysis of a
Representative National Sample for a Ten-Year Period, 8 Disability &
Health J. 182 (Apr. 2015), https://doi.org/10.1016/j.dhjo.2014.08.007; Stephen P. Gulley et al., Disability in Two
Health Care Systems: Access, Quality, Satisfaction, and Physician
Contacts among Working-Age Canadians and Americans with
Disabilities, 1 Disability & Health J. 196 (Oct. 2008).
\24\ Ctrs. for Disease Control & Prevention, Disability
Inclusion, https://www.cdc.gov/ncbddd/disabilityandhealth/disability-inclusion.html; Valerie Forman-Hoffman et al., Disability
Status, Mortality, and Leading Causes of Death in the United States
Community Population, 53(4) Medical Care 346 (Apr. 2015), https://pubmed.ncbi.nlm.nih.gov/25719432; Williams, M. et al., Exploring
Health Disparities Among Individuals with Disabilities within the
United States, Am. Pub. Health Ass'n. (Oct. 2020), https://apha.confex.com/apha/2020/meetingapp.cgi/Paper/473208; Nat'l Council
on Disability, Health Equity Framework for People with Disabilities
(2022), https://ncd.gov/sites/default/files/NCD_Health_Equity_Framework.pdf.
\25\ See, e.g., Andrea Fiorillo & Norman Sartorius, Mortality
Dap and Physical Comorbidity of People with Severe mental Disorders:
The Public Health Scandal Ann. Gen. Psychiatry 20, 52 (2021).
https://doi.org/10.1186/s12991-021-00374-y; Steve Brown et al.,
Twenty Five Year Mortality of a Community Cohort with Schizophrenia,
Br. J. Psychiatry (2010), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4560167/.
\26\ Joseph Firth et al., The Lancet Psychiatry Commission: A
Blueprint for Protecting Physical Health in People with Mental
Illness, The Lancet Psychiatry, Vol. 6, 675-712 (2019), https://doi.org/10.1016/S2215-0366(19)30132-4.
\27\ See, e.g., Jessica L. Gleason et al., Risk of Adverse
Maternal Outcomes in Pregnant Women with Disabilities, JAMA Network
Open (2021), https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2787181; Willi Horner-Johnson et al., Perinatal Health
Risks and Outcomes Among US Women with Self-Reported Disability, 41
Health Aff. 2011 (Sep. 2022), https://doi.org/10.1377/hlthaff.2022.00497.
\28\ Lisa Iezzoni et al., Associations Between Disability and
Breast or Cervical Cancers, Accounting for Screening Disparities,
Medical Care 139 (2021), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7855335/; see also, C. Brook Steele et al., Prevalence of Cancer
Screening Among Adults with Disabilities, United States, 2013.
Preventing Chronic Disease (2017), http://dx.doi.org/10.5888/pcd14.160312.
\29\ M.A. Nosek et al., Breast and Cervical Cancer Screening
Among Women with Physical Disabilities, 78 Archives of Physical
Medicine and Rehabilitation, S39 (1997), https://doi.org/10.1016/s0003-9993(97)90220-3; See also, Lisa Iezzoni, Cancer Detection,
Diagnosis, and Treatment for Adults with Disabilities, 23 Lancet
E164 (Apr. 2022), https://doi.org/10.1016/S1470-2045(22)00018-3.
\30\ Nat'l Council on Disability, The Impact of COVID-19 on
People with Disabilities, 87 (2021), https://ncd.gov/sites/default/files/NCD_COVID-19_Progress_Report_508.pdf.
\31\ Akobirshoev et al., Delayed Medical Care and Unmet Care
Needs Due to the COVID-19 Pandemic among Adults with Disabilities in
the US, 41 Health Aff. 1505 (Oct. 2022), https://doi.org/10.1377/hlthaff.2022.00509.
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Although many factors contribute to these health inequities,
discriminatory medical decisions--often driven by stereotypes about
disability--are a key factor. The National Academies of Sciences,
Engineering, and Medicine report that provider assumptions about people
with disabilities limit health and health care for people with
disabilities, noting that health care providers assume that people with
disabilities ``differ in significant, meaningful, and somewhat
undefined ways from other people[;] that people with disabilities have
a lower level of cognitive ability, independence, and interest in
improving and maintaining current function; [and] that the quality of
life for a disabled person is severely compromised, [which] limits the
type, scope, and aggressiveness of considered treatment options.'' \32\
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\32\ Nat'l Acad. of Sciences, Engineering, & Med., People Living
with Disabilities: Health Equity, Health Disparities, and Health
Literacy: Proceedings of a Workshop (2018), https://doi.org/10.17226/24741.
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These assumptions have been documented in many programs and
activities that frequently receive HHS funding. For example, a 2021
study entitled ``Physicians' Perceptions of People with Disability and
Their Health Care'' found that large proportions of practicing U.S.
physicians appeared to hold biased or stigmatized perceptions of people
with disabilities, such as perceiving worse quality of life for people
with disabilities.\33\ The study showed that, for example, 82% of
doctors thought people with disabilities had a lower quality of life
than people without disabilities,\34\ only 40% felt confident in their
ability to provide the same level to care to patients with disabilities
as those without disabilities,\35\ and only 56% strongly agreed that
they welcomed patients with disabilities into their practice.\36\ A
related study released in January 2022 also made clear that many
physicians are uncertain about their legal responsibilities resulting
from laws prohibiting discrimination on the basis of disability or how
to ensure the provision of equitable care to patients with
disabilities.\37\ For example, more than 71% of physicians surveyed
provided incorrect answers about who makes decisions about reasonable
accommodations for patients with a disability.\38\ Another study
published in October 2022 found that some providers seek ways to avoid
treating patients with disabilities and to discharge them from their
practice.\39\ These medical provider attitudes do not reflect the high
quality of life reported by many people with disabilities. In 2019, NCD
observed, ``most report a high quality of life and level of happiness,
especially when they have access to the health care services and
supports that they need to equally participate in and contribute to
their communities.'' \40\ Most individuals with disabilities report an
excellent or good quality of life.\41\ As NCD noted previously, ``[. .
.] negative predictions of life quality have little to do with the
actual life experiences of people with disabilities. People with
disabilities commonly report more satisfaction with their lives than
others might have expected. Though they commonly encounter obstacles,
prejudice, and discrimination, most people with disabilities manage to
derive satisfaction and pleasure from their lives.'' \42\
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\33\ Lisa I. Iezzoni et al., Physicians' Perceptions of People
with Disability and Their Health Care, 40 Health Aff. 297 (Feb.
2021), https://pubmed.ncbi.nlm.nih.gov/33523739/.
\34\ Id. at 300.
\35\ Id.
\36\ Id. at 301.
\37\ Lisa I. Iezzoni et al., US Physicians' Knowledge about the
Americans with Disabilities Act and Accommodation of Patients with
Disability, 41 Health Aff. 96 (Jan. 2022), https://pubmed.ncbi.nlm.nih.gov/34982624/.
\38\ Id. at 100-101.
\39\ Tara Lagu et al., `I Am Not the Doctor For You':
Physicians' Attitudes about Caring for People with Disabilities, 41
Health Aff. 96 (Jan. 2022), https://doi.org/10.1377/hlthaff.2022.00475.
\40\ Nat'l Council on Disability, Medical Futility and
Disability Bias (2019), https://ncd.gov/sites/default/files/NCD_Medical_Futility_Report_508.pdf; see also, Mary Crossley,
Ending-Life Decisions: Some Disability Perspectives, 33 Ga. St. U.
L. Rev. 900 (2017).
\41\ Lisa I. Iezzoni et al., Physicians' Perceptions of People
with Disability and their Health Care, 40 Health Aff. 297 (Feb.
2021), https://pubmed.ncbi.nlm.nih.gov/33523739/ (citing GL Albrecht
et al, The Disability Paradox: High Quality of life against all
odds, 48 Soc. Sci. Med. 977 (1999)).
\42\ Nat'l Council on Disability, Assisted Suicide: A Disability
Perspective (1997), https://ncd.gov/publications/1997/03241997.
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Stereotypes about the value and quality of the lives of people with
disabilities have led to discriminatory medical decisions in both the
provision and denial of medical treatment.\43\ The general pattern of
discrimination against people with disabilities in medical treatment
decisions extends across the array of contexts in which recipients make
those decisions.
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\43\ See, e.g., Tara Lagu et al., `I am Not the Doctor For You:'
Physicians' Attitudes About Caring for People with Disabilities,
supra note 39 (``Many physicians also expressed explicit bias toward
people with disabilities and described strategies for discharging
them from their practices. Physicians raised concerns about the
expense of providing physical and communication accommodations,
including insufficient reimbursement for physicians' efforts and
competing demands for staff time and other practice resources. Many
participants described caring for very few patients who need
accommodations, with little acknowledgment that the barriers to
obtaining care and inability to track or respond to accommodation
needs could lead to an underidentification of the number of people
with disabilities who seek care.'').
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Below is a discussion of several of the most significant contexts
in which this pattern of discrimination has come to the Department's
attention, including in the areas of organ transplantation, denial of
life-sustaining care, crisis standards of care, participation in
clinical research, and other forms of medical treatment for people with
disabilities, including forced sterilization. Following that is a
subsection-by-subsection analysis of this proposed section.
[[Page 63397]]
Organ Transplantation
The Department plays a significant role in organ transplantation in
the U.S. Within the Department, the Health Resources & Services
Administration (HRSA) exercises oversight of solid organ
transplantation according to a statutory and regulatory framework. The
National Organ Transplant Act of 1984, as amended (NOTA) authorized the
establishment of the Organ Procurement and Transplantation Network
(OPTN) to allocate donor organs to individuals waiting for an organ
transplant.\44\ Under NOTA, the Secretary of Health and Human Services
(Secretary) contracts with a non-profit entity to operate the OPTN,
which currently is the United Network for Organ Sharing (UNOS).
Additionally, the Centers for Medicare & Medicaid Services (CMS) makes
payment for organ procurement costs under the Medicare and Medicaid
programs to organ procurement organizations (OPOs) that meet safety
requirements. Under Federal law, CMS is charged with certifying OPOs
that must meet the OPO Conditions for Coverage in the regulations at 42
CFR 486.301 through 486.360, which include outcome and process
measures.\45\ OPOs are non-profit organizations responsible for the
procurement of organs for transplantation. CMS also certifies that
transplant programs, located within hospitals with Medicare provider
agreements, perform transplantation procedures from living and deceased
donors. Transplant programs must comply with the Medicare transplant
program conditions of participation (CoPs) regulations at 42 CFR 482.68
through 482.104, and with the hospital CoPs at Sec. Sec. 482.1 through
482.58.
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\44\ Sec. 372, Public Law 98-507; 42 U.S.C. 274.
\45\ 42 U.S.C. 1320b-8; sec. 371(b)(3)(C) and sec. 1138(b) of
the Public Health Service Act (42 U.S.C. 273(b)(3)(C)).
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NCD published a 2019 report, ``Organ Transplant Discrimination
Against People with Disabilities,'' describing how people with
disabilities who are otherwise qualified candidates for an organ
transplant are excluded at many phases of the transplant process
because of health care providers' inaccurate assumptions about quality
of life, lifespan, and post-transplant compliance.\46\ In February
2022, NCD issued a ``Health Equity Framework for People with
Disabilities'' and recommended that HHS regulate this area.\47\ The NCD
organ transplant report states that discrimination occurs even though
disabilities unrelated to a person's need for an organ transplant
generally have little or no impact on the likelihood that the
transplant will be successful, and that, if a person with a disability
receives adequate support, their disability should have very limited
impact on their ability to adhere to a post-transplant care
regimen.\48\
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\46\ Nat'l Council on Disability, Organ Transplants
Discrimination against People with Disabilities: Part of the
Bioethics and Disability Series (2019), https://ncd.gov/sites/default/files/NCD_Organ_Transplant_508.pdf.
\47\ Nat'l Council on Disability, Health Equity Framework for
People with Disabilities (2022), https://ncd.gov/sites/default/files/NCD_Health_Equity_Framework.pdf.
\48\ Nat'l Council on Disability, Organ Transplants
Discrimination against People with Disabilities: Part of the
Bioethics and Disability Series, 38-40 (2019), https://ncd.gov/sites/default/files/NCD_Organ_Transplant_508.pdf.
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OCR's investigative experience confirms ongoing concerns about
discrimination at various points in the transplant process. Medical
providers and transplant programs continue to refuse to evaluate
patients with disabilities who are otherwise qualified for transplant
eligibility and fail to place qualified patients on transplant waiting
lists because of exclusions and limitations for certain disabilities
that are not supported by objective evidence or that do not take into
account reasonable modifications in assessing an individual's ability
to manage postoperative care needs and other aspects of
transplantation.\49\ For example, in 2019, OCR resolved a case alleging
discrimination against an individual with autism spectrum disorder, in
which the complainant alleged the University of North Carolina Medical
Center deemed the patient ineligible to be considered for evaluation
for placement on a heart transplant wait list because of the
individual's diagnosis of Autism Spectrum Disorder and anticipated
difficulties managing postoperative care. OCR worked directly with the
recipient to enter a voluntary resolution agreement and the medical
facility agreed to reevaluate the individual's eligibility for
placement on the waiting list and consider the services and supports
the individual could access to manage postoperative care.\50\
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\49\ See, e.g., Bussoletti v. Univ. of Pitt. Med. Ctr. (07-
068765); Walker v. Univ. Cal. San Diego Med. Ctr. (08-80649);
Parsons v. Cnty of Santa Clara, Santa Clara Valley Med. Ctr. (07-
69439); Paladino v. Union City Renal Ctr. (06-44878); Beaton v.
Sutter Mem'l Hosp. (03-11505); Eggemeyer v. Ill. Dep't of Human
Serv. Randolph Cnty. Office (03-004371); HIV/AIDS Legal Servs
Alliance v. Health Plan P of Cal. (09-02-3296); Lewis v. Willis
Knighton Med. Ctr. (03-12129), on file with OCR. In at least one of
the above complaints, OCR recommended that the covered entity
evaluate its transplant listing policies after discovering that the
covered entity's policy listed ``severe mental retardation'' as a
contraindication for transplant.
\50\ See Disability Rts. of N.C. v. Univ. of N.C. Hosp., (19-
318735), https://www.hhs.gov/about/news/2019/02/12/ocr-resolves-disability-complaint-individual-who-was-denied-opportunity-heart-transplant-list.html (No violation was found but a voluntary
resolution agreement was entered into with the facility).
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The Department has heard from a number of stakeholders urging
action on this issue. On May 6, 2019, 17 major organizations that serve
and advocate for individuals with disabilities sent a letter asking OCR
to issue a regulation and guidance that addresses discriminatory
practices in organ transplantation.\51\ On October 12, 2016, a
bipartisan group of 30 members of Congress sent a letter to OCR urging
it to issue guidance on discrimination against individuals with
disabilities, particularly individuals with intellectual and
developmental disabilities, in organ transplantation.\52\ The letter
cited data documenting consideration of disability status in organ
transplantation. The Department agrees that action remains needed.
Moreover, while 34 states have passed State laws protecting the rights
of people with disabilities to access organ transplantation, 16 States
and the District of Columbia lack legislation addressing this
issue.\53\ And even where State laws do address this issue, it is
unclear whether those laws are adequately enforced. Additionally,
according to a 2019 NCD report, transplant centers in states that have
passed antidiscrimination legislation continue to publicly post
discriminatory criteria for organ transplantation, suggesting that some
State law requirements are not well-known or enforced.\54\
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\51\ Letter from Matt Valliere et al., to Roger Severino, Dir.,
U.S. Dep't of Health & Hum. Servs., Off. for Civil Rts., (May 6,
2019). The letter is on file with OCR.
\52\ Letter from Thirty (30) Members of Congress to Jocelyn
Samuels, former Dir., U.S. Dep't of Health & Hum. Servs., Off. for
Civil Rts., (Oct. 12, 2016), on file with OCR.
\53\ Nat'l Down Syndrome Soc'y, Nondiscrimination in Organ
Transplantation Laws & Toolkit (2022), https://www.ndss.org/programs/ndss-legislative-agenda/healthcare-research/nondiscrimination-in-organ-transplantation-laws-toolkit/.
\54\ Nat'l Council on Disability, Organ Transplant
Discrimination Against People With Disabilities 53-54 (2019),
https://ncd.gov/sites/default/files/NCD_Organ_Transplant_508.pdf;
See also Isabella Newburg, Note, The Heart of the Discrimination
Problem: Insufficient State Protection for People with Intellectual
and Developmental Disabilities in the Organ Transplant Process, 107
Ia. L. Rev. 877, 894 (2022).
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Research has documented the persistence of organ transplantation
policies that discriminate against individuals with disabilities,
[[Page 63398]]
particularly against individuals with intellectual and developmental
disabilities, psychiatric disabilities, and HIV.\55\ A 2009 study
reported that 85% of pediatric transplant centers considered
neurodevelopmental status in evaluation, and 71% considered subnormal
IQ a relative or absolute contraindication to transplant.\56\ Programs
continue to list these conditions as reasons for denying transplants,
despite evidence that, for example, individuals with intellectual or
developmental disabilities who have received organ transplants have
rates of successful outcomes and medical adherence comparable to those
of the general population.\57\ A literature review published in
``Pediatric Transplantation'' found scant scientific data to support
the idea that having an intellectual or developmental disability would
pose a heightened risk of poorer outcomes following a transplant.\58\
---------------------------------------------------------------------------
\55\ Nat'l Council on Disability, Organ Transplant
Discrimination Against People With Disabilities, 30 (2019), https://ncd.gov/sites/default/files/NCD_Organ_Transplant_508.pdf
(``Disability discrimination persists in the evaluation process
because, in spite of evidence to the contrary, many physicians still
view HIV and AIDS, as well as intellectual, developmental, or
psychiatric disabilities, as relative or absolute contraindications
to transplant.'').
\56\ Aaron Wightman et al., Consideration of Children with
Intellectual Disability as Candidates for Solid Organ
Transplantation--A Practice in Evolution, Pediatric Transplantation
22, no. 1 (Feb. 2018), citing Richards CT et al., Use of
Neurodevelopmental Delay in Pediatric Solid Organ Transplant Listing
Decisions: Inconsistencies in Standards across Major Pediatric
Transplant Centers. Pediatric Transplantation no. 13, 843-85 (2009).
\57\ See, e.g., E. Samuel-Jones et al., Cardiac Transplantation
in Adult Patients with Mental Retardation: Do Outcomes Support
Consensus Guidelines, 53 Psychomatics 133 (2012) (concluding people
with intellectual disabilities can receive long-term benefit from
heart transplantation when they have the support necessary to ensure
adherence to post-transplant regimens); Marilee Martens et al.,
Organ Transplantation, Organ Donation and Mental Retardation,
Pediatric Transplantation. 2006 Sept.;10(6):658-64 (reviewed the
literature on accessibility and outcomes of organ transplantation in
individuals with intellectual disability and on the prevalence of
organ donation in this population. The one- and three-year patient
survival rates were 100% and 90%, respectively).
\58\ Marilee A. Martens et al., Organ Transplantation, Organ
Donation, and Mental Retardation, 10 Pediatric Transplantation 658
(2006).
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In a policy statement, the American Society of Transplant Surgeons
recommends ``that no patient will be discriminated against or precluded
from transplant listing solely due to the presence of a disability or
handicap, whether physical or psychological . . . This [transplant]
decision would be made due to the clinical risk benefit analysis for
the specific patient, and not on any external factors.'' The Society
further indicates support for ``efforts to identify and eliminate any
Transplant Center processes or practices that allow discrimination.''
\59\
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\59\ Am. Soc'y of Transplant Surgeons, Statement Concerning
Eligibility for Solid Organ Transplant Candidacy (Feb. 12, 2021),
https://asts.org/about-asts/position-statements#.Ysxi0LfMKUk.
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Media reports have also documented denials of organ transplants
based on disability.\60\ For example, in 2013, the news widely covered
the initial denial of a kidney transplant to a three-year-old girl by
Children's Hospital of Philadelphia because she had Wolf-Hirschhorn
syndrome, which delays growth and causes intellectual and developmental
disabilities.\61\ In 2006, Oklahoma University Medical Center denied a
young woman placement on a waiting list for a kidney transplant based
on her diagnosis of Mild Intellectual Disability.\62\ In February 2022,
CBS News covered families' allegations that hospitals denied transplant
eligibility for children with Down syndrome and other developmental
disabilities.\63\ In addition, the general obligation to make
reasonable modifications for qualified individuals with disabilities
under proposed Sec. 84.68(b)(7) applies to organ transplantation. For
example, transplant programs receiving Federal financial assistance
must allow individuals to meet the requirement that they can manage
postoperative care needs with a reasonable modification, such as the
assistance of a formal or informal support system. These types of
supports may include, for example, support from family or friends, paid
services, long-term services and supports, and other forms of
assistance.
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\60\ See, e.g., Sara Reardon, Push Is On for States to Ban Organ
Transplant Discrimination, Kaiser Health News (Mar. 8, 2021),
https://khn.org/news/article/organ-transplant-discrimination-disabilities-state-legislation/; Sunshine Bodey, My Son Has Autism.
Discrimination Almost Cost Him His Life, Wash. Post (Aug. 30, 2017),
https://www.washingtonpost.com/opinions/my-son-has-autism-discrimination-almost-cost-him-his-life/2017/08/30/b899dc58-88e8-11e7-961d-2f373b3977ee_story.html; Lenny Berstein, People with
Autism, Intellectual Disabilities Fight Bias in Transplants, Wash.
Post (Mar. 4, 2017), https://www.washingtonpost.com/national/health-science/people-with-autism-intellectual-disabilities-fight-bias-in-transplants/2017/03/04/756ff5b8-feb2-11e6-8f41-ea6ed597e4ca_story.html?utm_term=.144fbd126817.
\61\ Kim Painter, Disabled NJ Girl Thrives, Inspires After
Transplant, USA Today (Oct. 5, 2013), https://www.usatoday.com/story/news/nation/2013/10/05/disabled-transplant-amelia-rivera/2917989/.
\62\ David Shapiro, Disabled Woman Dies While Awaiting Second
Chance at Transplant, NPR (June 13, 2012), https://www.npr.org/sections/health-shots/2012/06/13/154914089/disabled-woman-dies-while-awaiting-second-chance-at-kidney-transplant.
\63\ Michael Roppolo, They Say Their Children Are Being Denied
Transplants Because of Their Disabilities. A New Federal Law May
Help Change That., CBS News, (Feb. 28, 2022), https://www.cbsnews.com/news/organ-transplants-discrimination-disability-rights.
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The continuing evidence of discrimination against individuals with
disabilities in organ transplantation demonstrates the need for a rule
specifically discussing the application of section 504's requirements
in the medical treatment context.
Life-Sustaining Treatment
People with disabilities face significant discrimination in access
to life-sustaining care. These discriminatory judgments arise when
clinicians seek to end the continued provision of life-sustaining care
that is still actively sought by a person with a disability or their
authorized representative. This proposed rule uses the term ``life-
sustaining care'' here broadly, to encompass both critical care
treatment and life-saving or life-extending care provided outside the
context of an acute medical crisis. Discrimination is particularly
salient in the context of medical futility determinations, when
hospitals and providers decide to discontinue or deny medical treatment
based on the judgment that the treatment would do little or nothing to
benefit the patient.\64\ Section 504 does not prohibit giving medical
providers discretion to make medical futility judgments; it does
require that medical futility judgments be made on a nondiscriminatory
basis. There is ample evidence that perceptions about patients with
disabilities' quality of life often affects judgments related to
patient benefit and leads to the discriminatory denial of life-
sustaining care. The result can be premature death for patients with
disabilities.
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\64\ Medical futility sometimes goes under other names such as
``nonbeneficial treatment.''
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NCD published a report in 2019 examining the issue of medical
futility determinations and disability bias, discussing decisions by
health care providers to withhold or withdraw life-sustaining care for
individuals with disabilities that are driven by subjective quality of
life judgments.\65\ Clinical literature documents how futility
determinations can be used to deny care to people with disabilities
based on their use of assistive technology, ongoing support needs, and
other factors that do not prevent a treatment from being effective in
saving or extending life.\66\ As discussed above,
[[Page 63399]]
recent research has documented that a large proportion of practicing
physicians in the United States hold biased perceptions of people with
disabilities, in particular perceiving people with disabilities as
having worse quality of life (in contrast to the self-perception of
many people with disabilities themselves).\67\ Such perceptions of the
quality of life of people with disabilities can play a role in the
discriminatory use of futility determinations to deny medically
effective care.
---------------------------------------------------------------------------
\65\ Nat`l Council on Disability, Medical Futility and
Disability Bias: Part of the Bioethics and Disability Series (Nov.
2019), https://ncd.gov/sites/default/files/NCD_Medical_Futility_Report_508.pdf.
\66\ See LJ Schneiderman et al., Medical Futility: Its Meaning
and Ethical Implications, 112 Ann. Intern. Med. 949 (1990)
(indicating the use of assistive technology, ongoing support needs,
etc. in futility determinations). See also Maryam Aghabaray et al.,
Medical Futility and its Challenges: a Review Study, 9 J. Med.
Ethics & History of Med. 11 (2016), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5203684/ (clarifying the continued use of these
standards in the present day).
\67\ Lisa I. Iezzoni et al., Physicians' Perceptions of People
with Disability and Their Health Care, 40 Health Aff. 297 (Feb.
2021), https://pubmed.ncbi.nlm.nih.gov/33523739/, citing GL Albrecht
et al., The Disability Paradox: High Quality of Life Against All
Odds, 48 Soc. Sci. Med. 977 (1999).
---------------------------------------------------------------------------
Of particular concern are determinations by providers that an
intervention should not be provided if it ``fails to return or sustain
an acceptable quality of life'' for a patient in the judgment of the
provider, even if the patient or their authorized representative would
consider such an outcome acceptable.\68\ For example, the idea that if
treatment ``cannot end dependence on intensive medical care, the
treatment should be considered futile,'' \69\ may discriminate against
people whose disabilities create continuing support needs. Similarly,
some sources have defined futility in terms of an inability to exit a
hospital or institutional long-term care setting \70\ or a patient's
reliance on others for activities of daily living.\71\ When these
definitions are used to deny care to people with disabilities, they are
likely to be discriminatory.
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\68\ L. Morata, An Evolutionary Concept Analysis of Futility in
Health Care, 74 J. Advanced Nursing 1289 (June 2018).
\69\ Id.
\70\ L.J. Schneiderman et al., Medical Futility, 118 Handbook of
Clinical Neurology 167 (Jan. 2013); Morata L., supra note 68.
\71\ R. Sibbald, et al., Perceptions of ``Futile Care'' Among
Caregivers in Intensive Care Units, 177 CMAJ 1201 (Nov. 2007);
M[uuml]ller R, Kaiser S. et al., Perceptions of Medical Futility in
Clinical Practice-a Qualitative Systematic Review, 48 J. Critical
Care 78 (Dec. 2018).
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Physicians discriminate on the basis of disability when they act
based on judgments that a patient's life is not worth living because
they have a disability that substantially limits their major life
activities and bodily functions, e.g., they may need assistance with
the activities of daily living. Denying a medical treatment on that
basis if the treatment would be provided to a similarly situated
patient without a disability is discrimination on the basis of
disability. As discussed earlier in this section, people with
disabilities frequently report having a good quality of life
notwithstanding their need for assistance in many of the areas cited in
the literature as a basis for a futility determination, such as
mechanical ventilation, the use of assistive technology, the need for
ongoing physical assistance with activities of daily living, mobility
impairments, cognitive disability, and other similar factors.\72\
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\72\ Gary Albrecht et al., The Disability Paradox: High Quality
of Life Against All Odds, 48 Soc. Sci. Med. 977 (Apr. 1999); Sonia
Frick et al., Medical Futility: Predicting Outcome of Intensive Care
Unit Patients by Nurses and Doctors--a Prospective Comparative
Study, 456 Critical Care Med. (Feb. 2003); Lisbeth [Oslash]rtenblad
et al., Users' Experiences With Home Mechanical Ventilation: A
Review of Qualitative Studies, Respiratory Care 1157 (Sep. 2019);
Peter A. Ubel et al., Whose Quality of Life? A Commentary Exploring
Discrepancies Between Health State Evaluations of Patients and the
General Public, Quality of Life Research, 599 (Sept. 2003).
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One study of the application of medical futility determinations
found that mobility status, and particularly a patient's immobility
(defined as being ``bed-bound or only able to move from bed to
chair''), played a significant role in providers' determinations of
qualitative futility--that is, determinations that an intervention will
not return or sustain an acceptable quality of life--suggesting that
physicians may be more likely to determine that a patient's likely
outcome is unacceptably poor and should thus be considered medically
futile if the patient has a mobility impairment.\73\ In the same study,
one-third of the determinations of futility based on perceptions of a
patient's quality of life were made without a discussion with the
patient about their perception of their quality of life, a significant
problem given that patients frequently report substantially different
perceptions of their own quality of life than their physicians
assume.\74\ A 2016 review found that futility determinations continue
to be used by physicians and that such judgments often take into
account clinician perceptions of patient quality of life, including
dependence on life-sustaining equipment, devices, and medications.\75\
This clinical literature supports the view that qualitative futility
judgments are used to deny access to life-sustaining care against the
wishes of the patient or their authorized representative based on
clinician judgments that the life of a given patient with a disability
is not worth living.\76\
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\73\ J.R. Curtis et al., Use of the Medical Futility Rationale
in Do-Not-Attempt-Resuscitation Orders, 273 JAMA 124, 125 (1995).
\74\ Id. See also Gary Albrecht et al., The Disability Paradox:
High Quality of Life Against All Odds, 48 Soc Sci Med. 977 (Apr.
1999).
\75\ Maryam Aghabaray et al., Medical Futility and its
Challenges: A Review Study, 9 J. of Med. Ethics and History of Med.
11 (2016), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5203684/.
\76\ Nat'l Council on Disability, Medical Futility and
Disability Bias, Part of the Bioethics and Disability Series (2019),
https://ncd.gov/sites/default/files/NCD_Medical_Futility_Report_508.pdf; Maryam Aghabaray et al.,
Medical Futility and its Challenges: A Review Study, 9 J. Med.
Ethics & History of Med. 11 (2016), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5203684/; Dominic J. Wilkinson et al., Knowing When
to Stop: Futility in the Intensive Care Unit, 2 Current Op. in
Anesthesiology 24 (2011), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3252683/ (recognizing that judgments concerning qualitative
futility led to cessation of care in intensive care units).
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In a 2015 policy statement from the American Thoracic Society, the
American Association for Critical Care Nurses, the American College of
Chest Physicians, the European Society for Intensive Care Medicine, and
the Society of Critical Care Medicine entitled ``Responding to Requests
for Potentially Inappropriate Treatments in Intensive Care Units,'' the
term medical futility was defined more narrowly, referring only to
``treatments that have no chance of achieving the intended physiologic
goal.'' The policy statement contrasts this narrow definition of
futility with broader definitions that include futility based on
quality-of-life judgments, stating that ``broader definitions of
futility are problematic because they often hinge on controversial
value judgments about quality of life or require a degree of prognostic
certainty that is often not attainable.'' \77\
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\77\ G.T. Bosslet et al., An official ATS/AACN/ACCP/ESICM/SCCM
Policy Statement: Responding to Requests for Potentially
Inappropriate Treatments in Intensive Care Units, 191 Am. J.
Respiratory & Critical Care Med. 1318 (June 2015).
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Disability and civil rights organizations have expressed serious
concern regarding disability discrimination in medical futility
decisions and other areas regarding denial of life-sustaining care. In
a July 10, 2018, letter from 22 disability organizations to OCR and to
HHS' Administration for Community Living (ACL), the writers noted that
sometimes medical determinations of futility are motivated by
inappropriate consideration of cost or value judgments regarding the
quality of life of individuals with disabilities seeking life-saving
medical treatment rather
[[Page 63400]]
than an assessment of the individual's ability to benefit from
treatment.\78\
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\78\ Letter from 22 organizations to U.S. Dep't of Health & Hum.
Servs., Off. for Civil Rts and Admin. for Cmty. Living (July 10,
2018), on file with OCR.
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On May 6, 2019, a coalition of 17 leading organizations that
advocate for or serve individuals with disabilities wrote to OCR,
raising selected disability discrimination issues.\79\ They pointed to
``so-called `futile care' laws and policies, which allow doctors to
deny life-sustaining treatment to individuals with disabilities who
want and need it.'' On September 3, 2019, the American Civil Liberties
Union wrote a letter to OCR highlighting that medical futility
determinations are an area of concern for discrimination against
individuals with disabilities.\80\ OCR has also heard from stakeholders
that discrimination in medical futility determinations and biased
provider counseling remain sources of concern for people with
disabilities and may result in the denial of medically effective life-
sustaining treatment against the wishes of patients with disabilities
and their authorized representatives.\81\
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\79\ Letter from Matt Valliere et al., on behalf of 17
organizations, to U.S. Dep't of Health & Hum. Servs., Off. for Civil
Rts (May 6, 2019), on file with OCR.
\80\ See Memorandum from Ronald Newman et al., American Civil
Liberties Union, to U.S. Dep't of Health & Hum. Servs., Off. for
Civil Rts. (Sep. 3, 2019), on file with OCR.
\81\ See, e.g. Letter from Nat'l Council on Disability to U.S.
Dep't of Health & Hum. Servs., Off. for Civil Rts., (Dec. 11, 2019)
(HHS on assisted suicide, medical futility and QALYs reports),
https://ncd.gov/publications/2019/ncd-letter-hhs-3-bioethics-reports; Letter from Nat'l Council on Disability to U.S. Dep't of
Health & Hum. Servs., Off. for Civil Rts., (Mar. 18, 2020)
(addressing COVID-19, https://ncd.gov/publications/2020/ncd-covid-19-letter-hhs-ocr; Letter from Consortium of Citizens with
Disabilities to Sec'y Azar, U.S. Dep't of Health & Hum. Servs. &
Roger Severino, Director, OCR, (Mar. 20, 2020) (addressing COVID-19
and disability discrimination), https://www.c-c-d.org/fichiers/Letter-re-COVID-19-and-Disability-Discrimination-final.pdf; Letter
from 27 Members of the House and five Senators to Alex Azar, Sec'y,
U.S. Dep't of Health & Hum. Servs. & Bill Barr, Att'y Gen., U.S.
Dep't of Justice, (Mar. 25, 2020) (urging HHS, AG to Protect
Disability Community), https://chrissmith.house.gov/uploadedfiles/2020-03-25_bipartisan_bicameral_letter_to_hhs_and_doj_-_covid-19_and_disability_discrimination.pdf; Letter from eight senators to
Sec'y. Azar, Admin. Verma, and Dir. Severino U.S. Dep't of Health &
Hum. Servs (Apr. 10, 2020) (related to Rationing of Care) https://www.warren.senate.gov/imo/media/doc/2020.04.09%20Letter%20to%20HHS%20OCR%20re%20Rationing%20of%20Care.pdf
; Letter from eight senators to Sec'y. Azar, Admin. Verma, and Dir.
Severino U.S. Dep't of Health & Hum. Servs (Apr. 10, 2020) (related
to Rationing of Care) https://www.warren.senate.gov/imo/media/doc/2020.04.09%20Letter%20to%20HHS%20OCR%20re%20Rationing%20of%20Care.pdf
; Press Release, Am. Assoc. People with Disabilities, Over 400
Organizations Urge Department of Health and Human Services to Issue
Guidance to Prohibit Discrimination during Medical Rationing (Apr.
17, 2020), https://www.aapd.com/press-releases/civil-rights-letter-covid-medical-rationing/?fbclid=IwAR0uKHogSaq8zknb--gVKL9-oplHXyX1a1lGpyx306WHpr0ZQWoxSk2C1oM; Letter from Autistic Self
Advocacy Network, DREDF, Epilepsy Foundation, Justice in Aging and
The Arc of the United State to Melanie Fontes Rainer, Acting Dir.,
OCR and Samuel Bagenstos, General Counsel, U.S. Dep't of Health &
Hum. Servs. (Aug. 18, 2022), on file with OCR. Over 400
Organizations Urge Department of Health and Human Services to Issue
Guidance to Prohibit Discrimination during Medical Rationing (Apr.
17, 2020), https://www.aapd.com/press-releases/civil-rights-letter-covid-medical-rationing/?fbclid=IwAR0uKHogSaq8zknb--gVKL9-oplHXyX1a1lGpyx306WHpr0ZQWoxSk2C1oM; Letter from Autistic Self
Advocacy Network, DREDF, Epilepsy Foundation, Justice in Aging & The
Arc of the United State to Melanie Fontes Rainer, Acting Dir., OCR &
Samuel Bagenstos, Gen. Counsel, U.S. Dep't of Health & Hum. Servs.
(Aug. 18, 2022), on file with OCR.
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Crisis Standards of Care
When an emergency or crisis has a substantial effect on usual
health care operations and the level of care that is possible to
deliver, hospitals and health systems may adopt crisis standards of
care. These policies may authorize or recommend prioritization of
scarce resources through means not used outside of crisis conditions.
OCR received numerous complaints against states alleging disability
discrimination relating to crisis standards of care during the early
months of the COVID-19 public health emergency. Federal agencies,
advocates, the media, members of the public, and other stakeholders
also raised general concerns about the potential for discrimination on
the basis of disability in the application of these standards.\82\
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\82\ On March 25, 2020, a bipartisan bicameral Congressional
coalition sent then-Secretary Azar and then-Attorney General Barr a
letter asking HHS to notify states of their civil rights obligations
as they review and develop their crisis standards of care. Lankford,
Gillibrand Lead Bipartisan, Bicameral Call to Protect Civil Rights
for People with Disabilities Amidst COVID-19 Pandemic,
lankford.senate.gov (Mar. 25, 2020). This call followed an earlier
letter to OCR by the National Council on Disability asking for
similar guidance. Letter from Nat'l Council on Disability to U.S.
Dep't of Health & Hum. Servs., Off. for Civil Rts. (Mar. 18, 2020),
https://www.ncd.gov/publications/2020/ncd-covid-19-letter-hhs-ocr.
Since the NCD letter, a variety of national organizations
representing broad-based constituents have reached out to OCR with
similar requests, including the Consortium on Citizens with
Disabilities, Cystic Fibrosis Research, Inc., the Disability Rights
Education and Defense Fund, the National Disability Rights Network,
National Right to Life, and others.
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OCR resolved a number of civil rights complaints and provided
technical assistance to recipients, including complaints against
Tennessee,\83\ Utah,\84\ North Carolina,\85\ several regional consortia
of hospital systems within Texas,\86\ and Arizona,\87\ among others,
regarding application of their triage and ventilator allocation
guidelines to individuals with disabilities. In February 2022, OCR
released a guidance document entitled ``Frequently Asked Questions for
Providers during the COVID-19 Public Health Emergency: Federal Civil
Rights Protections for Individuals with Disabilities under Section 504
and Section 1557.'' The document includes a section on crisis standards
of care.\88\ The guidance was intended to assist states and providers
seeking to comply with applicable civil rights laws during the COVID-19
public health emergency. That guidance was specific to the
circumstances of the COVID-19 pandemic. The Department proposes to
address in this proposed regulation the application of section 504 to
the allocation of scarce medical treatments or other resources more
generally.
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\83\ See U.S. Dep't of Health & Hum. Servs., Off. for Civil Rts.
OCR Resolves Complaint with Tennessee After it Revises its Triage
Plans to Protect Against Disability Discrimination (Jun. 26, 2020),
https://www.hhs.gov/about/news/2020/06/26/ocr-resolves-complaint-tennessee-after-it-revises-its-triage-plans-protect-against-disability.html.
\84\ See U.S. Dep't of Health & Hum. Servs., Off. for Civil
Rts., OCR Resolves Complaint with Utah After it Revised Crisis
Standards of Care to Protect Against Age and Disability
Discrimination (Aug. 20, 2020), https://www.hhs.gov/about/news/2020/08/20/ocr-resolves-complaint-with-utah-after-revised-crisis-standards-of-care-to-protect-against-age-disability-discrimination.html.
\85\ See U.S. Dep't of Health & Hum. Servs., Off. for Civil
Rts., OCR Provides Technical Assistance to Ensure Crisis Standards
of Care Protect Against Age and Disability Discrimination (Jan. 14,
2021), https://www.hhs.gov/about/news/2021/01/14/ocr-provides-technical-assistance-ensure-crisis-standards-of-care-protect-against-age-disability-discrimination.html.
\86\ See id.
\87\ See U.S. Dep't of Health & Hum. Servs., Off. for Civil
Rts., OCR Provides Technical Assistance to the State of Arizona to
Ensure Crisis Standards of Care Protect Against Age and Disability
Discrimination (May 25, 2021), https://www.hhs.gov/about/news/2021/05/25/ocr-provides-technical-assistance-state-arizona-ensure-crisis-standards-care-protect-against-age-disability-discrimination.html.
\88\ U.S. Dep't of Health & Hum. Servs., Off. for Civil Rts.,
FAQs for Healthcare Providers during the COVID-19 Public Health
Emergency: Federal Civil Rights Protections for Individuals with
Disabilities under section 504 and Section 1557 (Feb. 4, 2022),
https://www.hhs.gov/civil-rights/for-providers/civil-rights-covid19/disabilty-faqs/index.html.
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The COVID-19 public health emergency has illustrated the importance
of regulating in this area, including within the context of crisis
standards of care. For example, many crisis standards of care protocols
issued prior to and during the COVID-19 public health emergency
included categorical exclusions of people with disabilities from access
to critical care despite their possessing the potential to benefit from
treatment. Recipients may not categorically exclude individuals with
disabilities or groups of individuals with disabilities from critical
care provided that treatment is
[[Page 63401]]
not futile for said individuals. Judgments of futility may not be based
on criteria otherwise prohibited in this section or elsewhere in
section 504.\89\ Similarly, many crisis standards of care protocols
included other forms of discrimination on the basis of disability that
did not involve categorical exclusions, such as prioritizing resources
on the basis of patients' anticipated life-expectancy long after their
acute care episode. OCR has previously clarified that a patient's
likelihood of survival long after hospital discharge is unlikely to be
related to the need to make allocation decisions about scarce resources
on a temporary basis or the effectiveness of the medical interventions
being allocated, and thus should not be used as a prioritization
criterion in crisis standards of care protocols.\90\
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\89\ Ari Ne'eman et al., The Treatment of Disability under
Crisis Standards of Care: an Empirical and Normative Analysis of
Change over Time during COVID-19, 45 J. Health Polit. Policy Law 831
(2021), https://doi.org/10.1215/03616878-9156005.
\90\ U.S. Dep't of Health & Hum. Servs., Off. for Civil Rts.,
FAQs for Healthcare Providers during the COVID-19 Public Health
Emergency: Federal Civil Rights Protections for Individuals with
Disabilities under section 504 and Section 1557 (Feb. 4, 2022),
https://www.hhs.gov/civil-rights/for-providers/civil-rights-covid19/disabilty-faqs/index.html.
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Participation in Clinical Research
Clinical research participation can offer considerable benefit to
both the individuals participating within it and society at large. In
addition to the intangible benefits of advancing scientific discovery
and contributing to the development of potential medical interventions,
those participating in clinical research are often able to obtain
access to diagnostic, preventative, or therapeutic interventions and
treatments that would not otherwise be available to them. Longstanding
literature, including a recent report from the National Academies of
Science, Engineering and Medicine, has highlighted the problem of the
systemic exclusion of women, people of color, and other marginalized
groups from clinical research.\91\ Such exclusions harm those who are
denied the direct benefits of research participation. They also
threaten the generalizability of research findings and potentially the
reach of subsequent medical innovations for those groups who are
excluded.
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\91\ Nat'l Acad. of Science, Engineering & Med., Improving
Representation in Clinical Trials and Research: Building Research
Equity for Women and Underrepresented Groups, The Nat'l Acad. Press
(2022), https://doi.org/10.17226/26479.
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Recent research has documented that people with disabilities also
face systemic and unnecessary exclusion from clinical research.\92\
Although study exclusions can be justifiable based on the nature of the
clinical research being conducted, exclusions can also be the result of
a failure to take into account the availability of reasonable
modifications to a study protocol that might permit the participation
of people with disabilities. They also may be the result of overly
broad exclusion criteria rooted in stereotypes, bias, or
misunderstandings of the capabilities of people with specific
disabilities. Investigators may have valid reasons for excluding people
whose disabilities are medically incompatible with the study being
conducted. When evaluating potential study participants on an
individualized basis, clinical judgment may be necessary on the part of
the investigator to assess the appropriateness of study participation.
However, it is important that study exclusion criteria be written in a
way that does not unnecessarily screen out people with disabilities
whose research participation would not alter the intended purpose of
the program of clinical research being undertaken.
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\92\ Willyanne DeCormier Plosky et al., Excluding People with
Disabilities from Clinical Research: Eligibility Criteria Lack
Clarity and Justification,41 Health Aff. 10 (Jan. 2022). https://doi.org/10.1377/hlthaff.2022.00520; Katie McDonald et al.,
Eligibility criteria in NIH-funded Clinical Trials: Can Adults with
Intellectual Disability Get In? 15 Disability & Health (2022),
https://doi.org/10.1016/j.dhjo.2022.101368.
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Similarly, overly broad exclusion criteria may be motivated by
concerns regarding the ability of potential study participants with
disabilities to perform research-related tasks that can be reasonably
modified, such as filling out tests or responding to instructions from
research personnel, or by the failure to take into account the
recipient's obligation to provide for effective communication with
persons who are deaf, have vision loss, or otherwise need alternative
forms of communication.
Nondiscriminatory Criteria
Section 84.4(b)(4), while being revised in the amendment segment of
this proposed rule, results in the text being redesignated as Sec.
84.68(b)(3), prohibits the use of discriminatory methods of
administration, criteria, and protocols, including discrimination in
the allocation of scarce resources. Resources necessary for medical
treatment are sometimes scarce for a variety of reasons. A therapeutic
agent or vaccine may be newly developed, and production may not yet
have caught up to the level of demand for it. More generally, supply
chain issues may prevent drugs, devices, and equipment from getting to
places where they are needed. And, as was evidenced in the response to
COVID-19, medical emergencies may overtax hospitals and the larger
health care system. In circumstances like these, recipients may find it
necessary to create a protocol or methodology for allocating those
treatments and resources.
This section does not require hospitals or the broader health care
system to allocate resources in any specific way; it just prohibits
them from using criteria that subject individuals with disabilities to
discrimination on the basis of disability. For example, as OCR has
previously indicated in guidance,\93\ practices or protocols in which
recipients deny medical resources based on the projected length or
scope of resources needed, and thus deny care to certain individuals
with a disability because they are concerned that treating a patient
with a disability may require more of a particular resource than
treating individuals without a disability, may discriminate against
persons with disabilities. Similarly, if recipients deny a patient with
disabilities access to resources because of forecasts that the person
may not live as long as an individual without a disability after
treatment, this may also discriminate against persons with
disabilities.\94\ The further in the future a provider looks to
establish a patient survival prediction, the less likely that
prediction will be related to the medical effectiveness of the
resources being rationed during the temporary shortage, and doing so
may screen out people with disabilities without being necessary to
operate a program of critical care.\95\
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\93\ U.S. Dep't of Health & Hum. Servs., Off. for Civil Rts.,
FAQs for Healthcare Providers during the COVID-19 Public Health
Emergency: Federal Civil Rights Protections for Individuals with
Disabilities under section 504 and Section 1557 (Feb. 4, 2022),
https://www.hhs.gov/civil-rights/for-providers/civil-rights-covid19/disabilty-faqs/index.html.
\94\ See id. at Question 7.
\95\ Id.
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Certain criteria for allocating scarce medical treatments may
discriminate against people with disabilities even if they rely on
predictions of short-term mortality. For example, throughout the COVID-
19 pandemic, many states and hospitals indicated they planned to make
use of the Sequential Organ Failure Assessment (SOFA) to make judgments
about short-term life expectancy in the event that crisis standards of
care were activated. The SOFA is a composite instrument, incorporating
scores from multiple other instruments into a composite score that has
been used within crisis standards of
[[Page 63402]]
care allocation to predict short-term life expectancy. Among the
component instruments of the SOFA is the Glasgow Coma Scale (GCS).
Application of the GCS, a tool designed to measure the severity of
acute brain injuries, may not yield a valid result (i.e., it may not
correspond to actual mortality risk) when applied to patients with
underlying disabilities that impact speech or motor movement issues.
The GCS assigns a more severe score to patients who cannot articulate
intelligible words or who cannot obey commands for movement. However,
many disabilities result in these same attributes--such as autism and
cerebral palsy--but do not contribute to short-term mortality. As a
result, the use of the SOFA with patients with such underlying
disabilities may lead to an unduly pessimistic prediction of short-term
survival, giving such patients lower priority in accessing scarce
critical care resources.
As the American Academy of Developmental Medicine and Dentistry
(AADMD) notes, ``in the field of developmental medicine, there are
patients who, at their natural baseline often cannot hear a command,
move their limbs or communicate verbally. Given the combination of
characteristics inherent in the population of people with intellectual
and developmental disabilities, it would be possible to use 'objective'
data surrounding the SOFA score to predict a significantly higher
mortality risk than is really the case.'' \96\ Similar impacts may
exist for other types of disabilities and other prognostic scoring
tools, measures, diagnostic instruments, and methodologies for
assessment or the allocation of scarce medical resources.
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\96\ Am. Acad. of Dev. Med. & Dentistry, People with
Intellectual and Developmental Disabilities and the Allocation of
Ventilators During the COVID-19 Pandemic (Apr. 2020), https://static1.squarespace.com/static/5cf7d27396d7760001307a44/t/5ecfb6fff13530766aeae51a/1590671105171/Ventilator+-+Policy+Statement+w+Addendum.pdf.
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The general requirement that recipients must provide reasonable
modifications when necessary to avoid discrimination that appears in
proposed Sec. 84.68(b)(7) applies in circumstances of scarce
resources, just as it does elsewhere. Section 504 might, for example,
require reasonable modifications in the administration of assessment
tools such as the SOFA and the GCS (which may be used within a larger
scoring rubric for the allocation of scarce resources) to ensure that
the tools measure accurately what they are intended to measure in
people with disabilities. For example, a scoring tool may assess the
inability of a person with cerebral palsy to articulate words, but it
would be discriminatory to use that determination to indicate an actual
mortality risk that is not implied by that disability. Similarly, some
crisis standards of care protocol have used ``therapeutic trials''
involving the provision of mechanical ventilation for a set period of
time to evaluate the effectiveness of ventilator treatment for a
particular patient. However, patients with particular types of
disabilities may take longer to respond to treatment, and the test
period may need to be longer to accurately evaluate the effectiveness
of mechanical ventilation for these patients. In this situation, a
recipient may need to allow an individual with a disability some
additional time on a ventilator to assess likely clinical improvement,
unless doing so would constitute a fundamental alteration of the
ventilator trial.\97\
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\97\ U.S. Dep't of Health & Human Servs., Off. for Civil Rts.,
FAQs for Healthcare Providers during the COVID-19 Public Health
Emergency: Federal Civil Rights Protections for Individuals with
Disabilities under section 504 and Section 1557 (Feb. 4, 2022),
https://www.hhs.gov/civil-rights/for-providers/civil-rights-covid19/disabilty-faqs/index.html.
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Sec. 84.56(a) Discrimination Prohibited
Proposed Sec. 84.56(a) confirms the basic requirement that no
qualified individual with a disability shall, on the basis of
disability, be subjected to discrimination in medical treatment under
any program or activity that receives Federal financial assistance,
including in the allocation or withdrawal of any good, benefit, or
service. Section 84.56(a) makes specific the general prohibition of
disability-based discrimination proposed in Sec. 84.68(a), as well as
the general prohibition that applies to health, welfare, and other
social services in Sec. 84.52(a), and underscores that those
prohibitions broadly apply to medical treatment decisions made by
recipients.
For example, a patient with HIV seeks surgery for an orthopedic
condition. A recipient refuses to provide treatment because of a belief
that individuals with HIV are responsible for their condition and
should thus not receive costly medical resources. This rationale is
discriminatory on the basis of disability in this context.\98\
Similarly, this paragraph would cover situations where a recipient
declines to treat a person with certain disabilities, including
psychiatric, intellectual, and developmental disabilities because the
treating professional is uncomfortable providing care based on
stereotypical beliefs about persons with that disability, or where the
recipient declines to treat persons with a substance use disorder based
on a belief that these persons are less likely to comply with treatment
protocols.
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\98\ See Bragdon v. Abbott, 524 U.S. 624 (1998). HIV is
contained in the list of physical or mental impairments in the ADA
regulations and it substantially limits major life activities
because it affects the immune system and the reproductive system. 35
CFR 35.108. Similarly, under the section 504 regulations that mirror
the ADA language, HIV will virtually always be found to be an
impairment that substantially limits a major life activity. HIV
infection typically leads to a determination of disability. In
addition, the patient in this example would be protected under the
``regarded as'' provision based on the recipient's action and
justification.
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Scope of Discrimination Prohibited
The text of section 504 is clear and broad. Section 504 prohibits
discrimination on the basis of disability in programs or activities
receiving Federal financial assistance. Section 504's ``program or
activity'' language provides no basis for excluding some activities in
which recipients engage--such as medical treatment--from the statute's
facially broad coverage. A recipient's failure to provide treatment to
an individual with disabilities who meets all qualifications for the
medical treatment results in a denial of health care to a person with
disabilities and, barring any applicable limitation, constitutes
discrimination in violation of section 504.
The intended breadth of section 504 is reflected in the Civil
Rights Restoration Act (CRRA), which made clear that section 504
applies to ``all the operations of an entity that receives Federal
financial assistance.'' \99\ As amended by the CRRA, section 504's
``program or activity'' language provides no basis for excluding some
actions in which recipients engage--such as medical treatment--from the
statute's facially broad coverage. In addition, in interpreting the
ADA, which is modeled on section 504--the Supreme Court has recognized
the law's broad coverage in accordance with its language. In
particular, in Pennsylvania Department of Corrections v. Yeskey, the
Supreme Court refused to carve prison conditions cases out of title
II's coverage.\100\ When the state argued that prison conditions were
significantly different than the circumstances that Congress sought to
address in the statute, the Court responded, ``the fact that a statute
can be applied in situations not expressly anticipated by Congress does
not demonstrate ambiguity. It demonstrates breadth.'' \101\
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\99\ 29 U.S.C. 794(b).
\100\ 524 U.S. 206 (1998).
\101\ Id. at 212 (internal quotation marks omitted).
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[[Page 63403]]
Indeed, the Supreme Court has itself applied both section 504 and
the ADA to medical treatment decisions. In Bowen v. American Hospital
Association, seven justices considered on the merits the argument that
section 504 prohibited the withholding of medical care; the plurality
found no violation of section 504 on the particular facts of that case
because the lack of consent for treatment made the infants at issue not
``otherwise qualified.'' \102\ And in Bragdon v. Abbott, the Court held
that title III of the ADA applied to a dentist's refusal to fill the
cavity of a patient with HIV, and that the dentist could defeat the
lawsuit only if he could show that treating the patient presented
``significant health and safety risks'' based ``on medical or other
objective evidence.'' \103\
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\102\ 476 U.S. 610, 624 (1986).
\103\ 524 U.S. 624, 649 (1998).
---------------------------------------------------------------------------
Some lower Federal courts have questioned the manner and reach of
section 504 as applied to medical treatment decisions. In United States
v. University Hospital, the Second Circuit considered the application
of section 504 to infants born with multiple birth defects.\104\ The
court stated that the law's term ``otherwise qualified'' could not
ordinarily be applied ``in the comparatively fluid context of medical
treatment decisions without distorting its plain meaning.'' \105\ Some
courts have read this language as broadly suggesting that section 504
does not apply to medical treatment decisions. \106\ But that is not
the fairest reading of University Hospital. The Second Circuit there
principally relied on the argument that it will often be difficult to
identify discrimination when an individual challenges a covered
entity's treatment of the underlying disability itself.\107\ The lower
court cases following University Hospital seem to draw the same
line.\108\
---------------------------------------------------------------------------
\104\ 729 F.2d 144 (2d Cir. 1984).
\105\ Id. at 156. The lower court cases following University
Hospital have relied on University Hospital's reasoning: ``Where the
handicapping condition is related to the conditions to be treated,
it will rarely, if ever, be possible to say . . . that a particular
decision was `discriminatory.' '' Univ. Hosp. at 157. In Johnson v.
Thompson, one of University Hospital's progeny, the court,
addressing potential medical interventions for a newborn infant with
Spina Bifida, noted that situations exist where individuals with
disabilities could be considered ``otherwise qualified'' even under
University Hospital's view of ``otherwise qualified.'' Johnson v.
Thompson, 971 F.2d 1487,1493 (10th Cir. 1992).
\106\ See, e.g., Schiavo ex rel. Schindler v. Schiavo, 403 F.3d
1289, 1294 (11th Cir. 2005) (``The Rehab Act, like the ADA, was
never intended to apply to decisions involving . . . medical
treatment.'').
\107\ United States v. Univ. Hosp., 729 F.3d at 157 (``Where the
[disabling] condition is related to the condition(s) to be treated,
it will rarely, if ever, be possible to say with certainty that a
particular decision was `discriminatory'.'').
\108\ See Cushing v. Moore, 970 F.2d 1103, 1109 (2d Cir. 1992)
(``[A]s we have observed in the past, we must be careful in applying
Sec. 504's `otherwise qualified' language to programs where a
patient's [disability] gives rise to the need for the services in
question.''); Johnson by Johnson v. Thompson, 971 F.2d 1487, 1494 n.
3 (10th Cir. 1992) (following University Hospital but recognizing
that section 504 might be violated where ``the [disability] that
forms the basis of the section 504 discrimination bears no relation
to the medical treatment sought but denied''); Schiavo ex rel.
Schindler v. Schiavo, 403 F.3d 1289, 1294 (11th Cir. 2005)
(following University Hospital and Johnson based on the conclusion
that the plaintiff sought treatment to alleviate the very condition
that constituted a disability).
---------------------------------------------------------------------------
Consistent with what we believe to be the correct reading of the
statute and the case law, we propose in this rule to draw a distinction
between circumstances where individuals are seeking treatment for the
underlying disability and those in which individuals are seeking
treatment for a separately diagnosable condition or symptom. Compare
proposed Sec. 84.56(b)(1) (providing specific, albeit non-exhaustive,
circumstances in which forbidden discrimination exists whether or not
the individual seeks treatment for a condition or symptom that is
separately diagnosable from the underlying disability) with proposed
Sec. 84.56(b)(2) (providing a broader general rule of
nondiscrimination for cases in which a recipient uses the underlying
disability as the basis for discriminating against an individual who
seeks treatment for a separately diagnosable symptom or medical
condition).
As discussed below, with respect to separately diagnosable
conditions, the proposed rule does not require that the condition be
entirely unrelated to the underlying disability; it is instead intended
to reach circumstances in which the condition for which medical
treatment is sought is sufficiently distinct from the underlying
disability such that the person with the disability can be considered
similarly situated to a person without the disability for treatment
purposes. That a separately diagnosable heart condition is related to
an underlying disability in some manner is irrelevant under the
proposed rule if the underlying disability makes no difference to the
``clinically appropriate treatment'' for the heart condition. This
approach is consistent with the mandate that persons with disabilities
be accorded equal treatment under section 504.
In circumstances in which an individual is seeking treatment for a
condition that is not ``separately diagnosable'' under proposed Sec.
84.56(b)(2), the rule's application is relatively narrow but
nonetheless is critical to prevent prohibited discrimination.
Consistent with proposed Sec. 84.56(c)(1)(ii), the rule would not
apply if the refusal to treat is in circumstances in which the
``recipient typically declines to provide the treatment to any
individual, or reasonably determines based on current medical knowledge
or the best available objective evidence that such medical treatment is
not clinically appropriate for a particular individual.'' The rule,
however, specifies in proposed Sec. 84.56(c)(1)(ii) that providers do
not make legitimate medical judgments when they base decisions on the
criteria contained in Sec. 84.56(b)(1)(i)-(iii): ``[b]ias or
stereotypes about a patient's disability,'' ``[j]udgments that the
individual will be a burden on others,'' or ``[a] belief that the life
of a person with a disability has lesser value than the life of a
person without a disability, or that life with a disability is not
worth living.''
The recognition of the need to defer to reasonable medical judgment
but to prohibit biased decision-making is consistent with University
Hospital and other lower court cases. Even assuming those cases were
correctly decided on their facts, none of them suggest that bias is
permissible under section 504 simply because there is a relationship
between a sought-after medical treatment and an underlying
disability.\109\ In such circumstances, the rule ensures that medical
judgment is in fact being exercised with respect to the person with a
disability's qualification for that treatment. Lower courts have
applied section 504 to medical treatment decisions consistent with this
approach.\110\
---------------------------------------------------------------------------
\109\ See, e.g., Lesley v. Chie, 250 F. 3d 47, 55 (1st Cir.
2001) (finding that, for example, ``a plaintiff may argue that her
physician's decision was so unreasonable--in the sense of being
arbitrary and capricious--as to imply that it was pretext for some
discriminatory motive . . .'').
\110\ Id.; see also Glanz v. Vernick, 756 F. Supp. 632, 638 (D.
Mass. 1991) (``A strict rule of deference would enable doctors to
offer merely pretextual medical opinions to cover up discriminatory
decisions.'').
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Proposed Sec. 84.56(b) elaborates on the basic requirement in
Sec. 84.56(a) by providing a non-exhaustive set of examples of conduct
that would violate that requirement.
Sec. 84.56(b)(1) Denial of Medical Treatment
Proposed Sec. 84.56(b)(1) addresses denial of treatment. It makes
explicit that a recipient is prohibited from denying or limiting
medical treatment to a qualified individual with a disability
[[Page 63404]]
when the denial is based on (i) bias or stereotypes about a patient's
disability; (ii) judgments that an individual will be a burden on
others due to their disability, including, but not limited to,
caregivers, family, or society; or (iii) a belief that the life of a
person with a disability has a lesser value than that of a person
without a disability, or that life with a disability is not worth
living. This paragraph reflects a straightforward application of the
prohibition on discriminating against qualified individuals with
disabilities on the basis of a disability. Denying, limiting, or
withholding treatment for any of the prohibited reasons is
discrimination on the basis of disability because the decision is
driven by the recipient's perception of disability rather than by
consideration of effectiveness of the treatment or other legitimate
reasons.
As defined in the proposed rule at Sec. 84.10, a ``qualified
individual with a disability'' is ``an individual with a disability
who, with or without reasonable modifications to rules, policies, or
practices, the removal of architectural, communication, or
transportation barriers, or the provision of auxiliary aids and
services, meets the essential eligibility requirements for the receipt
of services or the participation in programs or activities provided by
a recipient.'' Proposed Sec. 84.56(b)(1) clarifies that bias,
stereotypes, judgments about burden on others, and beliefs that
disabled lives have lesser value or worth or are not worth living are
not permissible ``essential'' eligibility requirements for medical
treatment. As noted by the Supreme Court in Alexander v. Choate, to
treat such discriminatory factors as ``qualifications'' under section
504 would impermissibly allow the ``benefit'' at issue to ``be defined
in a way that effectively denies qualified individuals [with
disabilities] the meaningful access to which they are entitled.'' \111\
---------------------------------------------------------------------------
\111\ 469 U.S. 287, 301 (1985).
---------------------------------------------------------------------------
In School Board of Nassau County v. Arline, the Supreme Court said
that in section 504, ``Congress acknowledged that society's accumulated
myths and fears about disability and disease are as [disabling] as are
the physical limitations that flow from actual impairment.'' \112\ The
impermissible factors set forth in the proposed rule exemplify the
harmful impact of the myths, fears, and stereotypes that Congress
targeted in the statute. As discussed above, there is significant
evidence that assessments of the impact of a disability on quality of
life may lead a provider to make medical decisions that reflect myths,
fears, and stereotypes, and tend to screen out individuals with
disabilities or classes of individuals with disabilities from fully and
equally enjoying the benefits of medical treatment.
---------------------------------------------------------------------------
\112\ 480 U.S. 273, 284 (1987).
---------------------------------------------------------------------------
Proposed paragraph 84.56(b)(1)(i) confirms the prohibition against
denying or limiting medical treatment based on bias or stereotypes. For
example, refusing to provide a person with an Opioid Use Disorder (OUD)
a referral for Medications for Opioid Use Disorder (MOUD) due to a
provider's belief that persons with OUD will not adhere to treatment
protocols would be prohibited under this paragraph.
Proposed paragraph (b)(1)(ii) prohibits denying or limiting medical
treatment based on judgments that an individual will be a burden on
others due to their disability, including but not limited to
caregivers, family, or society. For example, Sec. 84.56(b)(1)(ii)
would be violated if an individual with a disability needed a medically
indicated surgical procedure but it was denied because of a recipient's
judgment that the postoperative care the patient would need after the
surgery because of the patient's disability would be an unfair burden
on the individual's caregivers, family, or society.
Proposed paragraph (b)(1)(iii) prohibits denying or limiting
medical treatment based on the provider's belief that the life of a
person with a disability has a lesser value than a person without a
disability, or that life with a disability is not worth living. For
example, determinations that an individual with a disability's life is
not worth living because of dependence on others for support or need
for mechanical ventilation, intensive care nursing, tracheotomy, or
other ongoing medical care rest on judgments that do not properly
relate to the individual's ``qualification'' for medical treatment
under section 504. Qualification for the service of life-sustaining
treatment must be based on whether the treatment would be effective for
the medical condition it would be treating, not broader societal
judgments as to the relative value of a person's life due to their
disability or whether life with a disability is worth living.
Many people with disabilities require these kinds of supports,
often on a long-term basis, to survive and thrive. With such supports,
individuals with disabilities can and do live many years, enjoying
meaningful social, family, and professional relationships. By denying
patients with disabilities the opportunity to make their own decisions
regarding whether to receive or continue medically effective life-
sustaining care, recipients override patient autonomy in favor of their
own beliefs regarding the value of the lives of individuals with
disabilities who are dependent on others.
For example, a patient with Alzheimer's disease covered as a
disability under section 504 has developed pneumonia and is in need of
a ventilator to provide assistance breathing. His husband has requested
that physicians start the patient on a ventilator, consistent with what
the patient's husband believes would be his spouse's wishes. The
attending physician, who is a recipient of Federal financial assistance
from HHS and works in a hospital that is also a recipient, tells the
patient and his husband that the patient should not receive such
support, given the poor quality of life the physician believes the
patient experiences, because the latter has Alzheimer's disease. This
situation occurs even though the attending physician normally would
start ventilator support for a patient with pneumonia who needs
assistance breathing. The physician believes that the patient's
Alzheimer's disease renders the continuation of the patient's life to
have no benefit, and therefore the physician declines to put the
patient on the ventilator. The physician has denied life-sustaining
care for the patient based on judgments that the patient's quality of
life renders continued life with a disability not worth living and has
failed to provide care that he would have provided to an individual
without a disability. In denying access to ventilator support, the
doctor has violated proposed Sec. 84.56(b)(1)(iii). If the physician
also denied the ventilator support because of a perception that it
would be a burden for his husband to care for the patient, the
physician would also have violated Sec. 84.56(b)(1)(ii).
As another example, a teenage boy with intellectual and
developmental disabilities develops periodic treatable respiratory
infections and pneumonia due to a chronic condition. Judging his
quality of life to be poor due to cognitive and communication
disabilities, his provider decides to withhold antibiotics and other
medical care when the boy becomes ill. Instead, his provider--who is a
recipient of Federal financial assistance--refers the boy to hospice
care and declines to provide life-sustaining treatment. The provider
makes this decision not because she anticipates that care would be
ineffective, but because she determines that such care would be
effective at prolonging the patient's life and that the patient's life
would not be
[[Page 63405]]
worth living on the basis of the patient's disability. Because the
provider has withheld life-sustaining care based on the judgment that
the patient's life as an individual with a disability is not worth
living, the boy is a qualified individual who has experienced
discrimination on the basis of disability in violation of Sec.
84.56(b)(1)(iii).
The Department notes that this provision does not require
clinicians or other health care providers to offer medical treatment
that is outside their scope of practice. That a treatment is outside
the typical scope of practice of a given provider is a legitimate
nondiscriminatory reason for the denial or limitation of treatment.
However, if the provider would typically provide a referral to another
provider for whom a given treatment is within their scope of practice,
a refusal to provide such a referral on the basis of disability would
likely constitute a violation of this paragraph.
Sec. 84.56(b)(2) Denial of Treatment for a Separate Symptom or
Condition
Proposed Sec. 84.56(b)(2) addresses situations where a person with
a disability seeks or consents to treatment for a separately
diagnosable symptom or medical condition, whether or not the symptom or
condition is itself a disability or is causally connected to the
disability that is the basis for coverage under section 504. (In this
proposed rule, we use the phrase ``underlying disability'' to refer to
a disability that triggers coverage under section 504 and that is
different than the separately diagnosable symptom or medical condition
for which the patient seeks treatment.) Often individuals with a
disability will seek treatment for a separately diagnosable symptom or
medical condition. For example, a person with Down syndrome might seek
a heart transplant to address a heart condition; a person with spinal
muscular atrophy might seek treatment for a severe case of COVID-19; or
a person with a spinal cord injury might seek treatment for depression
with suicidal ideation. The section makes clear that a recipient may
not deny or limit clinically appropriate treatment if it would be
offered to a similarly situated individual without an underlying
disability, including based on predictions about the long-term impact
of the underlying disability on the individual's life expectancy.
Violations of Sec. 84.56(b)(1)(iii) may also violate Sec.
84.56(b)(2). For example, as described above in the discussion of Sec.
84.56(b)(1)(iii), a recipient who denies a ventilator to a patient with
severe Alzheimer's disease who has pneumonia because of a belief that
the patient's life is not worth living based on their disability has
violated Sec. 84.56(b)(1)(iii) if the ventilator would have been
offered to a similarly situated individual without an underlying
disability, in this case, Alzheimer's disease. In addition, the
recipient has also violated Sec. 84.56(b)(2) because of the denial of
treatment of a separate condition.
As another example described above in the discussion of Sec.
84.56(b)(1)(iii), a recipient who withholds antibiotics and other
medical care from a teenage boy with intellectual and developmental
disabilities because of a belief that the boy's life has a lesser value
than the life of a person without a disability violates Sec.
84.56(b)(1)(iii) when the antibiotics and medical care would have been
offered to a similarly situated individual without an underlying
disability . In this situation, Sec. 84.56(b)(2) has also been
violated because of the failure to treat a separate condition.
For purposes of proposed paragraph (b)(2), it does not matter
whether the symptom or condition for which the individual is seeking
treatment is also a disability under section 504. Heart conditions,
COVID-19, and depression could all meet the statute's definition of
disability in appropriate circumstances, but people who experience
discriminatory treatment for these conditions based on an underlying
disability are entitled to the protections of this paragraph. Nor does
it matter for these purposes whether the condition for which the
individual is seeking treatment is in some sense causally related to
the underlying disability if the decision to refuse treatment would not
be made as to similarly situated individuals without the disability.
Individuals with Down syndrome are more likely to experience heart
conditions, and a spinal cord injury may be the event that triggers an
individual's depression. But a refusal to treat a heart condition
because of a judgment regarding the disability of Down syndrome, or a
refusal to treat depression because of a patient's underlying spinal
cord injury, will violate this paragraph if it is made on the basis of
the prohibited grounds.
Medical Treatment Question 1: We recognize that the line
between disabilities may in some cases be more difficult to draw than
in these examples, and we welcome comment on the best way of
articulating the relevant distinctions.
Similarly, a symptom or condition that arises from a common
underlying biological mechanism as a patient's underlying disability,
such as Kaposi's sarcoma in a person with AIDS, is a separately
diagnosable symptom or condition for the purposes of this section. The
crucial point is that where a qualified individual or their authorized
representative seeks or consents to treatment for a separately
diagnosable symptom or condition, a recipient may not deny or limit
that treatment if it would offer that treatment to a similarly situated
person without the underlying disability. In each of these cases, the
recipient will have discriminated against a qualified individual with a
disability on the basis of disability in violation of proposed Sec.
84.56(b)(2).
These obligations must be interpreted in light of the rule of
construction in proposed Sec. 84.56(c) on professional medical
judgment, which indicates that nothing in this section requires the
provision of medical treatment where the recipient has a legitimate,
nondiscriminatory reason for denying or limiting that service or where
the disability renders the individual not qualified for the treatment.
For example, under this rule of construction, a recipient may take into
account a patient's underlying disability to deny a medical treatment
based on their judgment that the treatment would not be effective at
accomplishing its intended effect or because an alternative course of
treatment to the one that would typically be provided to patients
without disabilities would be more likely to be successful in light of
a patient's disability.
Sec. 84.56(b)(3) Provision of Medical Treatment
Proposed Sec. 84.56(b)(3) addresses the discriminatory provision
of medical treatment. It states that if a medical professional provides
an individual with a disability different treatment than the
professional would provide an individual without a disability seeking
assistance with the same condition--and there is nothing about the
disability that impairs the effectiveness, or ease of administration of
the treatment itself or has a medical effect on the condition to which
the treatment is directed--proposed Sec. 84.56(b)(3) has been
violated. For example, if a woman with an intellectual disability seeks
a prescription for contraception but her provider, due to a belief that
any children she may have are likely to have an intellectual
disability, offers only surgical sterilization, the recipient has
violated proposed Sec. 84.56(b)(3) if the provider prescribes
contraception for her other patients without disabilities. However,
proposed Sec. 84.56(b)(3) does not prohibit a recipient from providing
[[Page 63406]]
services or equipment to an individual with an underlying disability
that are different than that provided to others with the same condition
when necessary to provide an effective service or treatment to the
individual with a disability. Where, for example, an individual
recovering from a foot or leg injury or surgery has an anatomical loss
of an arm and is unable to use crutches as a result, it would not
violate Sec. 84.56(b)(3) to recommend or prescribe a knee scooter to
the patient even though the recipient recommends crutches to most
patients in this situation.
Where an underlying disability would interfere with the efficacy of
a particular treatment, a recipient could provide a person with that
disability a different treatment than it would provide to similarly
situated nondisabled individuals. For example, an underlying health
condition that itself is a disability might require an individual to
take a medication that is contraindicated with a particularly effective
antiviral drug. If that individual contracts COVID-19, it would not
violate this section for a recipient to offer a different treatment
than the contraindicated antiviral drug, even if it is generally less
effective. Because the underlying disability would directly inhibit the
utility of the generally more effective drug, the individual would not
be qualified for that treatment under this part.
The Department proposes this provision in part to address
discriminatory conduct based on the belief that persons with
disabilities are entitled to less bodily autonomy than nondisabled
persons--a belief that underpins the history of forced sterilization
provided as ``medical treatment'' for individuals with intellectual,
mental health, and developmental disabilities. In the twentieth
century, over thirty states allowed and funded involuntary
sterilization of disabled women and men with disabilities. In 1927, the
Supreme Court sanctioned such sterilization programs in Buck v. Bell,
ruling that ``society can prevent those who are manifestly unfit from
continuing their kind . . . Three generations of imbeciles are
enough.'' \113\ States continued to use Federal funds for forced
sterilizations of institutionalized individuals until 1978, when HEW
published regulations requiring the ``institutionalized'' individual's
informed consent to the procedure.
---------------------------------------------------------------------------
\113\ Buck v. Bell, 274 U.S. 200, 207 (1927).
---------------------------------------------------------------------------
Yet, many individuals who were subjected to such involuntary
sterilizations experienced and continue to experience trauma and grief
because of these State-sanctioned practices. In June 2022, the New York
Times ran a story about the lingering trauma for three Black sisters
with disabilities who were sterilized in 1973 without their or their
parents' informed consent because clinic workers judged them
``intellectually inferior.'' \114\ Three states--Virginia, North
Carolina, and California--offer compensation to victims of State-
sanctioned programs.\115\
---------------------------------------------------------------------------
\114\ Linda Villarosa, ``The Long Shadow of Eugenics in
America,'' N.Y. Times (Jun. 8, 2022).
\115\ Id.
---------------------------------------------------------------------------
While State-run sterilization programs have ended, involuntary
sterilization continues today. According to a 2021 report, fourteen
states allow a judge to order the sterilization of a person with a
disability who is not under guardianship.\116\ Although specific cases
are difficult to identify due to the secrecy surrounding the procedure,
the Department believes that this is an important area in which to
regulate in order to protect the rights of persons with
disabilities.\117\ The proposed rule would bar recipients from
performing sterilization on the basis of disability to an individual
with a disability where they would not provide the same treatment to an
individual without a disability, unless it has a medical effect on the
condition to which the treatment is directed.\118\
---------------------------------------------------------------------------
\116\ Nat'l Women Law Ctr., Forced Sterilization of Disabled
People in the United States, 56 (Jan. 2022), https://nwlc.org/wp-content/uploads/2022/01/%C6%92.NWLC_SterilizationReport_2021.pdf and
the related Appendix, https://nwlc.org/wp-content/uploads/2022/01/%C6%92.NWLC_SterilizationReport_2022_Appendix.pdf (referencing laws
and court decisions in California, Connecticut, Delaware, Georgia,
Idaho, Indiana, Maine, Maryland, New Jersey, New York, North Dakota,
South Carolina, and Vermont).
\117\ Id. at 32.
\118\ This provision would not prohibit medical treatment where
a person with a disability seeks or consents to sterilization.
---------------------------------------------------------------------------
Medical Treatment Question 2: The Department seeks comment
on other examples of the discriminatory provision of medical treatment
to people with disabilities.
Sec. 84.56(c) Construction
Proposed Sec. 84.56(c) sets forth a series of principles guiding
how Sec. 84.56 should be interpreted.
Sec. 84.56(c)(1) Professional Judgment in Treatment
Proposed Sec. 84.56(c)(1) specifically addresses professional
judgment in treatment and its relationship to the proposed
nondiscrimination provisions regarding medical treatment. Paragraph
(c)(1)(i) provides that nothing in this section requires the provision
of medical treatment where the recipient has a legitimate,
nondiscriminatory reason for denying or limiting that service or where
the disability renders the individual not qualified for the treatment.
For example, it would not violate Sec. 84.56(c)(1)(i) if a recipient
declines to provide chemotherapy to a patient with a disability based
on a judgment that it would not extend the patient's life or mitigate
the symptoms of the patient's cancer. Similarly, a provider who refuses
to perform cardiopulmonary resuscitation on a patient with signs of
irreversible death or a clinician who refuses to administer antifungals
as a treatment for a heart attack would not be in violation of this
section where such interventions would not accomplish the intended goal
of treatment. Nor would a recipient be in violation of this section if
it determined that a patient with a disability would be exceedingly
unlikely to survive cardiac surgery and thus judged that it would not
be medically appropriate to provide such treatment.
Similarly, a recipient would not be in violation of this section if
it determined that an alternative course of treatment to the one that
would typically be provided to patients without disabilities would be
more likely to be successful in light of a patient's disability. For
example, should a recipient determine that the use of an older
medication has a lower risk of side effects because of interactions
with a patient's disability as compared to a newer medication that is
now commonly prescribed, using the older medication would not
constitute an impermissible limitation on access to medical treatment.
These examples, which are based on individualized, fact-specific
inquiries, are legitimate nondiscriminatory reasons for denying or
limiting treatment and remain within the appropriate province of
medical judgment.
We note that proposed Sec. 84.68(b)(8) permits the imposition of
eligibility criteria that screen out people with disabilities from
receiving the benefit of medical care only when they are shown to be
necessary for the provision of this aid, benefit, or service. The rule
does nothing to disturb the ability of physicians to exercise their
professional judgment based on the current medical knowledge or the
best available objective evidence that a treatment is or is not
clinically appropriate.
Paragraph (c)(1)(ii) states that circumstances in which the denial
of treatment is permitted include those in which the recipient
typically declines to provide the treatment to any individual, and
those in which the recipient
[[Page 63407]]
reasonably determines based on current medical knowledge or the best
available objective evidence that such medical treatment is not
clinically appropriate for a particular individual. The regulatory text
makes clear that the criteria prohibited in paragraphs (b)(1)(i)-(iii)
are not legitimate nondiscriminatory reasons for denying or limiting
medical treatment and may not be a basis for a determination that an
individual is not qualified for the treatment or that a treatment is
not clinically appropriate for a particular individual. Recipients may
not judge clinical appropriateness based on bias or stereotypes about a
patient's disability; judgments that the individual will be a burden on
others due to their disability, including, but not limited to,
caregivers, family, or society; or a provider's belief that the life of
a person with a disability has lesser value than the life of a person
without a disability, or that life with a disability is not worth
living.
A provider might also decline to provide a service to any
individual if it is outside their scope of practice. For example, an
orthopedic surgeon might decline to provide a treatment to children,
including children with disabilities, if pediatric surgery is not
within her scope of service. However, the provider could not refuse to
offer pediatric referrals for children with disabilities when it
typically refers children without disabilities to appropriate care.
As another example, assume that a recipient decides to deny a
person with an intellectual disability who uses mechanical ventilation
access to sought-after life-saving care on the grounds that they
believe the presence of a cognitive disability and a need for breathing
support together render the patient's quality of life so poor as to
render continued life of no benefit to them and not worth living
(despite the patient themself or their authorized representative
seeking life-saving treatment). This is not a permissible basis for
determining that a disability has rendered an individual with a
disability unqualified for treatment. Nor is this a legitimate
nondiscriminatory reason for denying or limiting a health service on
the basis of disability, as the denial is motivated by the provider's
belief that a person with a disability has lesser value than a person
without a disability and that life with a disability is not worth
living, both of which are prohibited under paragraph (b)(1)(iii).
In contrast, a recipient could deny medical treatment to a person
with a disability on the grounds that it is not clinically appropriate
if it poses substantial added risk to the patient that cannot be
ameliorated. For example, for a person with a disability at much higher
risk of death from a potential surgery, a recipient's decision not to
provide such a surgical intervention in light of that heightened
mortality risk would be a legitimate, nondiscriminatory reason to deny
the surgery in question even if it was sought by a patient with a
disability.
Similarly, if a recipient declines to provide a treatment on the
grounds that existing evidence only supports its medical effectiveness
for a particular subpopulation that the patient with a disability
seeking treatment is not a part of, this might be a legitimate
nondiscriminatory reason for denying access to the treatment under some
circumstances, provided the recipient generally denies such or similar
treatments to patient populations for whom the evidentiary basis is
similarly lacking or inconclusive. However, if a recipient generally
provides such or similar treatments even in the presence of a similar
evidentiary record for their effectiveness (or lack of effectiveness),
denying such treatments to a patient with a disability on those grounds
may not be a legitimate nondiscriminatory reason.
The Department notes that many types of treatment, such as
pharmacological interventions, are often studied on populations that
are not completely representative of the general patient population,
but these treatments nonetheless are routinely prescribed to patient
populations with conditions excluded from participation in the clinical
trial without further research. In those circumstances, it would not
necessarily be a legitimate nondiscriminatory reason to deny a patient
with a disability access to a broadly prescribed heart medication
simply because patients with her disability were excluded from the
clinical trial that established the medication's effectiveness.
However, should a recipient believe based on current medical knowledge
or the best available objective evidence that the heart medication is
likely to be ineffective, have dangerous side effects, or otherwise be
harmful to patients with that disability, this would constitute a
legitimate nondiscriminatory reason to deny access. Physicians have
substantial discretion to assess mixed or inconclusive evidence
regarding effectiveness according to their own judgment.
Medical Treatment Question 3: The Department seeks
comment, including from health care professionals and people with
disabilities, on the examples described in this section, whether
additional examples are needed, and on the appropriate balance between
prohibiting discriminatory conduct and ensuring legitimate professional
judgments.
Sec. 84.56(c)(2) Consent
Proposed Sec. 84.56(c)(2) addresses consent. Section
84.56(c)(2)(i) makes clear that this section does not require a
recipient to provide medical treatment to an individual where the
individual, or the person legally authorized to make medical decisions
on behalf of that individual, does not consent to that treatment. This
subsection thus adopts the plurality's holding in Bowen v. American
Hospital Association that the denial of treatment to an individual
because of a lack of consent to treatment ``cannot violate Sec. 504.''
\119\ (The Department conceded that point during the Bowen
litigation.\120\) In such a case, the Bowen plurality said, the lack of
consent means that the individual is not ``qualified'' for treatment--
because treatment without consent violates deep-rooted common-law
principles endorsed in every State--and the denial of treatment would
be based on the lack of consent, not on disability.\121\
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\119\ 476 U.S. 610, 630 (1986).
\120\ Id.
\121\ See id.
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Another issue arising from the Bowen litigation is the extent to
which the Department is able to issue regulations concerning newborn
infants. The district court in Bowen had ``declared invalid and
enjoined `[a]ny other actions' of the Secretary `to regulate treatment
involving impaired newborn infants taken under authority of Section
504, including currently pending investigation and other enforcement
actions.' '' \122\ But the Bowen plurality specifically rejected any
reading of that injunction as barring ``all possible regulatory and
investigative activity that might involve the provision of health care
to handicapped infants.'' \123\ Instead, the four-justice plurality
read the injunction as limited to cases in which the Department sought
to require medical treatment despite a lack of parental consent.\124\
Indeed, the plurality specifically concluded ``that `handicapped
individual' as used in Sec. 504 includes an infant who is born with a
congenital defect,'' and that the statute protects qualified infants
against disability-based discrimination in
[[Page 63408]]
medical services.\125\ The three Bowen dissenters rejected the
plurality's narrow reading of the injunction; they believed that the
district court did in fact bar the Department from ``issu[ing] any
regulations whatsoever that dealt with infants' medical care.'' \126\
But they concluded that such a broad injunction was not consistent with
the law.\127\ In short, of the seven justices who addressed the issue
in Bowen, not one endorsed an injunction that would entirely bar the
Secretary from regulating medical discrimination against disabled
newborns.\128\ Accordingly, the Department does not believe that the
Bowen injunction, as affirmed by the Supreme Court, requires us to
carve newborns out of this rule. The Department does, however, follow
the Bowen plurality in declining to require a recipient to provide
medical treatment to an individual where the individual, or the person
legally authorized to make medical decisions on behalf of that
individual, does not consent to that treatment in situations where
consent would typically be required regardless of whether the
individual had a covered disability.
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\122\ Id. at 626 n.11 (plurality opinion) (quoting the district
court's injunction).
\123\ Id.
\124\ See id.
\125\ Id. at 624.
\126\ Id. at 650 (White, J., dissenting).
\127\ See id. at 656 (``Where a decision regarding medical
treatment for a handicapped newborn properly falls within the
statutory provision, it should be subject to the constraints set
forth in Sec. 504. Consequently, I would reverse the judgment
below.'').
\128\ Chief Justice Burger concurred in the result without
opinion, and therefore expressed no view on the issue, and Justice
Rehnquist took no part in the decision.
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Denial of treatment is not the only way a recipient can
discriminate on the basis of disability in its covered programs or
activities. When it enacted the Civil Rights Restoration Act two years
after Bowen, Congress explicitly provided that section 504 applies to
``all of the operations of'' a covered program or activity.\129\ The
operations of covered health care providers are not typically limited
to providing treatments. They also include the provision of advice and
the process of providing information to comply with informed-consent
requirements established by state law and otherwise. Proposed paragraph
(c)(2)(ii) makes clear that discrimination in obtaining informed
consent is prohibited independently of whether that discrimination is
followed by a decision to withhold treatment--or whether such a
subsequent decision to withhold treatment is itself discriminatory. For
example, a covered hospital may not repeatedly request that a patient
with a disability (or the patient's legally authorized representative)
consent to a do-not-resuscitate order, where it would not make such
repeated requests of a similarly situated nondisabled patient. In
addition, a recipient may not condition access to treatment on a
patient with a disability or their authorized representative agreeing
to a particular advanced care planning decision when they would not
implement or enforce such a requirement on a similarly situated
nondisabled patient.
---------------------------------------------------------------------------
\129\ 29 U.S.C. 794(b).
---------------------------------------------------------------------------
Numerous reports have demonstrated the existence of this sort of
biased treatment. The case of Sarah McSweeney, documented as part of a
National Public Radio (NPR) investigation into multiple reports of
individuals with disabilities pressured to agree to the withdrawing or
withholding of life-sustaining care, offers one example of potential
discrimination in access to life-sustaining care.\130\ Ms. McSweeney
was a 45-year-old woman with multiple disabilities who was admitted to
the hospital due to concerns that she may have contracted COVID-19.
Shortly after arriving, her guardian received a call from the hospital
questioning why her Physician Orders for Life-Sustaining Treatment
(POLST) form indicated that Ms. McSweeney should receive life-
sustaining treatment if she required it. Over the next several weeks,
media reports indicate that hospital personnel pressured Ms.
McSweeney's guardian to consent to the withdrawal or withholding of
life-sustaining care, often expressing skepticism that a person whose
disabilities precluded mobility and speech could be considered to have
quality of life. Ultimately, Ms. McSweeney died of sepsis due to
aspiration pneumonia, a typically treatable condition, although her
guardians repeatedly pushed for full care measures that the doctors
declined to administer.\131\
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\130\ Joseph Shapiro, ``As Hospitals Fear Being Overwhelmed by
COVID-19, Do the Disabled Get the Same Access?'', Nat'l Pub. Radio
(Dec. 14, 2020) https://www.npr.org/2020/12/14/945056176/as-hospitals-fear-being-overwhelmed-by-covid-19-do-the-disabled-get-the-same-acc.
\131\ Id.
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In some cases, patients with disabilities with routine illnesses or
their authorized representatives are pressured by their physicians to
agree to not be resuscitated, against their desires and wishes,\132\
with potentially deadly consequences. For example, a 2012 report from
the National Disability Rights Network documented instances of
providers steering individuals with disabilities or their family
members to agree to decline life-sustaining care or consent to the
withdrawal of life-sustaining care.\133\ In one instance, family
members reported that the patient's doctor informed them that their
relative--a 72-year-old patient with a developmental disability--would
have poor quality of life based on their disability and, as a result,
life-sustaining treatment should no longer be used. \134\ Though they
initially consented to the withdrawal of treatment, the family
eventually withdrew that consent, though they experienced pressure from
the clinician when attempting to restore treatment and nutrition.
---------------------------------------------------------------------------
\132\ Lauren Drake, New Oregon Law Bars Discrimination Against
People with Disabilities During Pandemic, Or. Pub. Broadcasting
(Jul. 11, 2020), https://www.opb.org/news/article/law-bars-disability-discrimination-covid-19/.
\133\ Nat'l Disability Rts. Network, Devaluing People with
Disabilities: Medical Procedures that Violate Civil Rights (May
2012), https://www.ndrn.org/wp-content/uploads/2012/05/Devaluing-People-with-Disabilities.pdf.
\134\ Id. at 17.
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In its report, Medical Futility and Disability Bias, NCD discusses
the example of Terrie Lincoln who, at age 19, was in an automobile
accident that severed her spinal cord and caused her to become
quadriplegic.\135\ The report describes that when Terrie ``was in the
hospital just following her accident, Terrie's doctors repeatedly tried
to influence her family to `pull the plug,' stating that Terrie was a
`vegetable' and, even if she were to regain consciousness, would have
no quality of life.'' \136\ When Terrie did regain consciousness, she
was pressured by her doctors to forego additional medical treatment
that would extend her life due to judgments that life with the
disability of quadriplegia was not worth living. This would be a
violation of the proposed regulation under both 84.56(b)(1) and
(c)(2)(ii). Terrie persisted, later coming off the ventilator, earning
degrees in social work and public administration, and becoming a
disability rights advocate and mother. It is the Department's intent
for the proposed Sec. 84.56(c)(2)(ii) to apply both to instances in
which a recipient seeks consent to withdraw care in situations where
the withdrawal of care would not be sought from a person without a
disability (such as to deny routine care for a treatable medical
condition for which the patient has given no indication that they wish
to decline treatment) and situations where the manner in which consent
is sought is discriminatory in nature (such as by
[[Page 63409]]
pressuring patients with a disability or their authorized
representatives to agree to provide consent to decline or withdraw
treatment or to agree to a particular advanced care planning decision
authorizing such declining or withdrawal in the future).
---------------------------------------------------------------------------
\135\ Nat'l Council on Disability, Medical Futility and
Disability Bias, 27 (Nov. 20, 2019), https://ncd.gov/sites/default/files/NCD_Medical_Futility_Report_508.pdf.
\136\ Id.
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Sec. 84.56(c)(3) Providing Information
Proposed Sec. 84.56(c)(3) addresses the information exchange
between the recipient and the patient with a disability concerning the
provision of information and potential courses of treatment and their
implications, including the option of foregoing treatment. This
provision indicates that nothing in this section precludes a provider
from providing an individual with a disability or their authorized
representative with information regarding the implications of different
courses of treatment based on current medical knowledge or the best
available objective evidence.\137\ The ability of a person with a
disability or their authorized representative to understand the
available options and to make an informed decision about the medical
treatment depends in part on the expertise and candor of the treating
professionals. However, as proposed Sec. 84.56(c)(2)(ii) indicates,
the recipient is prohibited from discriminating on the basis of
disability in seeking consent for the decision to treat or to forego
treatment by, for example, unduly pressuring a person with a disability
or their authorized representative to conform to the treating
professional's position or by relying on the prohibited factors listed
in proposed Sec. 84.56(b)(1)(i)-(iii).
---------------------------------------------------------------------------
\137\ This requirement with regard to the provision of
information is not a new standard and is consistent with similar
requirements in the medical ethics context. See, e.g., Am. Med.
Ass'n., Code of Med. Ethics, Chap. 2: Opp. on Consent, Communication
and Decision Making (2019), https://www.ama-assn.org/system/files/2019-06/code-of-medical-ethics-chapter-2.pdf.
---------------------------------------------------------------------------
The Department realizes that providing regulatory requirements
concerning medical treatment requires careful consideration.
Medical Treatment Question 4: The Department seeks comment
from all stakeholders on the risks and benefits of the proposed
regulatory choices that the Department has put forth in this section.
Medical Treatment Question 5: The Department also seeks
comment on whether the term ``medical treatment'' adequately
encompasses the range of services that should be covered under this
nondiscrimination provision.
Sec. 84.57 Value Assessment Methods
The proposed rule seeks to address discrimination on the basis of
disability in the use of value assessment methods. The Department has
been aware of potential disability discrimination in value assessment
for some time. For example, in 1992, the Department declined to
authorize a demonstration program in Oregon that relied on the use of
the Quality Adjusted Life Year (QALY), one specific methodology of
value assessment whose application in Oregon (and common application
elsewhere in the present day) discounted the value of life extension on
the basis of disability, to determine whether certain treatments for
people living with certain disabilities would be covered. The
Department cited concerns of discrimination in value assessment methods
in its response, stating that ``Oregon's plan in substantial part
values the life of an individual with a disability less than the life
of an individual without a disability. This premise is discriminatory
and inconsistent with the Americans with Disabilities Act.'' \138\ The
Department further noted that this discrimination and inconsistency
stemmed, in part, from the approach that ``quantifies stereotypic
assumptions about persons with disabilities.'' \139\ In 2010, Congress
prohibited the use of the QALY in Medicare \140\ and within the Patient
Centered Outcomes Research Institute created by the ACA.\141\ Many
disability rights advocates have expressed concerns about disability
discrimination in value assessment methods.\142\
---------------------------------------------------------------------------
\138\ Letter from Louis Sullivan, Sec'y, U.S. Dep't of Health
and Human Servs., to Barbara Roberts, Governor, State of Or. (Aug.
3,1992), reprinted in 1992 CCH Medicare-Medicaid Guide New Devs.
40,406A, HHS Papers Explaining Rejection of Oregon Medicaid Waiver,
HHS News Release, Secretarial Letter, and Analysis (Aug. 3, 1992)
(the waiver was later approved after significant modification).
\139\ Id.
\140\ 42 U.S.C. 1320e-1(c)(1). In addition, recent legislation
has been introduced in the House of Representatives to ban the use
of QALYs outright in federally funded health programs. See
Protecting Health Care for All Patients Act of 2023, H.R. 485, 118th
Congress (2023) (Report No. 118-65, Part I).
\141\ 42 U.S.C. 1320e-1(e).
\142\ See NCIL Resolution Opposing the Use of QALYs (Quality-
Adjusted Life Years), Not Dead Yet, http://notdeadyet.org/ncil-resolution-opposing-the-use-of-qalys-quality-adjusted-life-years
(last visited May 22, 2023) (Not Dead Yet and the Autistic Self-
Advocacy Network joined in the resolution); see also Not Dead Yet,
NCIL Membership Adopts Resolution Opposing Health Insurers' Use of
QALYs (2020), https://notdeadyet.org/2020/08/ncil-membership-adopts-resolution-opposing-health-insurers-use-of-qalys.html; Disability
Rts. Educ. and Def. Fund (DREDF), Pharmaceutical Analyses Based on
the QALY Violate Disability Nondiscrimination Law (Sept. 21, 2021),
https://dredf.org/2021/09/23/pharmaceutical-analyses-based-on-the-qaly-violate-disability-nondiscrimination-law/ (``[T]he QALY relies
on a set of discriminatory assumptions that devalue life with a
disability, disadvantaging people with disabilities seeking to
access care based on subjective assessments of quality of life.'');
Lives Worth Living: Addressing the Fentanyl Crisis, Protecting
Critical Lifelines, and Combatting Discrimination Against Those with
Disabilities: Hearing on H.R. 467, H.R. 498, H.R. 501, and H.R. 485
Before the Subcomm. on Health of the H. Comm. on Energy and
Commerce, 118th Cong. (2023) (statement of Kandi Pickard, President
& CEO, Nat'l Down Syndrome Society), https://d1dth6e84htgma.cloudfront.net/Witness_Testimony_Pickard_HE_02_01_2023_065c903370.pdf?updated_at=2023-01-30T21:38:38.787Z (speaking on her support of Protecting Health
Care for All Patients Act, H.R. 485, 118th Cong. (2023)). As
discussed elsewhere in this preamble section, value assessment
methods that may be discriminatory when used to determine people
with disabilities' access to goods and services may not be
discriminatory in another context (i.e., their use purely for
academic research). Some general statements about QALY, such as the
one quoted in this footnote, do not distinguish between various
types of QALY calculations or uses of the concept.
---------------------------------------------------------------------------
Despite this prior history, value assessment methods have been
increasingly used by recipients to determine the cost-effectiveness of
goods and services. These determinations can inform price negotiations,
value-based purchasing arrangements that link provider payment to
performance and outcomes, and other things that affect the degree to
which individuals can access aids, benefits, or services, as well as
the terms or conditions under which they can access them.
Not all methods of value assessment or their uses are
discriminatory. Many value assessment methods can play an important
role in cost containment and quality improvement efforts. However, the
Department is concerned that some value assessment frameworks that have
been adopted by recipients may discriminate on the basis of disability,
in violation of existing prohibitions against such discrimination in
health services.\143\ In this rulemaking, the Department seeks to
explicitly apply these obligations to the use of value assessment
methods and provide relevant information for recipients on their
application. The Department has focused on methods that discount the
value of life extension for people with disabilities in this proposed
rule, as the vast majority of documentation of disability
discrimination concerns in value assessment have focused on the
discounting of life extension.\144\
---------------------------------------------------------------------------
\143\ See 45 CFR 84.52(a).
\144\ See, e.g., Disability Rts. Educ. & Def. Fund (DREDF),
Pharmaceutical Analyses Based on the QALY Violate Disability
Nondiscrimination Law (2021), https://dredf.org/wp-content/uploads/2021/09/ICER-Analyses-Based-on-the-QALY-Violate-Disability-Nondiscrimination-Law-9-17-2021.pdf.
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Where value assessments use methods for calculating value that
place a lower value on life extension for a group of individuals based
on disability and where such methods are then used to
[[Page 63410]]
deny or afford an unequal opportunity to qualified individuals with
disabilities with respect to the eligibility or referral for, or
provision or withdrawal of an aid, benefit, or service, a recipient
using such value assessment methods for these purposes is in violation
of section 504. For example, a recipient that uses a value assessment
method that assigns a greater value to extending the life of people
without disabilities than to extending the life of people with
disabilities to determine whether a particular drug will be subject to
additional utilization management controls or placed on a higher tier
of a formulary would likely violate section 504. The recipient is using
a value assessment that assigns a greater value to extending the life
of people without disabilities with respect to the eligibility or
referral for, or provision or withdrawal of an aid, benefit, or
service--in this instance, to determine the terms or conditions under
which they are made available.
An analysis from the Institute for Clinical and Economic Review
(ICER)--whose work is often used to inform decision-making by
recipients--valued a year of life of a person with multiple sclerosis
with a score of eight on the Expanded Disability Status Scale
(describing an individual who relies entirely on a wheelchair for
mobility but is nonetheless able to be out of bed for much of the day
\145\) at 0.0211, representing approximately a 98% reduction in value
relative to a year of life for a healthy, nondisabled person.\146\
Similarly, another report from ICER valued a year of life with cystic
fibrosis with a ppFEV1 (percent predicted forced expiratory volume in
one second, an established measure of lung function for cystic
fibrosis) between 20-29% at 0.653, representing a 34.7% reduction in
value relative to a year of life for a healthy, nondisabled
individual.\147\ When a recipient uses these life extension valuations
with respect to determining eligibility or referral for, or provision
or withdrawal of any aid, benefit, or service, including the terms or
conditions under which they are made available, it ascribes a lower
value to extending the lives of people with specific disabilities
relative to extending those without disabilities or with other
disabilities.
---------------------------------------------------------------------------
\145\ Kurtzke Expanded Disability Status Scale (EDSS), Nat'l
Multiple Sclerosis Soc'y, http://www.nationalmssociety.org/nationalmssociety/media/msnationalfiles/brochures/10-2-3-29-edss_form.pdf (last visited May 22, 2023).
\146\ Inst. for Clinical & Econ. Rev., Siponimod for the
Treatment of Secondary Progressive Multiple Sclerosis: Effectiveness
and Value, Final Evidence Report, p. 52 (2019), https://icer.org/wp-content/uploads/2020/10/ICER_MS_Final_Evidence_Report_062019.pdf
(citing Annie Hawton & Colin Green, Health Utilities for Multiple
Sclerosis, 19 Value Health 460-468 (2016)).
\147\ Michael S. Schechter et al., Inhaled Aztreonam Versus
Inhaled Tobramycin in Cystic Fibrosis: An Economic Valuation. 12
Annals of the Am. Thoracic Soc'y 1030-38 (2015); Inst. for Clinical
& Econ. Rev., Modular Treatments for Cystic Fibrosis: Effectiveness
and Value: Final Evidence Report and Meeting Summary, p. 66 (2020),
https://icer.org/wp-content/uploads/2020/08/ICER_CF_Final_Report_092320.pdf.
---------------------------------------------------------------------------
This remains the case even if the value of extending the lives of
people with disabilities is compared to a less discounted population
rather than a hypothetical non-disabled, healthy adult. For example, a
value assessment calculation using a general population average utility
of 0.816 for life extension for persons without cystic fibrosis and a
utility of 0.653 for life extension for persons with cystic fibrosis
would still assign lower value to extending the lives of persons with
cystic fibrosis relative to persons without. The outcome remains the
same even if the general population was also receiving a less severe
discount to the value of life extension.
Recipients often rely on value assessments to make decisions
regarding coverage, cost, and other decisions with serious implications
for access for individuals with disabilities. Relying on a measure that
discounts the value of extending the lives of people with disabilities
relative to people without disabilities raises serious concerns in
light of the consequences for access for individuals with disabilities.
It is important that recipients do not engage in discriminatory uses of
value assessment methods.
In its report, ``Quality-Adjusted Life Years and the Devaluation of
Life with Disability,'' NCD discussed the way that the QALY places a
lower value on extending the lives of individuals with disabilities and
chronic illnesses.\148\ NCD notes that a variety of alternative
nondiscriminatory methods exist, and provided examples. The Department
declines to endorse any specific method in this rulemaking. NCD noted
that many payers, including those who receive Federal financial
assistance such as State Medicaid agencies, have made use of or planned
to make use of value assessments in a discriminatory fashion in order
to evaluate particular health care interventions.\149\ For example, in
April 2018, one State's Medicaid Drug Utilization Review Board made use
of a $150,000 per QALY threshold for valuing a treatment for cystic
fibrosis, calculated based on an analysis that assigned a lower value
to extending the lives of persons with cystic fibrosis than persons
without cystic fibrosis.\150\
---------------------------------------------------------------------------
\148\ Nat'l Council on Disability, Quality-Adjusted Life Years
and the Devaluation of Life with Disability, p. 39 (2019), https://ncd.gov/sites/default/files/NCD_Quality_Adjusted_Life_Report_508.pdf. The NCD Report stated:
``By favoring those with no functional impairments, the protocols
implicitly endorse the belief that the lives of individuals without
disabilities are more valuable than that of their unfortunate
counterparts'' (citing Wendy Hensel et al., Playing God: The
Legality of Plans Denying Scarce Resources to People with
Disabilities in Public Health Emergencies, 63 Fla. L. Rev. 755
(2011)). Note that the discussion of QALY in the NCD report applies
to uses of QALY associated with life extension, not to other uses of
value assessment that assess effects of a health care intervention
on quality of life without discounting the value of life-extension.
The concern articulated in the report does not apply to the latter
use case.
\149\ Nat'l Council on Disability, Quality-Adjusted Life Years
and the Devaluation of Life with Disability, 13-14 (2019), https://ncd.gov/sites/default/files/NCD_Quality_Adjusted_Life_Report_508.pdf.
\150\ N.Y. State Dep't of Health, N.Y. State Medicaid Drug
Utilization Review (DUR) Board Meeting Summary (Apr. 26, 2018),
https://www.health.ny.gov/health_care/medicaid/program/dur/meetings/2018/04/summary_durb.pdf.
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For the reasons discussed above, the Department proposes to add
Sec. 84.57 on value assessment methods, indicating that a recipient
shall not, directly or through contractual, licensing, or other
arrangements, use any measure, assessment, or tool that discounts the
value of life extension on the basis of disability to deny or afford an
unequal opportunity to qualified individuals with disabilities with
respect to the eligibility or referral for, or provision or withdrawal
of any aid, benefit, or service, including the terms or conditions
under which they are made available. The proposed provision does not
identify the use of any specific method of value assessment but instead
prohibits measures that discount the value of life extension on the
basis of disability when used to deny or provide an unequal opportunity
for a qualified person with a disability to participate in or benefit
from an aid, benefit, or service.
We note that the discriminatory use of a measure by a recipient
constitutes a violation of this provision, not necessarily that the
measure itself does. The use of such a measure in a discriminatory
fashion could come about through a variety of mechanisms, including,
but not limited to: (1) the use of a threshold that uses such a measure
(such as a cost-per-QALY threshold) for purposes of determining
coverage or the imposition of additional terms or conditions for
availability of a intervention, (2) the use of such a measure for
ranking interventions relative to each other within or between disease
categories, or (3) otherwise making use of such analyses to inform
reimbursement or utilization
[[Page 63411]]
management decisions even if they are not by themselves dispositive. In
contrast, the proposed provision would permit the use of such measures
that were not used to deny or afford an unequal opportunity to
qualified individuals with disabilities with respect to the eligibility
or referral for, or provision or withdrawal of an aid, benefit, or
service; for example, in academic research. Accordingly, the use of a
methodology that is discriminatory when applied to determine
eligibility, referral for, or provision or withdrawal of an aid,
benefit, or service would not be discriminatory if used in academic
research to assess the relative contribution of different policy
changes or medical innovations on national or global population health.
However, a recipient who makes use of such academic research for
purposes of determining eligibility, referral for, or provision or
withdrawal of an aid, benefit, or service may still violate section 504
if the use of the methodology employed within the research product is
discriminatory when applied in the new context.
Similarly, elements of value assessment methods that are
discriminatory in some contexts--such as for valuing life extension--
may not be discriminatory in other contexts. For example, the use of
utility weights for valuing quality of life improvements can be used in
a way that is not discriminatory, even if the use of the same utility
weights to discount life extension would be discriminatory, if used to
restrict or limit access by people with disabilities. For example, if
recipients use a measure of value that does not discount the value of
life extension on the basis of disability but does use utility weights
for valuing quality of life improvements from a treatment in a way that
is not discriminatory, such use of utility weights for assessing
quality of life improvements likely would not violate this provision.
However, using a measure that does discount life-extension to restrict
or limit access could violate the proposed provision.
Value Assessment Methods Question 1: The Department seeks
comment on how value assessment tools and methods may provide unequal
opportunities to individuals with disabilities.
Value Assessment Methods Question 2: The Department seeks
comment on other types of disability discrimination in value assessment
not already specifically addressed within the proposed rulemaking.
Value Assessment Methods Question 3: The proposed value
assessment provision applies specifically to contexts in which
eligibility, referral for, or provision or withdrawal of an aid,
benefit, or service is being determined. The preamble discussion of the
provision clarifies that the provision would not apply to academic
research alone. However, the Department seeks comment on the extent to
which, despite this intended specificity, the provision would have a
chilling effect on academic research.
Sec. 84.60 Children, Parents, Caregivers, Foster Parents, and
Prospective Parents With Disabilities 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
that are designed to protect children and strengthen families. These
barriers arise in a variety of contexts, including parent-child
reunification services; policies or practices that discourage and/or
prohibit parents from receiving assistance with childcare
responsibilities from professional and natural supports; and safety and
risk assessment policies that conflate disability with parental
unfitness.
Federally funded child welfare programs and activities are covered
social service programs under section 504. As such, the children with
disabilities served by the child welfare system, as well as parents,
caregivers, foster parents, and prospective parents with disabilities,
are within the class of individuals with disabilities to whom section
504 protections extend. The Department proposes to add a new Sec.
84.60 to the section 504 regulation that will more clearly apply the
nondiscrimination requirements of section 504, which are consistent
with and reflect the requirements of the ADA, to child welfare programs
and activities. Additionally, the proposed section adds specific
regulatory provisions that illustrate the types of child welfare
actions that are prohibited discrimination under section 504.
A 2012 NCD report, ``Rocking the Cradle: Ensuring the Rights of
Parents with Disabilities and Their Children,'' \151\ found that
parents with disabilities involved in the child welfare system have
experienced disproportionately higher rates of child removals than
nondisabled parents \152\ and are often presumed to be unfit because of
their disabilities.\153\ Parents with disabilities have also been
inappropriately referred to ``one size fits all'' reunification
services.\154\ Some jurisdictions, where State law has explicitly
allowed courts to consider whether the presence of a disability makes a
parent unable to discharge their responsibilities, have denied disabled
parents access to reunification services. For example, as of 2015, 33
states' statutes expressly included a parent's disability as an
aggravated circumstance \155\ that allows a court to bypass the
reunification process by deeming that the disability makes the parent
unlikely to benefit from reunification services.\156\ While most State
laws do not allow for an automatic disqualification based on
disability, the inclusion of disability as an aggravating circumstance
invites unfounded presumptions by the courts and administering State
agencies that disability in and of itself, can be disqualifying.
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\151\ Nat'l Council on Disability, Rocking the Cradle: Ensuring
the Rights of Parents with Disabilities and Their Children (Sept.
27, 2012), www.ncd.gov/publications/2012/Sep272012/.
\152\ Id. at 77-78.
\153\ Id. at 94.
\154\ Id. at 89.
\155\ See 42 U.S.C. 671(a)(15)(D)(i). States are not required to
provide assistance or services to prevent removal or reunify
children when the parent has subjected a child to aggravated
circumstances as defined by State law.
\156\ Nat'l Council on Disability, supra note 152 at 91. See
also Traci LaLiberte et al., Child Protection Services and Parents
with Intellectual and Developmental Disabilities, 30 J. Appl. Res
Intellectual Disability, 30: 521-532 (2017), https://pubmed.ncbi.nlm.nih.gov/28000335/.
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NCD's report provided case studies where children were removed from
parents based on the presumption of unfitness due to parental
disability. The report includes ten case studies of parents with
disabilities with firsthand experience with the child welfare system.
The studies provide examples of discriminatory barriers and bias
parents with disabilities encounter at key decision points in the child
welfare system, including reporting for abuse and neglect, safety and
risk assessments, case opening, and permanency decision. One study
described the experience of a couple who were presumed to be unfit to
care for their two-day-old daughter because both parents were blind.
The concerns centered on the parents' visual impairments, the mother's
unsuccessful first attempts at breastfeeding, and the parents' lack of
specialized parenting training. The infant was held in state custody
for 57 days until a court dismissed the child protective action against
the parents.\157\
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\157\ Id. at 94.
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Another case study described the experience of a mother with
intellectual disabilities who lived in supported
[[Page 63412]]
housing with her five-year-old daughter and received ongoing parent-
child intervention services. As a result of Intelligence Quotient (IQ)
testing, social workers convinced the mother to allow visits between
her daughter and her estranged nondisabled father, despite the mother's
reluctance.\158\ Social workers insisted that visits with the father
continue even after the mother reported that her daughter was afraid of
the father and had suddenly started wetting herself. The visits
terminated after a police investigation and medical examination
substantiated allegations of sexual abuse by the father, though the
social workers still questioned the mother's parenting ability.\159\
The experience of this mother and daughter is an example of how
negative assumptions about IQ as an indicator of parenting skills
served as a basis to question the mother's ability to safely care for
and protect her daughter.
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\158\ Id. at 97.
\159\ Id. at 97.
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In examining the use of IQ scores to determine a parent's capacity
or fitness to safely care for a child, NCD found that, particularly for
parents with intellectual disabilities, reliance on the tests results
in high rates of removal and loss of child custody. These tests
continue to be administered for the purpose of child custody planning
despite the research evidence demonstrating that parental IQ is a poor
predictor of parenting competence.\160\ When norm-referenced
assessments are used, (e.g., measures or assessments that compare a
person's knowledge or skills to the knowledge or skills of a group
considered to be normal), the parenting practices and behaviors of
parents with intellectual disability are ``judged subnormal and
inadequate rather than simply different.'' \161\ IQ tests are some of
the best-known examples of such norm-referenced assessments. NCD also
found that ``sole reliance on the IQ, resulting in diagnosis of
intellectual disability, leads to states having `bypass' statutes,' ''
where child removals may occur simply on a categorical or diagnostic
basis, without any individualized assessment or observation of
parenting.\162\ Similar to the NCD report, a 2017 review of appellate
court cases that culminated in termination of parental rights where
parents had intellectual and developmental disabilities found a
continued uncritical reliance on parental IQ to assess parental
fitness. The study found:
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\160\ Id. at 132 (citing David McConnell et al., Stereotypes,
Parents with Intellectual Disability and Child Protection, 24 J.
Soc. Welfare & Fam. L. 3, 297 (2002)).
\161\ Id.
\162\ Id. at 133 (citing Teresa Ostler, Assessment of Parenting
Competency in Mothers with Mental Illness, Univ. of Chicago (2008)).
[In] a majority of US cases involving a parent with intellectual
and developmental disabilities, appealing a termination of their
parental rights, parental IQ or intellectual functioning range often
was considered and relied upon by the court in upholding the
decision. The rate of reversal was far lower than the dependency and
general civil bench trial rates of reversal. It is worrying that
while every decision was reasoned differently, and all cases had
multiple issues, the courts consistently considered parental IQ,
rarely reviewed evaluation methods and results and frequently made
statements that reflected a view of parental IQ as static, fixed and
necessarily undermining of parenting capacity and ability to
learn.\163\
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\163\ Ella Callow et al., Judicial Reliance on Parental IQ in
Appellate-Level Child Welfare Cases Involving Parents with
Intellectual and Developmental Disabilities, 30 J. Appl. Res.
Intellectual Disabilities 553, 555-56 (2017).
Support for protecting the rights of parents, caregivers, foster
parents, and prospective parents with disabilities involved in the
child welfare system continues to gain momentum. In 2017, the American
Bar Association adopted a resolution urging Federal, State,
territorial, and tribal governments to enact legislation and implement
policies limiting the circumstances when a parent's disability could be
a basis for the denial of parental access to their child or termination
of parental rights, or when a prospective parent's disability could be
a bar in adoption and foster care.\164\ Seventeen states have enacted
laws prohibiting the use of parental disability as a basis for denial
or restriction of parenting responsibilities.\165\
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\164\ ``RESOLVED, That the American Bar Association urges all
federal, state, territorial, and tribal governments to enact
legislation and implement public policy providing that custody,
visitation, and access shall not be denied or restricted, nor shall
a child be removed or parental rights be terminated, based on a
parent's disability, absent a showing--supported by clear and
convincing evidence--that the disability is causally related to a
harm or an imminent risk of harm to the child that cannot be
alleviated with appropriate services, supports, and other reasonable
modifications . . . FURTHER RESOLVED, That the American Bar
Association urges all federal, state, territorial, and tribal
governments to enact legislation and implement public policy
providing that a prospective parent's disability shall not be a bar
to adoption or foster care when the adoption or foster care
placement is determined to be in the best interest of the child.''
Am. Bar Ass'n, ABA Policy Resolution 114: Disabled Parents and
Custody, Visitation, and Termination of Parental Rights, (Feb. 6,
2017), https://www.americanbar.org/content/dam/aba/administrative/commission-disability-rights/114.pdf.
\165\ Heller Sch. for Soc. Pol'y and Mgmt., Brandeis U., NRCPD,
Map of Current State Legislation Supporting Parents with
Disabilities, https://heller.brandeis.edu/parents-with-disabilities/map/index.html (last updated (Oct. 9, 2020).), https://heller.brandeis.edu/parents-with-disabilities/map/index.html).
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OCR has received over 300 complaints alleging disability
discrimination in child welfare services and activities within the last
six years. The complaints allege discrimination in a wide range of
child welfare services that are subject to nondiscrimination
requirements including: child protection investigations; child and
family assessments; case plan development; parent-child visitation;
child placement decision-making; provision of community-based services;
foster and adoptive parent assessments; and determinations to terminate
parent-child reunification efforts. OCR's investigations have revealed
that some child welfare entities have implemented policies, practices,
and procedures that contribute to unnecessary removals of children from
parents with disabilities and create barriers to parent-child
reunification, permanency planning, and other critical child welfare
services. Additionally, as discussed later in this section, OCR has
investigated complaints of discrimination against children with
disabilities in the child welfare system. As a result of these
investigations, child welfare entities and OCR have worked t together
to establish Voluntary Resolution Agreements (VRA), some of which are
discussed in greater detail below, required child welfare agencies to
create, revise, establish, and implement policies, practices, and
procedures to prohibit discrimination against parents with disabilities
and ensure that the full range of agency programs are accessible to
parents with physical and mental disabilities as required by section
504 and title II. These complaints and VRAs are consistent with the
2012 NCD report finding that the ``child welfare system is ill-equipped
to support parents with disabilities and their families.'' \166\
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\166\ Nat'l Council on Disability, supra note 152 at 18.
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According to data submitted to the Administration for Children and
Families (ACF) through its Adoption and Foster Care Analysis and
Reporting System (AFCARS) as reported in November 2021, more than
216,838 children entered the U.S. foster care system due at least in
part to safety concerns related to parental fitness during 2020.\167\
Thirteen percent, or
[[Page 63413]]
28,771 children, were removed from a parent or caregiver based, in
part, on ``Caretaker Inability to Cope Due to Illness or Other
Reasons'' as one of the circumstances associated with child's removal.
The AFCARS regulation defines ``caretaker inability to cope due to
illness or other reasons'' as a ``a physical or emotional illness, or
disabling condition adversely affecting the caretaker's ability to care
for the child.'' AFCARS submissions in 2020 on the ``Caretaker
Inability to Cope'' out-of-home case data element demonstrate that a
caretaker's physical illness, emotional illness, or disabling condition
continues to be a factor in child removals. Reporting on this data
element from 2015-2020 shows that title IV-E agencies removed fourteen
percent of children who entered the U.S. foster care system due in part
to safety concerns related to a caretaker's physical illness, emotional
illness, or disabling condition, i.e., concerns labeled ``Caretaker
Inability to Cope.''
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\167\ The Adoption and Foster Care Analysis and Reporting System
(AFCARS) collects case-level information on all children in foster
care and those who have been adopted with Title IV-E agency
involvement. See U.S. Dep't of Health & Hum. Servs., Admin. for
Children & Families, AFCARS Report # 28 (Nov. 19, 2021), https://www.acf.hhs.gov/cb/report/afcars-report-28.
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As noted by research published in Children and Youth Services
Review, in the 2012 AFCARS data, parental disability was the only
parental characteristic based on a parent's physical or mental
attributes categorized in State child welfare policies or in Federal
data collection tools as a consideration when determining whether to
remove a child from their home or to terminate parental rights.\168\ In
the AFCARS data, ``caretaker inability to cope is the only removal
reason that is a parental characteristic based on a physical or mental
condition rather than a changeable behavior.'' \169\ The data elements
reviewed remained in place through 2020.
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\168\ Sharon DeZelar et al., Use of Parent Disability as a
Removal Reason for Children in Foster Care in the U.S., 86 Children
& Youth Services Rev. 128-134 (2018).
\169\ E. Lightfoot, et al., Child well-being in Minnesota--
Policy strategies for Improving Child Welfare Services for Parents
With Disabilities and their Children (Child Welfare Policy Brief No.
10), Ctr. for Advanced Studies in Child Welfare, Univ. Minn. (Winter
2016).
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The University of Minnesota, Center for Advanced Studies in Child
Welfare noted in its child welfare policy brief on the use of parental
disability as a consideration in removing children and termination of
parental rights (TPR), that having parental disability listed as a
removal reason or as grounds for TPR ``can lead those involved in the
system to believe that parental disabilities lead to abuse, rather than
focusing on how to appropriately provide services.'' \170\
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\170\ Id.
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In 2015, in response to increased disability-related child welfare
complaints and calls from entities such as NCD for the Federal
Government to take immediate action to protect the rights of
individuals with disabilities, OCR, ACF, and DOJ jointly published
``Protecting the Rights of Parents and Prospective Parents with
Disabilities: Technical Assistance for State and Local Child Welfare
Agencies and Courts under Title II of the Americans with Disabilities
Act and Section 504 of the Rehabilitation Act.'' \171\ The technical
assistance document provides important information to assist child
welfare agencies and courts in meeting their obligations under Federal
disability rights laws to provide equal access to child welfare
services and activities in a nondiscriminatory manner. HHS also
published an online video training series to educate child welfare
practitioners about the application of Federal disability rights laws
to child welfare programs and activities. The series provides an
overview of Federal disability rights laws, discusses protections that
apply to some individuals in recovery, and promotes awareness of
Medication Assisted Treatment and Medications for Opioid Use Disorder
(MOUD) as an effective approach to the treatment of substance use
disorders.\172\
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\171\ U.S. Dep't Health & Hum. Servs., U.S. Dep't of Justice,
Protecting the Rights of Parents and Prospective Parents with
Disabilities: Technical Assistance for State and Local Child Welfare
Agencies and Courts under Title II of the Americans with
Disabilities Act and section 504 of the Rehabilitation Act (2015),
https://www.hhs.gov/sites/default/files/disability.pdf (last visited
Aug. 17, 2022).
\172\ See U.S. Dep't of Health & Hum. Servs., Opioid Use
Disorder and Civil Rights Video and Webinar Series, https://ncsacw.samhsa.gov/topics/medication-assisted-treatment.aspx (last
visited June 22, 2022).
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Despite HHS efforts to raise awareness of Federal disability rights
protections, OCR continues to receive new complaints about
discrimination against individuals with disabilities in the child
welfare system. These cases involve, for example, the removal of
children from parents with intellectual disabilities. In the section
that follows, we discuss complaints where child welfare agencies
allegedly made custody decisions based on stereotypes of disability,
failed to offer reasonable modifications in the parental evaluation
process, and failed to recognize the need for modifications on the
basis of disability as required by section 504. The creation of revised
policies and procedures by each of these agencies shows that the many
child welfare agencies' current policies do not reflect the
longstanding antidiscrimination requirements of section 504. This
rulemaking seeks to clarify child welfare agency obligations and
alleviate the need to correct agency policies through enforcement
actions.
Reasonable Modifications for Parents With Disabilities in the Child
Welfare System
In a recent case, OCR investigated allegations involving a State
child welfare agency's removal of two infant children from a mother and
father with intellectual disabilities. The parents alleged that the
State agency acted based in significant part on their IQ scores. OCR's
investigation raised concerns that the agency subjected parents with
intellectual disabilities to unlawful treatment when it removed the
children from their custody, refused to reunify them with their
children, limited their visitation rights, and failed to provide them
with appropriate reunification services. In response to that
investigation, the state agency agreed to update those policies to
clarify that it will not make decisions about whether a participant
with a disability represents a threat to the safety of a child on the
basis of stereotypes or generalizations about persons with
disabilities, or on a participant's diagnosis or intelligence measure
(e.g., IQ score) alone. The agency also agreed that, as part of its
assessment process, participants with actual or suspected disabilities
can be referred to appropriate medical, mental health, or other
professionals to obtain specific necessary information (such as
reasonable modifications).\173\
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\173\ See U.S. Dep't of Health & Hum. Servs., Voluntary
Resolution Agreement between the U.S. Dep't of Health & Hum. Servs.,
Off. for Civil Rts. and Oregon Dep't of Human Serv. (Nov. 20, 2019),
https://www.hhs.gov/sites/default/files/odhs-vra.pdf.
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In another case, an OCR investigation revealed that a State denied
a prospective parent with chronic fatigue syndrome and other
disabilities the opportunity to become a foster parent. OCR determined
that the child welfare agency failed to make an individualized
assessment of the applicant's ability to be a foster/adoptive parent
and improperly used disability as a criterion to make placement
decisions.\174\ OCR also found that the agency failed to consider
whether support services offered to other foster/adoptive parents would
have allowed the applicant to participate in the program if they were
made available.\175\ In response to OCR's
[[Page 63414]]
findings, the State agency agreed to develop and implement standard
operating procedures for documenting and assessing foster care and
adoption program applicants and participants with disabilities. The
agency also agreed to implement a process for maintaining a record of
administration and results of assessments and to provide annual
training to staff involved in assessing and/or supporting foster care
and adoption program applicants and participants.\176\
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\174\ U.S. Dep't of Health & Hum. Servs., Off. for Civil Rts.,
Georgia Enters into Agreement to Ensure Equal Access for Individuals
with Disabilities to Foster and Adoption Programs and Services (Jan.
11, 2016), https://www.hhs.gov/civil-rights/for-providers/compliance-enforcement/agreements/georgia-dcfs-bulletin/index.html.
\175\ Id.
\176\ See U.S. Dep't of Health & Hum. Servs., Settlement
Agreement between the U.S. Dep't of Health & Hum. Servs., Off. for
Civil Rtss and the GA Dep't of Human Res. (Dec. 15, 2015), https://www.hhs.gov/sites/default/files/dfcs-revised-settlement-agreement.pdf.
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OCR also investigated a complaint filed by an aunt and uncle who
alleged that a State child welfare agency denied their request for
emergency custody and placement of their young niece and nephew based
on the uncle's being in recovery from Opioid Use Disorder (OUD), and
his long-term use of physician-prescribed Suboxone as a medication for
opioid use disorder (MOUD). The investigation indicated that the uncle
had not tested positive for illegal use of drugs during his treatment
and the aunt expected to be the children's primary caregiver as her
husband worked full-time. OCR's investigation identified systemic
deficiencies regarding the agency's implementation of its policies,
practices, and procedures to ensure the civil rights of individuals
with disabilities, including individuals in recovery from OUD, in the
State child welfare system. To address these concerns, the State agency
agreed to update its policies to clarify that section 504 and title II
of the ADA protect qualified individuals with substance use disorder
from unlawful discrimination. The updated policies reflect that MOUD is
not the illegal use of drugs and that an individual's prescribed use of
MOUD does not mean that the individual is substituting one addiction
for another. The agency also agreed to develop and provide mandatory
annual training for its staff on the requirements of Federal civil
rights laws and working with people with disabilities, including
individuals in recovery from substance use disorder.\177\
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\177\ See U.S. Dep't of Health & Hum. Servs., Voluntary
Resolution Agreement between the U.S. Dep't of Health & Hum. Servs.,
Off. for Civil Rts. and the W.V. Dep't of Health & Hum. Servs,
Bureau for Child. & Families (Apr. 22, 2020), https://www.hhs.gov/sites/default/files/ocr-agreement-with-wv-dhhr.pdf.
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After a joint investigation, OCR and DOJ found that a State child
welfare agency seeking to terminate parental rights of a mother with a
developmental disability violated title II of the ADA and section 504
by denying the mother supports and services provided to nondisabled
parents and denying the mother reasonable modifications to accommodate
her disability.\178\ The mother and her infant were reunified two years
after the infant's removal from the hospital. HHS and DOJ reached an
agreement with the State agency to take specific actions to resolve
violations of section 504 and title II. Among other actions, the agency
agreed to revise its child welfare policies that cite disability or any
specific disability, impairment, medical condition, intelligence
measure (e.g., IQ score), or diagnosis to remove from the policies the
mere fact of such disability, impairment, condition, intelligence
measure, or diagnosis as a basis for removal of custody (legal,
physical, or otherwise). The agency agreed the new policies would
reflect key requirements under the ADA and section 504--that
individuals with disabilities must be treated on a case-by-case basis
consistent with facts and objective evidence and that they may not be
treated on the basis of generalizations or stereotypes. The agency
agreed to provide notice to individuals involved in the child welfare
system of the process to make a request for reasonable modifications
and auxiliary aids and services.\179\
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\178\ U.S. Dep't of Health & Hum. Servs., U.S. Dept of Justice,
Letter from the U.S. Dep't of Justice, Civil Rts. Division and U.S.
Dep't of Health & Hum. Servs., Off. for Civil Rts. to the M.A. Dep't
of Children and Families (Jan. 29, 2015), https://www.hhs.gov/sites/default/files/mass_lof.pdf.
\179\ See U.S. Dep't of Health & Hum. Servs., U.S. Dep't of
Justice, Settlement between the U.S. Departments of Justice and U.S.
Dep't of Health & Hum. Servs. and Massachusetts Department of
Children and Families (Nov. 19, 2020), 19, 2020), https://archive.ada.gov/mdcf_sa.html.
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Similarly, OCR investigated a complaint alleging a State agency
failed to provide modified support services and modifications necessary
for a young mother with an intellectual disability to have an effective
and meaningful opportunity to reunite with her young child. The
investigation led to significant technical assistance to the agency.
The State agency revised its nondiscrimination policies, issued an
administrative order committing the agency to inclusivity and
reasonable modifications in the provision of child welfare services,
and implemented new disability rights training for agency staff.\180\
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\180\ U.S. Dep't of Health & Hum. Servs., Off. for Civil Rts.,
HHS OCR Provides Technical Assistance to Ensure New Jersey
Department of Children and Families Protect Parents with
Disabilities from Discrimination (Nov. 13, 2020), https://public3.pagefreezer.com/content/HHS.gov/31-12-2020T08:51/https://www.hhs.gov/about/news/2020/11/13/hhs-ocr-provides-technical-assistance-ensure-new-jersey-department-children-families-protect-parents-disabilities-from-discrimination.html.
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A recent settlement of a Federal lawsuit brought against a State
agency which alleged violations of the ADA and section 504 demonstrates
the agency's failure to provide required modifications. The plaintiff,
a mother with physical disabilities, alleged her newborn son was
removed from the hospital, four days after his birth, based on
discriminatory assumptions about the parenting abilities of people with
disabilities. The State agency and the parent entered into a settlement
agreement, which requires that the State agency implement policy
changes to protect the rights of people with disabilities from
discrimination, to ensure (1) that an individual assessment of a
parent's disability is obtained prior to referring the family for
services; (2) that the provision of any ``reasonable modification''
needed by a parent with a disability is made in order that the disabled
parent can participate in recommended programs and/or services, and (3)
that the agency will develop and implement training to address
stereotypes about people with disabilities.\181\
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\181\ Cesaire ex rel. E.B. v. Tony, No. 20-CV-61169 (S.D. Fla.
Feb. 1, 2021).
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The Department's enforcement actions related to disability
discrimination, as well as Federal litigation involving child welfare
entities under section 504, demonstrate the need for rulemaking to
clarify child welfare entities' nondiscrimination obligations under the
Rehabilitation Act. The numerous and diverse range of issues raised in
complaints received by OCR show that covered child welfare entities
need specific articulation of their longstanding obligations under
section 504.
Most Integrated Settings in Foster Care
Child welfare agencies must place qualified individuals with
disabilities in the most integrated setting appropriate to the needs of
the child, consistent with the requirements of existing Sec.
84.4(b)(2) and proposed Sec. 84.68(d), which is identical to 28 CFR
35.130(d) in the ADA title II regulations, and proposed Sec. 84.76.
The integration mandate is discussed in depth in the preamble
discussion of Sec. 84.76. Pursuant to these requirements, a recipient
may not engage in the unnecessary or unjustified segregation of
children with disabilities, such as default placement in institutional
or other congregate care, and it must work
[[Page 63415]]
to facilitate family foster home placements consistent with this
requirement.
Title IV-E agencies accept billions of dollars from HHS to provide
safe foster care placements for children and youth who cannot remain in
their homes. As a condition of receiving these funds, child welfare
entities must comply with Federal child welfare law and disability
rights laws that require agencies to place foster children and youth in
the least restrictive and most family-like setting appropriate to their
needs. Congregate care should never be considered the most appropriate
long-term placement for children, regardless of their level of
disability. This stance is reflected in the Federal enforcement of the
integration mandate. After investigating one children's mental health
system, DOJ found that ``[w]ith access to timely and appropriate
services, even children with intensive behavioral health needs and a
history of congregate facility placement are able to return to or
remain in family homes where they are more likely to have improved
clinical and functional outcomes, better school attendance and
performance, and increased behavioral and emotional strengths compared
to children receiving care in institutions.'' \182\ This DOJ finding
cited, and is consistent with, research in the field.\183\ Yet, despite
the recognition that congregate care should not be a default placement
for children,\184\ many children and older foster care youth continue
to face potentially discriminatory barriers to placements in family-
like foster home settings that can meet their needs. For example, class
action lawsuits have been filed in several jurisdictions challenging
the practice of denying foster children, including those with
disabilities, placement in the most integrated setting appropriate to
children's needs and of placing them in inappropriate settings such as
hotels and refurbished juvenile detention centers. In these cases,
other State entities, such as Medicaid agencies and other human service
or health agencies, may also provide support services to ensure
children can be adequately supported in a family foster care home. To
meet the integration mandate for foster children's services, State
agencies must often coordinate different supports and services to
support community placements.
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\182\ U.S. Dep't of Justice, Investigation of the State of
Alaska's Behavioral Health System for Children (Dec. 15, 2022)
https://www.justice.gov/opa/press-release/file/1558151/download.
\183\ Carrie W. Rishel, et al., Preventing the Residential
Placement of Young Children: A Multidisciplinary Investigation of
Challenges and Opportunities in a Rural State, 37 W. Va. Univ.
Children & Youth Servs. Rev. 9 (2014), http://dx.doi.org/10.1016/j.childyouth.2013.11.027.
\184\ Based on research finding that family homes improve
outcomes for children in foster care, Federal funding policy
recognizes that that congregate care placements should be used only
when the child's care needs cannot be adequately addressed in a less
restrictive environment. See Bipartisan Budget Act of 2018, Public
Law 115-123, Sec. 50742. Federal funding for congregate care, as a
placement setting, may be used only under limited circumstances,
when a qualified professional determines that the needs of the child
cannot currently be met in a family foster home, and that a
residential treatment program offers the appropriate level of care
for the child in the least restrictive environment The Family First
Prevention Services Act (FFPSA), part of the Bipartisan Budget Act
of 2018, imposed restrictions, implemented in October 2019, on the
use of title IV-E reimbursement for congregate care placements
experienced by children and older youth.
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In 2015, a class action was brought on behalf of children under the
care and custody of the Arizona Department of Child Safety that alleged
the State agency failed, in part, to ensure that foster children with
disabilities receive behavioral health services and placements in
family-like foster homes. The February 2021 Settlement Agreement
requires that the State agency make considerable improvements in
providing behavioral health and other necessary services to children in
foster care.\185\
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\185\ See B.K v. Faust, et al., No.1 cv-15-00185 (D. Az. Oct.13,
2020), https://www.childrensrights.org/wp-content/uploads/2020/10/District-of-Arizona-Court-Order-101320.pdf and Tinsley v. Faust,
No.1 cv-15-00185 Final Approval Order, (D. Az. Feb. 12, 2021).
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In a recent case in Maine, DOJ found that the State of Maine
violated the title II integration mandate by unnecessarily segregating
children with mental health and developmental disabilities in
psychiatric hospitals, residential treatment facilities, and a State-
operated juvenile detention facility.\186\ The State failed to provide
services in community-based settings appropriate to children's needs,
in part due to lengthy service waitlists, provider shortages, and
under-resourced crisis centers. DOJ also issued a Letter of Findings to
West Virginia in 2015, notifying the state that it violated the
integration mandate by segregating children with mental health
conditions in residential treatment facilities.\187\ A settlement
agreement was reached in 2019 to expand and improve in-home and
community-based mental health services throughout the state to better
meet children's needs.\188\
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\186\ U.S. Dep't of Justice, Justice Department Finds Maine in
Violation of ADA For Over-Institutionalization of Children with
Disabilities (June 22, 2022), https://www.justice.gov/opa/pr/justice-department-finds-maine-violation-ada-over-institutionalization-children-disabilities.
\187\ U.S. Dep't of Justice, Letter of Findings re: United
States' Investigation of the West Virginia Children's Mental Health
System Pursuant to the Americans with Disabilities Act (June 1,
2015) https://www.justice.gov/sites/default/files/crt/legacy/2015/06/01/wv-ada_findings_6-1-15.pdf.
\188\ U.S. Dep't of Justice, Department of Justice Reaches
Agreement to Resolve Americans With Disabilities Act Investigation
of West Virginia's Children's Mental Health System (May 14, 2019),
https://www.justice.gov/opa/pr/department-justice-reaches-agreement-resolve-americans-disabilities-act-investigation-west.
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In other lawsuits, plaintiffs' claims have not yet been fully
adjudicated. However, the allegations supporting the claims suggest
that there may be a need for regulation in this area. For example,
there have been other lawsuits relating to the treatment of children
with disabilities under State care. In Illinois, the Cook County Public
Guardian was sued on behalf of children with disabilities under the
care and custody of the Illinois Department of Children and Family
Services.\189\ The lawsuit alleges that, between 2015 and 2017, more
than 800 foster children with disabilities were unnecessarily held in
psychiatric hospitals. According to the lawsuit, eighty percent of the
more than 800 children were held for ten days or more beyond the time
they should have been discharged. More than 40% were confined for a
month or longer; 15% had to wait two months or longer. The lawsuit
further alleges that the Illinois child welfare agency is aware of the
problems yet has failed to ensure that these children are discharged to
family-like foster homes or other community-based therapeutic settings.
In March 2021, the court ruled that the plaintiffs had pled actionable
discrimination under section 504 and the ADA.\190\
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\189\ Golbert v. Walker, No. 18 C 8176 (N.D. Ill. Dec. 13,
2018).
\190\ Golbert v. Walker, No. 18 C 8176, 24, Order Denying Motion
to Dismiss (N.D. Ill. Mar. 18, 2021).
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In Oregon, two separate class actions were filed on behalf of
children with disabilities under the care and custody of Oregon
Department of Human Services. The first lawsuit alleged the State
agency systematically placed foster children with mental health
disabilities in hotel rooms or offices and denied children with
disabilities family foster homes and other community-based therapeutic
placements. The lawsuit also alleged the children are
disproportionately denied, by reason of their disability, the
opportunity to benefit from a State program to provide safe, nurturing
homes for children and from the mental health services offered by the
child welfare agency.\191\ A second lawsuit was filed in 2019 alleging
children in Oregon's foster care system, including a sub-class of
children who have emotional, intellectual, psychological, and physical
[[Page 63416]]
disabilities, were denied appropriate family home and therapeutic
placements.\192\ Children with disabilities represent 50% of children
currently in Oregon's foster care system. The lawsuit alleges Oregon
sends foster children to out-of-state congregate care and other
restrictive institutions including repurposed juvenile detention
facilities, instead of placing them in family foster homes and
therapeutic community-based settings within the State. The suit further
alleges that foster children with disabilities are also denied
community-based placements and services to ensure access to the least
restrictive settings. Similar to the first lawsuit, this class action
alleges children are placed in homeless shelters and minimally
refurbished juvenile delinquent institutions, and it alleges children
are held in hospitals beyond the time when hospitalization is medically
necessary. In September 2021, the district court ruled the plaintiffs'
allegations sufficient to state a claim for disability discrimination
under the integration mandate.\193\
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\191\ A.R. v. State of Or., No. 3:16-cv-01895, Amended Complaint
(D. Or. Sept. 30, 2016).
\192\ Wyatt B. v. Brown, 6:19-cv-00556, Complaint (D. Or. Apr.
16, 2019).
\193\ Wyatt B. v. Brown, 6:19-cv-00556 (D. Or. Sept. 27, 2021)
(denying in part Defendants' motion to dismiss).
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In 2021, lawsuits were filed by advocates on behalf of foster
children and youth with disabilities in the custody of the Washington
State Department of Children, Youth and Families (DCYF) and the Alabama
Department of Human Resources. The Washington complaint alleges that
the State agency denies foster children with behavioral and
developmental disabilities appropriate services, supports, and stable
placements in family-like settings. The action further alleges that
foster children with disabilities experience multiple, short-term
emergency placements in motels, one-night stay foster care homes, and
DCYF offices. It also alleges that some foster children are segregated
with other youth with behavioral and developmental disabilities in
congregate care settings or are sent to out-of-state institutions away
from their families and communities.\194\
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\194\ D.S. v. Wash. Dep't of Children, Youth & Families, No.
2:21-cv-00113 (W.D. Wash. Apr. 12, 2021); AA v. Buckner, No.
2:21CV367 (M.D. Ala Oct. 29, 2021).
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The Alabama lawsuit alleges that the State child welfare agency
discriminates against youth with mental impairments by unnecessarily
segregating them in restrictive, institutional psychiatric facilities.
The complaint alleges that a foster youth with a ``mental impairment''
was held unnecessarily in a psychiatric residential treatment facility
because the State agency failed to locate a community-based placement
with appropriate supports and services. Though the State child welfare
agency determined the foster youth was eligible for community-based
placement, according to the complaint, she remained in a restricted and
segregated placement for more than a year due to the agency's failure
to develop an adequate system of community support and recruit and
train foster families. The complaint asserts that children placed in
institutional settings are less likely to achieve permanency,
experience poor child welfare outcomes, and are more likely to age out
of foster care without appropriate community-based care to facilitate a
successful transition to adulthood.
In 2022, a class action complaint was filed by advocates on behalf
of foster children with disabilities in the custody of the North
Carolina Department of Health and Human Services (DHHS). The complaint
alleges DHHS unnecessarily segregates foster children with disabilities
from their home communities and routinely isolates them in restrictive,
and often clinically inappropriate, institutional settings, such as
psychiatric residential treatment facilities (PRTF).\195\ The complaint
further alleges that the children of color disproportionately bear the
burden of unnecessary and segregated confinement in PRTFs. According to
the complaint, some of the named plaintiffs receive heavy cocktails of
mind-altering psychotropic medications, are subject to physical
restraints, and have suffered bullying by PRTF staff.
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\195\ Timothy B. v. N.C. Dep't of Health and Human Srvs.,
Complaint, No. 1:22-cv1046 (M.D. N.C. Dec. 6, 2022).
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Child Welfare Question 1: The Department seeks comment on
additional examples of the application of the most integrated setting
requirement to child welfare programs and welcomes comments on any
additional points for consideration regarding integration of children
with disabilities in child welfare contexts.
Discrimination Prohibited in Child Welfare Services
Proposed Sec. 84.60(a) states that no qualified individual with a
disability may be excluded from participation in, be denied the
benefits of, or otherwise be subjected to discrimination under any
child welfare program or activity. This section is consistent with the
general nondiscrimination provisions contained at Sec. 84.68(a), as
well as the general nondiscrimination provisions applicable to health,
welfare, and social services programs at Sec. 84.52(a), and applies
them directly to child welfare entities who are recipients of Federal
funding. This proposed provision does not enlarge the existing
protections of section 504, but the foregoing discussion, as well as
OCR's own outreach initiatives to child welfare advocates and
recipients, strongly indicate that child welfare entities who are
recipients of Federal funding are not all aware of their
responsibilities under the statute. This section is meant to ensure
that individuals with disabilities served by child welfare programs are
afforded full and equal opportunities to access and benefit from child
welfare programs and activities as required by section 504.
Proposed Sec. 84.60(a)(2)(i) states that discrimination includes
decisions based on speculation, stereotypes, or generalizations about a
parent, caregiver, foster parent, or prospective parent. Section
84.60(a)(2)(ii) prohibits such discriminatory decisions about a child
with a disability.
The term ``parents'' is defined in proposed Sec. 84.10 as
biological or adoptive parents or legal guardians, as determined by
applicable State law. The definition is consistent with 42 U.S.C.
675(2) in title IV-E of the Social Security Act, the statute governing
Federal payments for foster care, adoption assistance, and prevention
services. The term ``caregivers'' as used in this section includes
relatives and other kinship caregivers who provide for the physical,
emotional, and social needs of the child. The term ``foster parents''
means individuals who provide a temporary home and support for children
in foster care as defined in 45 CFR 1355.20. This category may include
relatives or nonrelatives that are licensed or approved to provide care
for foster children. The term ``companion'' as defined in Sec. 84.10
means a family member, friend, or associate of an individual seeking
access to a program or activity of a recipient, who, along with such
individual, is an appropriate person with whom the recipient should
communicate. The term ``prospective parents'' as defined in Sec. 84.10
means individuals who are seeking to become foster or adoptive parents.
The term ``qualified person with a disability'' or ``qualified
individual with a disability'' means a person with a disability who
meets the essential eligibility requirements of the child welfare
program or activity, with or without the provision of reasonable
modifications, the provision of appropriate auxiliary aids and
services, or the removal of architectural,
[[Page 63417]]
communication, or transportation barriers. ``Program or activity,'' as
defined in Sec. 84.10, means all of the operations of any entity, any
part of which is extended Federal financial assistance. In the context
of child welfare, ``all operations'' includes but is not limited to,
child protective services investigations and child removals; safety and
risk assessments; in-home skill-based services; case planning and
service planning; community-based services including mental health and
substance use disorder programs; visitation; reunification; out of home
placements and agency placement decisions (e.g., foster care, kinship
care, and adoption); services to help current and former foster care
youths transition into adulthood and achieve self-sufficiency; and
guardianship. A child welfare entity's participation in dependency
hearings, child placements, and agency placement decisions and
proceedings to terminate parental rights are also ``operations'' within
the definition of program or activity in Sec. 84.10.
Proposed paragraph (b) of Sec. 84.60 articulates prohibitions
included under paragraph (a) and outlines the types of child welfare
actions that are prohibited when they occur based on the fact that a
qualified individual who is a parent, caregiver, foster parent, or
prospective parent has a disability, including the denial of custody,
control, or visitation related to a child; termination of parental
rights; and the denial of access to adoption or foster care services;.
This list is not exhaustive, but rather, illustrative.
Child Welfare Question 2: The Department invites comment
on this list of prohibited activities in the child welfare context,
especially on whether commenters believe it is complete.
Proposed paragraph (b)(1) of Sec. 84.60 addresses the denial of
custody or control of children from qualified parents with
disabilities. This paragraph prohibits child welfare programs from
petitioning for the removal of a child from a parent because of
speculation, stereotypes, or generalizations about a parent's
disability.
Proposed paragraph (b)(2) of Sec. 84.60 requires that recipients
ensure that qualified parents with disabilities are not denied the
opportunity to preserve their families that is equal to the opportunity
that recipients offer to parents without disabilities. Child welfare
programs or activities may not limit access to reunification services
for parents with disabilities or provide reunification services to
parents with disabilities that are inaccessible.
Proposed paragraph (b)(3) of Sec. 84.60 addresses the termination
of parental rights or legal guardianship of a qualified parent or legal
guardian with a disability. Much like paragraph (b)(1), it means that a
child welfare entity may not file a petition to terminate a parent's
legal rights over a child because of speculation, stereotypes, or
generalizations surrounding the parent's disability.
Proposed paragraph (b)(4) of Sec. 84.60 affirms the right of a
qualified caregiver, foster parent, companion, or prospective parent
with a disability to be given an opportunity to participate in or
benefit from child welfare programs and activities. Child welfare
programs must ensure that they provide equal opportunities for
caregivers, foster parents, companions, or prospective parents with
disabilities to benefit from those programs, including by providing
auxiliary aids and services and reasonable modifications.
Pressuring a qualified individual with a disability not to seek,
apply, or participate in Federally funded child welfare aids, benefits,
or services may also result in a denial of the opportunity to
participate in or benefit from child welfare programs and activities
under proposed paragraph (b)(4) of Sec. 84.60. For example, child
welfare entities may not inappropriately pressure parents with
disabilities towards voluntary relinquishment of parental rights or
improperly influence a parent's decision to participate in visitation
and reunification activities on the basis of the parent's disability.
Another example of prohibited conduct under paragraph (b)(4) is using
criteria that discriminate on the basis of disability. This includes
the use of discriminatory screening processes or requirements for
service.
Proposed paragraph (c) of Sec. 84.60 requires recipients to
establish procedures for referring qualified parents who, because of
disability, need or are believed to need modified or adaptive services
(e.g., individualized parenting training) or reasonable modifications
and to ensure that tests, assessments, and other evaluation materials
are tailored to assess specific areas of disability-related needs. For
purposes of this paragraph, the term ``service provider'' refers to
individual providers or agencies who evaluate families to determine
their need for behavioral health, parenting skills, and other services
to address safety concerns and strengthen a parent's protective
capacity. This paragraph requires that when referring a parent with an
actual or suspected disability for parent evaluations, recipients
ensure that service providers use tests and assessment materials that
are tailored and adapted to assess parenting capability and
functioning. For example, service providers may assess a parent,
caregiver, foster parent, or prospective parent's capabilities,
functioning, and ability to care for a child by potentially drawing
from a wealth of sources. When assessing parenting capabilities, the
service provider should use methods that are adapted where necessary to
address the parent's disability and that broadly evaluate an
individual's strengths, needs, and abilities based on objective
evidence, including direct observation, interviews, and medical and
social history. For example, this requirement would prevent the use of
a single general IQ score to evaluate the parenting capabilities of an
individual with an intellectual disability.
Child Welfare Question 3: The Department seeks comment on
how agencies would implement these referral procedures, ensure that
service providers use the methods described, and prohibit the use of IQ
alone as the basis for a parenting assessment.
Section 504 requires that these assessments consider the strengths
and needs of a parent, caregiver, foster parent, or prospective parent
with a disability and not base decisions on preconceived notions
resulting from generalizations and stereotypes about individuals with
disabilities. It prohibits child welfare agencies from making decisions
about foster parents and prospective foster parents that are based on
assumptions or generalizations about people with disabilities.
Disabilities rarely manifest in the exact same way from person to
person, and decisions about a parent, caregiver, foster parent, or
prospective parent's ability to care for a child, must be based on
facts regarding each individual.\196\
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\196\ See U.S. Dep't of Health & Hum. Servs., U.S. Dep't of
Justice, Protecting the Rights of Parents and Prospective Parents
with Disabilities: Technical Assistance for State and Local Child
Welfare Agencies and Courts under Title II of the Americans with
Disabilities Act and section 504 of the Rehabilitation Act (Aug.
2015). https://www.ada.gov/doj_hhs_ta/child_welfare_tahttps://www.hhs.gov/sites/default/files/disability.pdf.
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In some circumstances, the risk of harm to a child may warrant
removal, denial of reunification, denial of visitation, or termination
of parental rights. Risk of harm to a child may be analyzed through
section 504's provision addressing ``direct threat.'' Proposed Sec.
84.75 states that recipients are not required to provide benefits or
services to individuals with disabilities if those individuals pose a
direct threat to others. In determining whether an
[[Page 63418]]
individual poses a direct threat, a recipient must make an
individualized assessment based on reasonable judgment from current
medical knowledge or the best available objective evidence to ascertain
the nature, duration, and severity of the risk to the child; the
probability that the potential injury to the child will actually occur;
and whether reasonable modifications of policies, practices, or
procedures will mitigate the risk. Where a parent with a disability
poses a significant risk to the child's health and safety, recipients
would be permitted to delay or deny reunification or delay or deny
visitation with a parent.
The Department believes that the proposed regulation furthers the
best interests of the children involved in child-welfare matters
governed by this section. Basing decisions to remove children from
their parents or caretakers, to terminate their parents' rights, or to
limit visitation on stereotypes, assumptions, and unsubstantiated
beliefs is not in children's best interests. We therefore believe that
the proposed rule both implements the plain requirements of section 504
and advances the best interests of children and their caretakers.
Subpart I--Web, Mobile, and Kiosk Accessibility
Introduction
Web content and mobile applications provide increasingly crucial
gateways to health and human service programs and activities.
Inaccessible technology can cause severe harm, from denials of cancer
screenings to limitations in reunification services for parents and
children. Current Federal laws and regulations require the
accessibility of all programs and activities of recipients of Federal
financial assistance, including those provided through web content,
mobile applications, and kiosks.\197\ Despite these requirements, the
Department has received numerous complaints alleging that people with
disabilities continue to face barriers to access, including
inaccessible recipient websites and mobile applications, in addition to
kiosks. To help ensure access for individuals with disabilities and
provide additional clarity to recipients, the Department proposes to
require specific standards for accessible recipient web content and
mobile applications, as well as general accessibility for kiosks used
in recipients' programs and activities, in this subpart.
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\197\ See, e.g., 45 CFR 92.104; 45 CFR 84.4, redesignated as
84.68. Note that compliance with these web and mobile accessibility
requirements does not remove covered entities' obligations under
Title I of the ADA to not discriminate against qualified individuals
on the basis of disability in regard to job application procedures;
the hiring, advancement, or discharge of employees; employee
compensation; job training; or other terms, conditions, and
privileges of employment. These obligations include making
reasonable accommodation to the known physical or mental limitations
of applicants or employees, absent undue hardship.
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History of Web Interpretation Under Section 504
Section 504 provides that individuals with disabilities shall not,
solely by reason of such disability, be excluded from participation in
or be denied the benefits of programs or activities of a recipient, or
be subjected to discrimination by any such entity.\198\ Many recipients
now regularly offer many of their programs and activities through web
content and mobile apps, and the Department describes in detail some of
the ways in which recipients have done so later in this section. To
ensure equal access to such programs and activities, the Department is
undertaking this rulemaking to provide recipients with more specific
information about how to meet their nondiscrimination obligations.
---------------------------------------------------------------------------
\198\ 29 U.S.C. 794.
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As with many other civil rights statutes, section 504's
requirements are broad and its implementing regulations do not include
specific standards for every obligation under the statute. This has
been the case in the context of web and mobile app content
accessibility under section 504. Because the Department has not adopted
specific technical requirements for web content through rulemaking,
recipients have not had specific direction on how to comply with
section 504's general requirements of nondiscrimination and effective
communication. However, recipients must still comply with these section
504 obligations with respect to their websites and mobile apps,
including before this rule's effective date.
As the use of technology has become more prevalent in health
programs and activities, the Department has articulated its position
about the ways that Federal civil rights laws that prohibit
discrimination on the basis of disability require accessibility for
individuals with disabilities. In December of 2016, the Department
issued a guidance document titled ``Guidance and Resources for
Electronic Information Technology: Ensuring Equal Access to All Health
Services and Benefits Provided through Electronic Means.'' \199\ This
guidance document recognized that health care providers increasingly
rely on information and communication technology (ICT),\200\ including
kiosks and websites, to provide health programs and activities, and
that a failure to ensure that the services covered health care entities
provide through ICT are accessible to people with disabilities may
constitute discrimination under Federal civil rights laws.\201\
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\199\ U.S. Dep't of Health & Hum. Servs., Off. for Civil Rts.,
Guidance and Resources for Electronic Information Technology:
Ensuring Equal Access to All Health Services and Benefits Provided
through Electronic Means (Dec. 21, 2016), https://www.hhs.gov/sites/default/files/ocr-guidance-electronic-information-technology.pdf.
\200\ The guidance document used the term ``electronic and
information technology (EIT),'' which has since been effectively
replaced with the term ``information and communication technology
(ICT).''
\201\ U.S. Dep't of Health & Hum. Servs., Off. for Civil Rts.,
Guidance and Resources for Electronic Information Technology:
Ensuring Equal Access to All Health Services and Benefits Provided
through Electronic Means (Dec. 21, 2016), https://www.hhs.gov/sites/default/files/ocr-guidance-electronic-information-technology.pdf.
---------------------------------------------------------------------------
Section 1557 of the Affordable Care Act
In 2016, when the Department first issued its implementing
regulation for section 1557 of the ACA, it required covered entities to
ensure that their health programs or activities provided through
electronic and information technology, including web content, mobile
applications, and kiosks, were accessible to individuals with
disabilities, unless doing so would result in a fundamental alteration
in the nature of the health programs or activities or undue financial
and administrative burdens.\202\ The Department also noted that while
it would not adopt specific accessibility standards for electronic and
information technology at the time, it would be ``difficult to ensure
compliance with accessibility requirements without adherence to
standards such as the Web Content Accessibility Guidelines (WCAG) \203\
2.0 AA standards or the Section 508 standards,'' and strongly
encouraged recipients to use such standards.\204\ While the Department
released an updated implementing regulation for section 1557 in 2020,
the
[[Page 63419]]
existing regulation still requires that covered entities, many of whom
are recipients and subject to the requirements of section 504, ensure
that their health programs or activities provided through ICT are
accessible to individuals with disabilities, unless doing so would
result in a fundamental alteration in the nature of the programs or
activities or undue financial and administrative burdens.\205\
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\202\ 81 FR 31376 (May 18, 2016).
\203\ Web Content Accessibility Guidelines (WCAG) are developed
by the World Wide Web Consortium process in cooperation with
individuals and organizations around the world, with a goal of
providing a single shared standard for web content accessibility
that meets the needs of individuals, organizations, and governments
internationally. See Web Content Accessibility Guidelines (WCAG)
Overview, W3C: Web Accessibility Initiative Mar. 18, 2022), https://
www.w3.org/WAI/standards-guidelines/wcag/
\204\ 81 FR 31376, 31426 (May 18, 2016).
\205\ 45 CFR 92.104.
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DOJ's Previous Web Accessibility-Related Rulemaking Efforts Under the
ADA
Title II of the ADA provides that individuals with disabilities
shall not, by reason of such disability, be excluded from participation
in or be denied the benefits of the services, programs or activities of
a State or local government entity, or be subjected to discrimination
by any such entity.\206\ Title II is modeled on section 504 of the
Rehabilitation Act.\207\
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\206\ 42 U.S.C. 12132.
\207\ See e.g., H. Rep. 101-485 (II) at 84 (May 15, 1990).
---------------------------------------------------------------------------
Title II of the ADA and section 504 are generally understood to
impose similar requirements, given the similar language employed in the
ADA and the Rehabilitation Act.\208\ The legislative history of the ADA
makes clear that title II of the ADA was intended to extend the
requirements of section 504 to apply to all state and local
governments, regardless of whether they receive Federal funding,
demonstrating Congress's intent that title II and section 504 be
interpreted consistently.\209\
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\208\ See, e.g., 42 U.S.C. 12201(a).
\209\ See H. Rep. 101-485 (II) at 84 (May 15, 1990).
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DOJ first articulated its interpretation that the ADA applies to
websites of covered entities in 1996.\210\ Under title II, this
includes ensuring that individuals with disabilities are not, by reason
of such disability, excluded from participation in or denied the
benefits of the services, programs and activities offered by state and
local government entities, including those offered via the web, such as
education services, voting, town meetings, vaccine registration, tax
filing systems, and applications for benefits.\211\ DOJ has since
reiterated this interpretation in a variety of online contexts.\212\
Title II of the ADA also applies when public entities use mobile apps
to offer their services, programs, and activities.
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\210\ See Letter from Tom Harkin, U.S. Senator, to Deval L.
Patrick, Assistant Attorney General, Civil Rights Division,
Department of Justice, to Tom Harkin, U.S. Senator (Sept. 9, 1996).
\211\ See 42 U.S.C. 12132.
\212\ See U.S. Dep't of Just., Guidance on Web Accessibility and
the ADA, ADA.gov (March 18, 2022), https://www.ada.gov/resources/web-guidance/ [https://perma.cc/WH9E-VTCY]; Settlement Agreement
Between the United States of America and the Champaign-Urbana Mass
Transit District Under the Americans with Disabilities Act (Dec. 14,
2021), https://www.ada.gov/champaign-urbana_sa.pdf [https://perma.cc/VZU2-E6FZ]; Consent Decree, United States v. The Regents of
the Univ. of Cal. (Nov. 20, 2022), https://www.justice.gov/opa/press-release/file/1553291/download [https://perma.cc/9AMQ-GPP3];
Consent Decree, Dudley v. Miami Univ. (Oct. 17, 2016), https://www.ada.gov/miami_university_cd.html [https://perma.cc/T3FX-G7RZ];
Settlement Agreement Between the United States of America and the
City and County of Denver, Colorado Under the Americans with
Disabilities Act (Jan. 8, 2018), https://www.ada.gov/denver_pca/denver_sa.html [https://perma.cc/U7VE-MBSG]; Settlement Agreement
Between the United States of America and Nueces County, Texas Under
the Americans with Disabilities Act (effective Jan. 30, 2015),
https://www.ada.gov/nueces_co_tx_pca/nueces_co_tx_sa.html [https://perma.cc/TX66-WQY7]; Settlement Agreement Between the United States
of America, Louisiana Tech University, and the Board of Supervisors
for the University of Louisiana System Under the Americans with
Disabilities Act (July 22, 2013), https://www.ada.gov/louisiana-tech.htm [https://perma.cc/78ES-4FQR].
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In June 2003, DOJ published a document titled ``Accessibility of
State and Local Government websites to People with Disabilities,''
\213\ which provides tips for State and local government entities on
ways they can make their websites accessible so that they can better
ensure that people with disabilities have equal access to the services,
programs, and activities that are provided through those websites.
Similar to the Department's 2016 Guidance, the DOJ guidance noted that
``an agency with an inaccessible website may also meet its legal
obligations by providing an alternative accessible way for citizens to
use the programs or services, such as a staffed telephone information
line,'' while also acknowledging that this is unlikely to provide an
equal degree of access.\214\
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\213\ U.S. Dep't of Just., Accessibility of State and Local
Government websites to People with Disabilities, ADA.gov (June
2003), https://www.ada.gov/websites2.htm [https://perma.cc/Z3X5-NJ64].
\214\ Id.
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DOJ previously pursued rulemaking efforts regarding website
accessibility under title II. On July 26, 2010, DOJ's advance notice of
proposed rulemaking (ANPRM) titled ``Accessibility of Web Information
and Services of State and Local Government Entities and Public
Accommodations'' was published in the Federal Register.\215\ The ANPRM
announced that DOJ was considering revising the regulations
implementing titles II and III of the ADA to establish specific
requirements for state and local government entities and public
accommodations to make their websites accessible to individuals with
disabilities. In the ANPRM, DOJ sought information regarding what
standards, if any, it should adopt for web accessibility; whether DOJ
should adopt coverage limitations for certain entities, like small
businesses; and what resources and services are available to make
existing websites accessible to individuals with disabilities. DOJ also
requested comments on the costs of making websites accessible; whether
there were effective and reasonable alternatives to make websites
accessible that DOJ should consider permitting; and when any web
accessibility requirements adopted by DOJ should become effective. DOJ
received approximately 400 public comments addressing issues germane to
both titles II and III in response to that ANPRM. DOJ later announced
that it decided to pursue separate rulemakings addressing website
accessibility under titles II and III.\216\
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\215\ 75 FR 43460 (July 26, 2010).
\216\ See Department of Justice--Fall 2015 Statement of
Regulatory Priorities, http://www.reginfo.gov/public/jsp/eAgenda/StaticContent/201510/Statement_1100.html [https://perma.cc/YF2L-FTSK].
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On May 9, 2016, DOJ followed up on its 2010 ANPRM with a detailed
Supplemental ANPRM that was published in the Federal Register. The
Supplemental ANPRM solicited public comment about a variety of issues
regarding establishing technical standards for web access under title
II.\217\ DOJ received more than 200 public comments in response to the
title II Supplemental ANPRM.
---------------------------------------------------------------------------
\217\ Nondiscrimination on the Basis of Disability;
Accessibility of Web Information and Services of State and Local
Government Entities, 81 FR 28658 (May 9, 2016).
---------------------------------------------------------------------------
On December 26, 2017, DOJ published a Notice in the Federal
Register withdrawing four rulemaking actions, including the titles II
and III web rulemakings, stating that it was evaluating whether
promulgating specific web accessibility standards through regulations
was necessary and appropriate to ensure compliance with the ADA.\218\
DOJ has also previously stated that it would continue to review its
entire regulatory landscape and associated agenda, pursuant to the
regulatory reform provisions of Executive Order 13771 and Executive
Order 13777.\219\ Those Executive Orders
[[Page 63420]]
were revoked by Executive Order 13992 in early 2021. In March 2022, DOJ
released guidance addressing web accessibility for people with
disabilities.\220\ This technical assistance expanded on DOJ's previous
ADA guidance by providing practical tips and resources for making
websites accessible for both title II and title III entities. It also
reiterated DOJ's longstanding interpretation that the ADA applies to
all services, programs, and activities of covered entities, including
when they are offered via the web.
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\218\ Nondiscrimination on the Basis of Disability; Notice of
Withdrawal of Four Previously Announced Rulemaking Actions, 82 FR
60932 (Dec. 26, 2017).
\219\ See Letter for Charles E. Grassley, U.S. Senator, from
Stephen E. Boyd, Assistant Attorney General, Civil Rights Division,
Department of Justice (Oct. 11, 2018), https://www.grassley.senate.gov/imo/media/doc/2018-10-11%20DOJ%20to%20Grassley%20-%20ADA%20website%20Accessibility.pdf
[https://perma.cc/8JHS-FK2Q].
\220\ U.S. Dep't of Just., Guidance on Web Accessibility and the
ADA, ADA.gov (March 18, 2022), https://www.ada.gov/resources/web-guidance/ [https://perma.cc/874V-JK5Z] (last visited Aug. 8, 2022).
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The guidance did not include 24/7 staffed telephone lines as an
alternative to accessible websites as was included in both the
Department's 2016 Guidance on Electronic and Information Technology and
in DOJ's 2003 guidance. Given the way the modern web has developed, the
Department no longer believes that 24/7 staffed telephone lines can
realistically provide equal access to people with disabilities.
Websites--and often mobile apps--allow the public to get information or
request a service within just a few minutes. Getting the same
information or requesting the same service using a staffed telephone
line takes more steps and may result in wait times or difficulty
getting the information.
For example, a health care provider's website may allow members of
the public to quickly review large quantities of information, like
information about how to schedule an appointment, a certain specialty
service, or health tips during a public health emergency. Members of
the public can then use recipient websites to promptly act on that
information by, for example, scheduling an appointment, attending a
virtual telehealth appointment, or requesting a prescription refill
through a virtual portal. A member of the public could not
realistically accomplish these tasks efficiently over the phone.
Additionally, a person with a disability who cannot use an inaccessible
online new patient form might have to call to request assistance with
filling out either online or mailed forms, which could involve
significant delay and may require providing private information such as
banking details or Social Security numbers over the phone without the
benefit of certain security features available for online transactions.
Finally, calling a staffed telephone line lacks the privacy of looking
up information on a website. A caller needing public safety resources,
for example, might be unable to access a private location to ask for
help on the phone, whereas an accessible website would allow users to
privately locate resources. For these reasons, the Department does not
believe that a staffed telephone line--even if it is offered 24/7--
provides equal access in the way that an accessible website can.
DOJ is now reengaging in efforts to promulgate regulations
establishing technical standards for web accessibility for public
entities and has begun distinct rulemaking to address web access under
title II of the ADA.\221\
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\221\ 88 FR 51948 (Aug. 4, 2023), to be codified at 28 CFR part
35.
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Need for Department Action
Use of Web Content by Recipients
Recipients regularly use the web to disseminate information and
offer programs and activities to the public. Health care providers
frequently advertise their services, post health related information,
and offer methods to schedule appointments through websites.
Additionally, applications for many benefits are available through
social service websites.
People also rely on recipients' websites to engage in health and
human service programs and activities, particularly when more
individuals prefer or need to stay at home following the COVID-19
pandemic. The Department believes that although many public health
measures addressing the COVID-19 pandemic are no longer in place, there
have been durable changes to recipient operations and public
preferences that necessitate greater access to online programs and
activities.
Health care provider websites and applications are important
platforms for centralizing relevant health information for patients,
scheduling appointments and procedures, accessing patient information,
and providing contact information. During the COVID-19 Public Health
Emergency, websites and applications were often used as the only means
to schedule COVID testing and vaccination appointments, making it
crucial for those appointment web pages and their navigation paths to
be accessible to individuals with disabilities.\222\ The Department
received numerous complaints alleging that vaccination websites were
not compatible with screen-reader software, did not allow individuals
unable to use a computer mouse to select necessary boxes, and generally
did not allow for individuals with disabilities to schedule vaccine
appointments despite being eligible for vaccines.\223\ Additionally,
the Department is aware of allegations that electronic health records,
including those available through patient portals on provider websites
and applications, such as text-based reports describing x-rays and MRI
results, are not readable with a screen reader, making them
inaccessible to some individuals with vision disabilities.
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\222\ The HHS Office for Civil Rights released guidance on April
13, 2021, reminding recipients that vaccine scheduling and
registration provided online must be accessible to individuals with
disabilities. This was based in part on complaints OCR received
alleging that recipients were requiring individuals to register for
vaccine appointments using inaccessible websites. See U.S. Dep't of
Health & Hum. Servs., Off. for Civil Rts., Guidance on Federal Legal
Standards Prohibiting Disability Discrimination in COVID-19
Vaccination Programs (Apr. 13, 2021), https://www.hhs.gov/sites/default/files/federal-legal-standards-prohibiting-disability-discrimination-covid-19-vaccination.pdf.
\223\ See also John Hopkins Univ. Disability Health Res. Ctr.,
Vaccine website Accessibility Tables (May 19, 2021), https://disabilityhealth.jhu.edu/vaccinedashboard/webaccess/ (Dashboard that
tracked accessibility of state websites with vaccine information).
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Telehealth has been increasing in popularity, availability, and
reliability among providers and patients, with the COVID-19 pandemic
coinciding with a marked increase in telehealth capacity and use.\224\
The ability to access telehealth through a variety of devices,
including laptops, smart phones, and tablets, wherever a high-speed
internet connection is available, has expanded health care
opportunities for rural communities, individuals at increased risk of
negative outcomes from infectious diseases, individuals without
reliable forms of transportation, and individuals needing to access
specialists in rare diseases, among others.\225\
[[Page 63421]]
Unfortunately, these increased opportunities have also exposed
accessibility shortcomings in the web content and applications used by
some recipients to provide telehealth. Individuals with hearing
disabilities may require real-time captioning.\226\ Individuals with
vision disabilities may require online portals to be accessible using
assistive technology such as screen readers.
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\224\ According to CDC Health Center Program Data, approximately
43% of providers were capable of providing telehealth in 2019 while
approximately 95% of providers reported using telehealth during the
COVID-19 pandemic. U.S. Dep't of Health & Hum. Servs., Ctrs. for
Disease Control, Trends in Use of Telehealth Among Health Centers
During the COVID-19 Pandemic--United States, June 26-November 26,
2020 (Feb. 19, 2021), https://www.cdc.gov/mmwr/volumes/70/wr/mm7007a3.htm.
\225\ See, e.g., Letter from Am. Ass'n of People with
Disabilities et al., to the Department (Feb. 24, 2022), https://autisticadvocacy.org/wp-content/uploads/2022/02/HHS_Disability-Advocates-Memo-02.24.22.pdf (noting that increased use of telehealth
has led to some accessibility challenges for individuals with
disabilities and requesting that the Department provide clear
guidance on telehealth accessibility requirements); Kathleen Bogart
et al., Healthcare Access, Satisfaction, and Health-related Quality
of Life Among Children and Adults with Rare Diseases, 17 Orphanet J.
of Rare Diseases 196 (May 12, 2022); JF Scherr et al., Utilizing
Telehealth to Create a Clinical Model of Care for Patients with
Batten Disease and other Rare Diseases, Therapeutic Advances in Rare
Disease (Aug. 18, 2021).
\226\ See Nat'l Council on Disability, 2021 Progress Report: The
Impact of COVID-19 on People with Disabilities (Oct. 29, 2021),
https://ncd.gov/sites/default/files/NCD_COVID-19_Progress_Report_508.pdf (urging the Department to require that
telehealth providers ensure their platforms are compatible with
screen-readers and allow for third-party interpreters.).
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The Department is aware of numerous allegations that existing
telehealth platforms are not accessible to individuals with
disabilities, resulting in ineffective services. Even if the United
States returns to pre-pandemic levels of in-person health care visits,
telehealth will remain an integral part of health care and give a
lifeline to individuals in rural communities and others who cannot
access timely in-person health care or choose not to visit in person.
Recently, the Department released joint guidance with DOJ on ensuring
the accessibility of telehealth.\227\ The guidance document lists
specific Federal nondiscrimination laws that apply to telehealth and
includes examples of the protections for individuals with disabilities.
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\227\ See U.S. Dep't of Health & Hum. Servs., Off. for Civil
Rts., U.S. Dep't of Justice, Civil Rights Division, Guidance on
Nondiscrimination in Telehealth: Federal Protections to Ensure
Accessibility to People with Disabilities and Limited English
Proficient Persons (July 29, 2022), https://www.hhs.gov/sites/default/files/guidance-on-nondiscrimination-in-telehealth.pdf.
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Similar to its use in health programs and activities, web content
has become a common method to disseminate information on and deliver
human service programs and activities. If an individual with a
disability is unable to access web content that a recipient uses for
its programs or activities, they may be denied access to critical
benefits they are entitled to receive. For example, a human service
program that requires applicants to fill out an online application for
benefits that is incompatible with screen readers, voice dictation, or
hands-free devices will likely deny certain individuals with
disabilities an equal opportunity to apply for those benefits. Even
situations where application forms are also available in other formats,
such as paper copies at a single physical location, may still result in
unequal access and a delay in benefits if online forms are
inaccessible.
As noted previously, access to the web has become increasingly
important as a result of the COVID-19 pandemic, which shut down
workplaces, schools, and in-person services, and has forced millions of
Americans to stay home for extended periods.\228\ In response, the
American public has turned to the web for work, activities, and
learning.\229\ In fact, a study conducted in April 2021 found that 90
percent of adults say the web ``has been at least important to them
personally during the pandemic.'' Fifty-eight percent say it has been
essential.\230\
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\228\ See Colleen McClain, Emily A. Vogels, Andrew Perrin,
Stella Sechopoulos, and Lee Rainie, The internet and the Pandemic,
Pew Research Center (Sep. 1, 2021), https://www.pewresearch.org/internet/2021/09/01/the-internet-and-the-pandemic/ [https://perma.cc/4WVA-FQ9P].
\229\ See Kerry Dobransky and Eszter Hargittai, Piercing the
Pandemic Social Bubble: Disability and Social Media Use About COVID-
19, American Behavioral Scientist (Mar. 29, 2021), https://doi.org/10.1177/00027642211003146.
\230\ See McClain, Vogels, Perrin, Sechopoulos, The Internet and
the Pandemic, at 3.
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Currently, a large number of Americans interact with recipients
remotely and many recipients provide vital information and services for
the general public online. Access to web-based information and
services, while important for everyone during the pandemic, took on
heightened importance for people with disabilities, many of whom face a
greater risk of COVID-19 exposure, serious illness, and death.\231\
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\231\ See Hannah Eichner, The Time is Now to Vaccinate High-Risk
People with Disabilities, National Health Law Program (Mar. 15,
2021), https://healthlaw.org/the-time-is-now-to-vaccinate-high-risk-people-with-disabilities/ [https://perma.cc/8CM8-9UC4].
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According to the CDC, some people with disabilities ``might be more
likely to get infected or have severe illness because of underlying
medical conditions, congregate living settings, or systemic health and
social inequities.\232\ All people with serious underlying chronic
medical conditions like chronic lung disease, a serious heart
condition, or a weakened immune system seem to be more likely to get
severely ill from COVID-19.'' \233\ A report by the National Council on
Disability indicated that COVID-19 has a disproportionately negative
impact on people with disabilities' access to healthcare, education,
and employment, among other areas, making remote access to these
opportunities via the web even more important.\234\
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\232\ See U.S. Dep't of Health and Hum. Servs., Centers for
Disease Control and Prevention, Underlying Medical Conditions
Associated with Higher Risk for Severe COVID-19: Information for
Healthcare Professionals (Feb. 9. 2023), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-care/underlyingconditions.html.
\233\ See People with Disabilities, Centers for Disease Control
and Prevention, https://www.cdc.gov/ncbddd/humandevelopment/covid-19/people-with-disabilities.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fneed-extra-precautions%2Fpeople-with-disabilities.html [https://perma.cc/WZ7U-2EQE] (last visited, Aug.
2, 2022).
\234\ See 2021 Progress Report: The Impact of COVID-19 on People
with Disabilities, National Council on Disability (Oct. 29, 2021),
https://ncd.gov/progressreport/2021/2021-progress-report [https://perma.cc/96L7-XMKZ].
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Individuals with disabilities can often be denied equal access to
programs and activities because many recipients' web content is not
fully accessible. Thus, there is a digital divide between the ability
of people with certain types of disabilities and people without those
disabilities to access the programs and activities of recipients.
The Department is also proposing that recipients make their mobile
apps accessible under proposed Sec. 84.84, because recipients also use
mobile apps to offer their programs and activities to the public. As
discussed in the proposed definition, a mobile app is a software
application that is downloaded and designed to run on mobile devices
such as smartphones and tablets. Mobile apps are distinct from a
website that can be accessed by a mobile device because, in part,
mobile apps are not directly accessible on the web--they are often
downloaded on a mobile device.\235\ A mobile website, on the other
hand, is a website that can be accessed by a mobile device similarly to
how it can be accessed on a desktop computer.\236\
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\235\ Mona Bushnell, What Is the Difference Between an App and a
Mobile website?, Business News Daily (Nov. 19, 2021), https://www.businessnewsdaily.com/6783-mobile-website-vs-mobile-app.html
[https://perma.cc/9LKC-GUEM] https://www.businessnewsdaily.com/6783-mobile-website-vs-mobile-app.html (last visited Aug. 8, 2022).
\236\ Id.
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Recipients use mobile apps to provide services and reach the public
in various ways. For example, some recipients use mobile apps as a
method to access a patient portal and engage in a number of activities
related to that patient, such as scheduling appointments, messaging
physicians, and requesting medical records.
Although many individuals access web content, including telehealth
platforms, on desktop computers and laptops, many others rely on mobile
applications used on mobile devices such as smart phones and tablets.
As of 2021, 15% of American adults relied on smartphones for internet
access, i.e., owned a smartphone but did not have
[[Page 63422]]
a traditional home broadband service.\237\ Specific issues that arise
when individuals with disabilities attempt to access web content on
mobile devices include but are not limited to: actions (such as
resizing) that require specific manual operations, cancellation
functions that cannot be terminated, and orientation requirements. Any
standards to ensure accessibility of web content and mobile
applications must consider how that web content will be viewed and used
on mobile devices.
---------------------------------------------------------------------------
\237\ Mobile Fact Sheet, Pew Research Center (Apr. 7, 2021),
https://www.pewresearch.org/internet/fact-sheet/mobile/.
---------------------------------------------------------------------------
The Department is aware that some recipients, including doctors'
offices, hospitals, and social service offices, use kiosks or similar
self-service transaction machines for members of the public to perform
a number of tasks including checking in for appointments, providing
information for the receipt of services, procuring services, measuring
vitals, and performing other services without interacting directly with
recipient staff.
While these kiosks may be convenient in certain instances, they may
also be inaccessible to individuals with certain disabilities,
especially when they were not designed with the needs of individuals
with disabilities in mind. The use of inaccessible kiosks that result
in delays checking in, privacy concerns, and even the complete
inability of people with disabilities to check in for their
appointments results in avoidable lack of access to health and human
services.
The Department is also aware that some recipients, including health
care providers, regularly use mobile devices and applications to
coordinate check-in procedures, gather information, and communicate
between patients, providers, and third parties, such as pharmacies and
other clinicians. In some instances, recipients have begun to provide
mobile devices, such as iOS or Android tablets, in waiting rooms so
that individuals may fill out forms or questionnaires prior to an
appointment, or during the process of interacting with the recipient,
while others provide the tablets for check-in and other informational
purposes. Much like with kiosks, the use of mobile devices for check-in
and other purposes may present barriers to services if they are not
accessible to individuals with disabilities.
Barriers to Web, Mobile App, and Kiosk Accessibility
Millions of individuals in the United States have disabilities that
can affect their use of the web and mobile apps. Many of these
individuals use assistive technology to enable them to navigate
websites or access information contained on those sites. For example,
individuals who are unable to use their hands may use speech
recognition software to navigate a website, while individuals who are
blind may rely on a screen reader to convert the visual information on
a website into speech. Many websites and mobile apps fail to
incorporate or activate features that enable users with certain types
of disabilities to access all of the information or elements on the
website or app. For instance, individuals who are deaf may be unable to
access information in web videos and other multimedia presentations
that do not have captions. Individuals with low vision may be unable to
read websites or mobile apps that do not allow text to be resized or do
not provide enough contrast. Individuals with limited manual dexterity
or vision disabilities who use assistive technology that enables them
to interact with websites may be unable to access sites that do not
support keyboard alternatives for mouse commands. These same
individuals, along with individuals with cognitive and vision
disabilities, often experience difficulty using portions of websites
that require timed responses from users but do not give users the
opportunity to indicate that they need more time to respond.
Individuals who are blind or have low vision often face significant
barriers attempting to access websites and mobile apps. For example, a
study from the University of Washington analyzed approximately 10,000
mobile apps and found that many are highly inaccessible to people with
disabilities.\238\ The study found that 23 percent of the mobile apps
reviewed did not provide content description of images for most of
their image-based buttons. As a result, the functionality of those
buttons is not accessible for people who use screen readers.\239\
Additionally, other mobile apps may be inaccessible if they do not
allow text resizing, which can provide larger text for persons with
vision disabilities.\240\
---------------------------------------------------------------------------
\238\ See Large-Scale Analysis Finds Many Mobile Apps Are
Inaccessible, University of Wisconsin CREATE, https://create.uw.edu/initiatives/large-scale-analysis-finds-many-mobile-apps-are-inaccessible/ [https://perma.cc/442K-SBCG] (last visited Aug. 8,
2022).
\239\ Id.
\240\ See Chase DiBenedetto, 4 ways mobile apps could be a lot
more accessible, Mashable (Dec. 19, 2021), https://mashable.com/article/mobile-apps-accessibility-fixes [https://perma.cc/WC6M-2EUL].
---------------------------------------------------------------------------
Furthermore, many websites provide information visually, without
features that allow screen readers or other assistive technology to
retrieve information on the website so it can be presented in an
accessible manner. A common barrier to website accessibility is an
image or photograph without corresponding text describing the image. A
screen reader or similar assistive technology cannot ``read'' an image
without corresponding text, leaving individuals who are blind with no
way of independently knowing what information the image conveys (e.g.,
a simple icon or a detailed graph). Similarly, if websites lack
navigational headings or links that facilitate navigation using a
screen reader it will be difficult or impossible for a someone using a
screen reader to understand.\241\ Additionally, these websites may fail
to present tables in a way that allows the information in the table to
be interpreted or accessed by someone who is using a screen
reader.\242\
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\241\ See, e.g., W3C[supreg], Easy Checks--A First Review of Web
Accessibility, (updated Jan. 31, 2023), https://www.w3.org/WAI/test-evaluate/preliminary/ [https://perma.cc/N4DZ-3ZB8].
\242\ W3C[supreg], Tables Tutorial (updated Feb. 16, 2023),
https://www.w3.org/WAI/tutorials/tables/ [https://perma.cc/FMG2-33C4].
---------------------------------------------------------------------------
Web-based forms, which are an essential part of accessing certain
health and human services, are often inaccessible to individuals with
disabilities who use screen readers. For example, field elements on
forms, which are the empty boxes on forms that hold specific pieces of
information, such as a last name or telephone number, may lack clear
labels that can be read by assistive technology. Inaccessible form
fields make it difficult for persons using screen readers to fill out
online forms, pay fees, submit inquiries, or otherwise participate in
recipient programs or activities using a website. Some recipients use
inaccessible third-party websites to accept online payments, while
others request patients check in through their own inaccessible
websites. These barriers greatly impede the ability of individuals with
disabilities to access the programs and activities offered by
recipients on the web. In many instances, removing certain website
barriers is neither difficult nor especially costly. For example, the
addition of invisible attributes known as alternative (alt) text or alt
tags to an image helps orient an individual using a screen reader and
allows them to gain access to the information on the website. This can
be done without any specialized equipment.\243\ Similarly, adding
headings, which facilitate page
[[Page 63423]]
navigation for those using screen readers, can often be done easily as
well.
---------------------------------------------------------------------------
\243\ W3C[supreg], Images Tutorial (Feb. 08, 2022), https://www.w3.org/WAI/tutorials/images/ [https://perma.cc/G6TL-W7ZC].
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Beyond web and mobile content, kiosks may contain a host of
barriers that limit accessibility. The Department has received
information from individuals with physical disabilities who have
experienced difficulty reaching the controls on kiosks, or operating
controls that require tight grasping, pinching, or twisting.
Individuals with hearing loss may not be able to operate a kiosk
effectively if audio commands or information are not provided in an
alternative format. The Department is aware of the barriers created by
inaccessible kiosks, particularly in health care, so the proposed rule
includes a provision specifically addressing recipients' existing
obligations with respect to kiosks. Of course, the existing general
nondiscrimination provision in Sec. 84.4 (which this NPRM proposes to
redesignate as Sec. 84.68) continues to apply to all HHS-funded
programs and activities, including those provided via technology.
Voluntary Compliance With Technical Standards for Web Accessibility Has
Been Insufficient in Providing Access
The web has changed significantly and its use has become far more
prevalent since Congress enacted the Rehabilitation Act in 1973 and the
ADA in 1990. Neither of the laws specifically addressed recipients' or
public entities' use of websites, mobile apps, or kiosks to provide
their programs and activities.
A variety of voluntary standards and structures have been developed
for the web through nonprofit organizations using multinational
collaborative efforts. For example, domain names are issued and
administered through the Internet Corporation for Assigned Names and
Numbers (ICANN), the Internet Society (ISOC) publishes computer
security policies and procedures for websites, and the World Wide Web
Consortium (W3C[supreg]) develops a variety of technical standards and
guidelines ranging from issues related to mobile devices and privacy to
internationalization of technology. In the area of accessibility, the
Web Accessibility Initiative (WAI) of the W3C[supreg] created the Web
Content Accessibility Guidelines (WCAG).
Many organizations, however, have indicated that voluntary
compliance with these accessibility guidelines has not resulted in
equal access for people with disabilities; accordingly, they have urged
the Department and its Federal partners to take regulatory action to
ensure web and mobile app accessibility.\244\ The National Council on
Disability, an independent Federal agency that advises the President,
Congress, and other agencies about programs, policies, practices, and
procedures affecting people with disabilities, has similarly emphasized
the need for regulatory action on this issue.\245\
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\244\ See, e.g., Letter from Am. Ass'n of People with
Disabilities et al. to the Department (Feb. 24, 2022), https://www.aapd.com/wp-content/uploads/2022/03/HHS_Disability-Advocates-Memo-02.24.22.pdf (noting that increased use of telehealth has led
to some accessibility challenges for individuals with disabilities
and requesting that the Department provide clear guidance on
telehealth accessibility requirements); Letter from American Council
of the Blind et al. to U.S. Dep't of Just. (Feb. 28, 2022), https://acb.org/accessibility-standards-joint-letter-2-28-22 [https://perma.cc/R77M-VPH9] (citing research showing persistent barriers in
digital accessibility); Letter from Consortium for Citizens with
Disabilities to U.S. Dep't of Just. (Mar. 23, 2022), https://www.c-c-d.org/fichiers/CCD-Web-Accessibility-Letter-to-DOJ-03232022.pdf
[https://perma.cc/Q7YB-UNKV].
\245\ National Council on Disability, The Need for Federal
Legislation and Regulation Prohibiting Telecommunications and
Information Services Discrimination (Dec. 19, 2006), https://www.ncd.gov/publications/2006/Dec282006 [https://perma.cc/7HW5-NF7P]
(discussing how competitive market forces have not proven sufficient
to provide individuals with disabilities access to
telecommunications and information services); see also, e.g.,
National Council on Disability, National Disability Policy: A
Progress Report (Oct. 7, 2016), https://ncd.gov/progressreport/2016/progress-report-october-2016 [https://perma.cc/J82G-6UU8] (urging
the Department to adopt a web accessibility regulation).
---------------------------------------------------------------------------
Recent research documents the digital inaccessibility of the
websites of more than 100 top hospitals across the United States,
finding that only 4.9 percent are compliant with Web Content
Accessibility Guidelines (WCAG) 2.1.\246\ In general, as technology
continues to advance, the methods for ensuring programs and activities
are as effective for people with disabilities as those provided to
others may need to change, as well.\247\
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\246\ Amanda Krupa et al., American Health Information
Management Association (AHIMA) Foundation, The Critical Role of Web
Accessibility in Health Information Access, Understanding, and Use
(2022), https://mathematica.org/publications/the-critical-role-of-web-accessibility-in-health-information-access-understanding-and-use.
\247\ See, e.g., Enyart v. Nat'l Conference, 630 F. 3d 1153,
1163 (9th Cir. 2011)(an ADA title II case, in which the defendant
refused to permit the plaintiff to take the Bar exam using a
computer equipped with the assistive technology software JAWS and
ZoomText. The court held that the software must be permitted,
stating that ``assistive technology is not frozen in time: as
technology advances, testing accommodations should as well.''); See
also California Council of the Blind v. Cnty of Alameda, 985 F.
Supp. 2d 1229, 1241 (N.D. Cal. 2013) (the plaintiffs alleged a
violation of section 504 and the ADA because of defendant's failure
to provide electronic voting machines with electronic ballots
including an audio ballot feature that can read aloud instructions
and voting options. In denying the defendant's motion to dismiss,
the court noted that ``while the Social Security Administration's
practice of reading notices to blind individual was once sufficient,
reading letters over the phone no longer constituted meaningful
access because `great strides have been made in computer-aided
assistance for the blind . . .' ''); Argenyi v. Creighton Univ., 703
F. 3d 441 (8th Cir. 2013) (the court held that the University's
failure to provide a system which transcribes spoken words into text
on a computer screen violated section 504 and the ADA.).
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Despite the availability of voluntary web and mobile app
accessibility standards; the Department's position that programs and
activities of recipients, including those available on websites, must
be accessible; and case law supporting that position, individuals with
disabilities continue to struggle to obtain access to the websites of
recipients.\248\ In addition to the Department's guidance and
enforcement, DOJ has brought enforcement actions to address web access,
resulting in a significant number of settlement agreements with state
and local government entities as well as public entities.\249\
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\248\ See, e.g., Meyer v. Walthall, 528 F. Supp. 3d 928, 959
(S.D. Ind. 2021) (``[T]he Court finds that Defendants' websites
constitute services or activities within the purview of Title II and
section 504, requiring Defendants to provide effective access to
qualified individuals with a disability.''); Price v. City of Ocala,
Fla., 375 F. Supp. 3d 1264, 1271 (M.D. Fla. 2019) (``Title II
undoubtedly applies to websites . . . .''); Payan v. Los Angeles
Cmty. Coll. Dist., No. 2:17-CV-01697-SVW-SK, 2019 WL 9047062, at *12
(C.D. Cal. Apr. 23, 2019) (``[T]he ability to sign up for classes on
the website and to view important enrollment information is itself a
`service' warranting protection under Title II and section 504.'');
Eason v. New York State Bd. of Elections, No. 16-CV-4292 (KBF), 2017
WL 6514837 (S.D.N.Y. Dec. 20, 2017) (stating, in a case involving a
State's website, that ``section 504 of the Rehabilitation Act and
Title II of the Americans with Disabilities Act . . . , long ago
provided that the disabled are entitled to meaningful access to a
recipient's programs and services. Just as buildings have
architecture that can prevent meaningful access, so too can
software.''); Hindel v. Husted, No. 2:15-CV-3061, 2017 WL 432839, at
*5 (S.D. Ohio Feb. 1, 2017) (``The Court finds that Plaintiffs have
sufficiently established that Secretary Husted's website violates
Title II of the ADA because it is not formatted in a way that is
accessible to all individuals, especially blind individuals like the
Individual Plaintiffs whose screen access software cannot be used on
the website.'').
\249\ See, e.g., Settlement Agreement Under the Americans With
Disabilities Act Between the United States of America and Rite Aid
Corporation (Nov. 1, 2021), https://www.justice.gov/opa/pr/justice-department-secures-agreement-rite-aid-corporation-make-its-online-covid-19-vaccine; Settlement Agreement Under the Americans With
Disabilities Act Between the United States of America and Hy-Vee,
Inc. (Dec. 1, 2021), https://www.justice.gov/crt/case-document/file/1493151/download; Settlement Agreement Between the United States of
America and the Champaign-Urbana Mass Transit District Under the
Americans with Disabilities Act (Dec. 14, 2021), https://www.ada.gov/champaign-urbana_sa.pdf [https://perma.cc/VZU2-E6FZ];
Consent Decree, United States v. The Regents of the Univ. of Cal.
(Nov. 20, 2022), https://www.justice.gov/opa/press-release/file/1553291/download [https://perma.cc/9AMQ-GPP3]; Consent Decree,
Dudley v. Miami Univ. (Oct. 17, 2016), https://www.ada.gov/miami_university_cd.html [https://perma.cc/T3FX-G7RZ]; Settlement
Agreement Between the United States of America and the City and
County of Denver, Colorado Under the Americans with Disabilities Act
(Jan. 8, 2018), https://www.ada.gov/denver_pca/denver_sa.html
[https://perma.cc/U7VE-MBSG]; Settlement Agreement Between the
United States of American and Nueces County, Texas Under the
Americans with Disabilities Act (effective Jan. 30, 2015), https://www.ada.gov/nueces_co_tx_pca/nueces_co_tx_sa.html [https://perma.cc/TX66-WQY7]; Settlement Agreement Between the United States of
American, Louisiana Tech University, and the Board of Supervisors
for the University of Louisiana System Under the Americans with
Disabilities Act (July 22, 2013), https://www.ada.gov/louisiana-tech.htm [https://perma.cc/78ES-4FQR].
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[[Page 63424]]
Moreover, other Federal agencies have also taken enforcement action
against public entities regarding the lack of accessible websites for
people with disabilities. In December 2017, for example, the U.S.
Department of Education entered into a resolution agreement with the
Alaska Department of Education and Early Development for violating
Federal statutes, including section 504 and title II of the ADA, by
denying people with disabilities an equal opportunity to participate in
Alaska Department of Education and Early Development's services,
programs, and activities, due to website inaccessibility.\250\
Similarly, the U.S. Department of Housing and Urban Development took
action against the City of Los Angeles, and its subrecipient housing
providers, to ensure that it maintained an accessible housing website
concerning housing opportunities.\251\
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\250\ In re Alaska Dep't. of Educ. and Early Dev., OCR Reference
No. 10161093 (U.S. Dep't of Educ. Dec. 11, 2017) (resolution
agreement), https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/10161093-b.pdf [https://perma.cc/DUS4-HVZJ].
\251\ See Voluntary Compliance Agreement Between the U.S.
Department of Housing and Urban Development and the City of Los
Angeles, California, (Aug. 2, 2019), https://www.hud.gov/sites/dfiles/Main/documents/HUD-City-of-Los-Angeles-VCA.pdf [https://perma.cc/X5RN-AJ5K].
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The Department believes that adopting technical standards for web
and mobile app accessibility will provide clarity to recipients
regarding how to make the programs and activities they offer the public
via the web and mobile apps accessible. Adopting specific technical
standards for web and mobile app accessibility will also provide
individuals with disabilities with consistent and predictable access to
the websites and mobile apps of recipients.
Section-by-Section Analysis
This section details the Department's proposed changes to the
section 504 regulation, including the reasoning behind the proposals,
and poses questions for public comment.
Definitions
The Department proposes to add to Sec. 84.10, the Definitions
section, the following terms applicable to this subpart: ``Archived web
content,'' ``Conventional electronic documents,'' ``Kiosks,'' ``Mobile
applications (apps),'' ``WCAG 2.1,'' and ``Web content.'' Each term is
explained in the preamble discussion for Sec. 84.10.
The Department poses questions for feedback about its proposed
approach. Comments on all aspects of this proposed rule, including
these proposed definitions, are invited. Please provide as much detail
as possible and any applicable data, suggested alternative approaches
or requirements, arguments, explanations, and examples in your
responses to the following questions.
Web Accessibility Question 1: The Department's definition
of ``conventional electronic documents'' consists of an exhaustive list
of specific file types. Should the Department instead craft a more
flexible definition that generally describes the types of documents
that are covered or otherwise change the proposed definition, such as
by including other file types (e.g., images or movies), or removing
some of the listed file types?
Web Accessibility Question 2: The Department requests
comment on whether a definition of ``kiosks'' is necessary, and if so,
requests comment on the Department's proposed definition in Sec. 84.10
and any suggested revisions to it.
Web Accessibility Question 3: Are there refinements to the
definition of ``web content'' the Department should consider? Consider,
for example, WCAG 2.1's definition of ``web content'' as ``information
and sensory experience to be communicated to the user by means of a
user agent, including code or markup that defines the content's
structure, presentation, and interactions.'' \252\
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\252\ W3C[supreg], Web Content Accessibility Guidelines 2.1
(June 5, 2018), https://www.w3.org/TR/WCAG21/ [https://perma.cc/UB8A-GG2F].
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The Department is proposing to create a new subpart to its section
504 regulation. Subpart I will address the accessibility of recipients'
web content, mobile apps, and kiosks.
Sec. 84.82 Application
This proposed section states that this subpart applies to all
programs or activities that receive Federal financial assistance from
the Department.
Sec. 84.83 Accessibility of Kiosks
This section provides general nondiscrimination requirements for
programs or activities that recipients provide through or with the use
of kiosks. It provides that no qualified individual with a disability
shall, on the basis of disability, be excluded from participation in,
be denied the benefits of, or otherwise be subjected to discrimination
under any program or activity of a recipient provided through or with
the use of kiosks.
The Department proposes this section in light of the increasingly
common use of kiosks in health care settings for purposes of checking
in patients, gathering information from them, and taking vital signs.
The Department is not proposing specific technical requirements for
kiosks, but proposes to include general language recognizing that
section 504 prohibits recipients from discriminating on the basis of
disability in their programs or activities provided through kiosks
because of the inaccessibility of those devices. This language also
aligns with DOJ's view that the ADA's protections apply when a covered
entity uses kiosks to deliver its programs, services, or
activities.\253\ The Department believes the inclusion of this language
is important to ensure that recipients are aware of their existing
obligations to ensure that their programs and activities provided
through kiosks are nondiscriminatory.
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\253\ See Statement of Interest of the United States of America
in Vargas v. Quest Diagnostics Clinical Laboratories, Inc. et al.,
No. 2:19-cv-08108 (C.D. Cal. filed Sept. 20, 2021).
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Recipients that use kiosks may make their programs accessible by
instituting procedures that would allow persons with disabilities who
cannot use kiosks because of their inaccessible features to access the
program without using kiosks.\254\ For example, a clinic or a social
services office may allow persons with disabilities to go directly to
the personnel at the main desk to register for necessary services. Such
work-around procedures must afford persons with disabilities the same
access, the same convenience, and the same confidentiality that the
kiosk system provides.
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\254\ 45 CFR 84.22(b).
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In instances where kiosks are closed functionality devices that do
not rely on web content or mobile apps, the proposed technical
standards in Sec. 84.84 will not apply. Under these circumstances,
recipients are still obligated to ensure that individuals with
disabilities are not excluded from participation in, denied the
benefits of, or otherwise subjected to discrimination in any program or
activity of the recipient, including the information exchange that
would occur at the kiosk.
[[Page 63425]]
This may require the recipient to provide reasonable modifications to
policies, practices, or procedures, as required by Sec. 84.68(b)(7),
and take appropriate steps to ensure effective communication, including
through the provision of appropriate auxiliary aids and services, which
include accessible electronic and information technology, as required
by subpart H.
The Department is aware that the U.S. Access Board is working on a
rulemaking to amend the ADA Accessibility Guidelines to address the
accessibility of fixed self-service transaction machines, self-service
kiosks, information transaction machines, and point-of-sale devices.
The Access Board issued an advance notice of proposed rulemaking on
these issues in September 2022 and heard from more than 70
commenters.\255\ The Board is now in the process of developing a notice
of proposed rulemaking, which may be issued by December 2023.\256\ Once
these guidelines are final, to be enforceable, DOJ and the U.S.
Department of Transportation would have to adopt them, via separate
rulemakings, before they would become enforceable standards for devices
and equipment covered by the ADA. Similarly, HHS will consider adopting
these guidelines under section 504 once they are finalized.
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\255\ U.S. Access Board, Self Service Transaction Machines,
https://www.access-board.gov/sstms/.
\256\ U.S. Off. of Mgmt. & Budget, Off. of Information & Reg.
Affs, Accessibility Guidelines for Self-Service Transaction
Machines, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202304&RIN=3014-AA44 (last visited Aug. 8,
2023).
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Sec. 84.84 Requirements for Web and Mobile Accessibility
General
Proposed Sec. 84.84 sets forth specific requirements for the
accessibility of web content and mobile apps of recipients. Proposed
Sec. 84.84(a) requires a recipient to ``ensure the following are
readily accessible to and usable by individuals with disabilities: (1)
web content that a recipient makes available to members of the public
or uses to offer programs or activities to members of the public; and
(2) mobile apps that a recipient makes available to members of the
public or uses to offer programs and activities to members of the
public.'' As detailed below, the remainder of proposed Sec. 84.84 sets
forth the specific standards that recipients are required to meet to
make their web content and mobile apps accessible and the proposed
timelines for compliance.
On August 4, 2023, DOJ published an NPRM in the Federal Register,
88 FR 51948, addressing the accessibility of websites and mobile
applications for entities covered by title II of the ADA. The
Department has closely coordinated this subpart with DOJ and much of
this Department's preamble and its regulatory text are the same as the
language in the DOJ NPRM. The Department will continue to work closely
with DOJ as each agency reviews comments in response to their
individual NPRMs and develops their rules in final form.
Background on Accessibility Standards for Websites and Web Content
Since 1994, the World Wide Web Consortium (W3C[supreg]) has been
the principal international organization involved in developing
protocols and guidelines for the web.\257\ The W3C[supreg] develops a
variety of voluntary technical standards and guidelines, including ones
relating to privacy, internationalization of technology, and, relevant
to this rulemaking, accessibility. The Web Accessibility Initiative
(WAI) of theW3C[supreg] has developed voluntary guidelines for web
accessibility, known as the Web Content Accessibility Guidelines
(WCAG), to help web developers create web content that is accessible to
individuals with disabilities.
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\257\ W3C[supreg], About Us, https://www.w3.org/about/ [https://perma.cc/TQ2W-T377].
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The first version of WCAG, WCAG 1.0, was published in 1999. WCAG
2.0 was published in December 2008.\258\ WCAG 2.0 was approved as an
international standard by the International Organization for
Standardization (ISO) and the International Electrotechnical Commission
(IEC) in October 2012.\259\ WCAG 2.1, the most recent and updated
recommendation of WCAG, was published in June 2018.\260\
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\258\ W3C[supreg], Web Content Accessibility Guidelines 2.0
(Dec., 2008), http://www.w3.org/TR/2008/REC-WCAG20-20081211/[https://perma.cc/L2NH-VLCR].
\259\ W3C[supreg], Web Accessibility Guidelines 2.0 Approved as
ISO/IEC International Standard (Oct. 15, 2012), https://www.w3.org/press-releases/2012/wcag2pas/ [https://perma.cc/JQ39-HGKQ].
\260\ W3C[supreg], Web Content Accessibility Guidelines 2.1
(June 2018), https://www.w3.org/TR/WCAG21/ [https://perma.cc/UB8A-GG2F]. Additionally, in May 2021, WAI published a working draft for
WCAG 2.2, which has yet to be finalized. W3C[supreg], Web Content
Accessibility Guidelines 2.2 (May 21, 2021), https://www.w3.org/TR/WCAG22/ [https://perma.cc/M4G8-Z2GY]. The WAI also published a
working draft of WCAG 3.0 in December 2021. W3C[supreg], Web Content
Accessibility Guidelines 3.0 (Dec. 7, 2021), https://www.w3.org/TR/wcag-3.0/ [https://perma.cc/7FPQ-EEJ7].
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WCAG 2.1 contains four principles that provide the foundation for
web accessibility: perceivable, operable, understandable, and
robust.\261\ Testable success criteria (i.e., requirements for web
accessibility that are measurable) are provided ``to be used where
requirements and conformance testing are necessary such as in design
specification, purchasing, regulation and contractual agreements.''
\262\ Thus, WCAG 2.1 contemplates establishing testable success
criteria that could be used in regulatory efforts such as this one.
---------------------------------------------------------------------------
\261\ See W3C[supreg], Web Content Accessibility Guidelines 2.1
(June 5, 2018), https://www.w3.org/TR/WCAG21/ [https://perma.cc/UB8A-GG2F].
\262\ See W3C[supreg], Web Content Accessibility Guidelines 2.1,
WCAG 2 Layers of Guidance (June 5, 2018), https://www.w3.org/TR/WCAG21/#wcag-2-layers-of-guidance [https://perma.cc/5PDG-ZTJE]
(emphasis added).
---------------------------------------------------------------------------
Proposed WCAG Version
The Department is proposing to adopt WCAG 2.1 as the technical
standard for web and mobile app accessibility under section 504. WCAG
2.1 represents the most recent and updated published recommendation of
WCAG. WCAG 2.1 incorporates and builds upon WCAG 2.0--meaning that WCAG
2.1 includes all of the WCAG 2.0 success criteria, in addition to
success criteria that were developed under WCAG 2.1.\263\ Specifically,
WCAG 2.1 added 12 Level A and AA success criteria to the 38 success
criteria contained in WCAG 2.0 AA.\264\ The additional criteria provide
important accessibility benefits, especially for people with low
vision, manual dexterity disabilities, and cognitive and learning
disabilities.\265\ The additional criteria are intended to improve
accessibility for mobile web content and mobile apps.\266\ The
Department anticipates that WCAG 2.1 is familiar to web developers as
it comprises WCAG 2.0's requirements--which have been in existence
since 2008--and 12 new Level A and AA requirements that have been in
existence since 2018.
---------------------------------------------------------------------------
\263\ W3C[supreg], What's New in WCAG 2.1 (Aug. 13, 2020),
https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/ [https://perma.cc/W8HK-Z5QK].
\264\ Id.
\265\ Id.
\266\ See id.
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The Department expects that adopting WCAG 2.1 as the technical
standard will have benefits that are important to ensuring access for
people with disabilities to recipients' programs and activities. For
example, WCAG 2.1 requires that text be formatted so that it is easier
to read when magnified.\267\
[[Page 63426]]
This is important, for example, for people with low vision who use
magnifying tools. Without the formatting that WCAG 2.1 requires, a
person magnifying the text might find reading the text disorienting
because they could have to scroll horizontally on every line.\268\
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\267\ See W3C[supreg], Web Content Accessibility Guidelines 2.1,
Reflow (June 5, 2018), https://www.w3.org/TR/WCAG21/#reflow [https://perma.cc/YRP5-M599].
\268\ Id.
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WCAG 2.1 also has new success criteria addressing the accessibility
of mobile apps or web content viewed on a mobile device. For example,
WCAG 2.1 Success Criterion 1.3.4 requires that page orientation (i.e.,
portrait or landscape) not be restricted to just one orientation unless
a specific display orientation is essential.\269\ This feature is
important, for example, for someone who uses a wheelchair with a tablet
attached to it such that the tablet cannot be rotated.\270\ If content
only works in one orientation (i.e., portrait or landscape) it will not
always work for this individual depending on how the tablet is oriented
and could render that content or app unusable for the person.\271\
Another WCAG 2.1 success criterion requires, in part, that if a device
can be operated by motion--for example, shaking the device to undo
typing--that there be an option to turn off that motion
sensitivity.\272\ This could be important, for example, for someone who
has tremors so that they do not accidentally undo their typing.\273\
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\269\ See W3C[supreg], Web Content Accessibility Guidelines 2.1,
Orientation (June 5, 2018), https://www.w3.org/TR/WCAG21/#orientation [https://perma.cc/FC3E-FRYK].
\270\ Id.
\271\ See id.
\272\ See W3C[supreg], Web Content Accessibility Guidelines 2.1,
Motion Actuation (June 5, 2018), https://www.w3.org/TR/WCAG21/#motion-actuation [https://perma.cc/6S93-VX58].
\273\ Id.
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Such accessibility features are critical for people with
disabilities to have equal access to recipients' programs and
activities. This is particularly true given that using mobile devices
to access government services is commonplace. For example, in August
2022, about 54 percent of visits to Federal Government websites over
the previous 90 days were from mobile devices.\274\ In addition, WCAG
2.1's incorporation of mobile-related criteria is important because of
recipients' increasing use of mobile apps in offering their programs
and activities via mobile apps. As discussed in more detail later,
recipients are using mobile apps to offer a range of critical services.
---------------------------------------------------------------------------
\274\ General Services Administration Digital Analytics Program,
https://analytics.usa.gov/ [https://perma.cc/2YZP-KCMG] (last
visited Aug. 8, 2022).
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Because WCAG 2.1 is the most recent recommended version of WCAG and
generally familiar to web professionals, the Department expects it is
well-positioned to continue to be relevant even as technology
inevitably evolves. In fact, the W3C[supreg] advises using WCAG 2.1
over WCAG 2.0 when possible because WCAG 2.1 incorporates more forward-
looking accessibility needs.\275\ The WCAG standards were designed to
be ``technology neutral.'' This means that they are designed to be
broadly applicable to current and future technologies.\276\ Thus, WCAG
2.1 also allows web and mobile app developers flexibility and potential
for innovation.
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\275\ W3C[supreg], WCAG 2.0 Overview (June 30, 2022), https://www.w3.org/WAI/standards-guidelines/wcag/ [https://perma.cc/L7NX-8XW3].
\276\ W3C[supreg], Understanding WCAG 2.1 (July 7, 2022),
https://www.w3.org/WAI/WCAG21/Understanding/intro [https://perma.cc/4TZQ-USCJ].
---------------------------------------------------------------------------
The Department also expects that recipients are likely already
familiar with WCAG 2.1 or will be able to become familiar quickly. This
is because WCAG 2.1 has been available since 2018, and it builds upon
WCAG 2.0, which has been in existence since 2008 and has been
established for years as a benchmark for accessibility. In other words,
the Department expects that web developers and professionals who work
for or with recipients are likely to be familiar with WCAG 2.1, and if
they are not already familiar with WCAG 2.1, the Department expects
that they are at least likely to be familiar with WCAG 2.0 and will be
able to become acquainted quickly with WCAG 2.1's 12 additional Level A
and AA success criteria. The Department also believes that resources
exist to help recipients implement or understand how to implement not
only WCAG 2.0 Level AA, but also WCAG 2.1 Level AA. Additionally,
recipients will have two or three years to come into compliance with a
final rule, which should also provide sufficient time to get acquainted
with and implement WCAG 2.1.
According to the Department's research, WCAG 2.1 is also being
increasingly used by members of the public and recipients. In fact, DOJ
recently included WCAG 2.1 in several settlement agreements with
covered entities addressing inaccessible websites.\277\
---------------------------------------------------------------------------
\277\ See, e.g., Settlement Agreement with CVS Pharmacy, Inc.
(Apr. 11, 2022), https://archive.ada.gov/cvs_sa.pdf [https://perma.cc/H5KZdocuments/attachments/2021/12/14/champaign-urbana_sa.pdf [https://perma.cc/66XY-QGA8]; Settlement Agreement
with Hy-Vee, Inc. (Dec. 1, 2021) https://archive.ada.gov/hy-vee_sa.pdf [https://perma.cc/GFY6-BJNE]; Settlement Agreement with
Rite Aid Corp. (Nov. 1, 2021), https://archive.ada.gov/rite_aid_sa.pdf [https://perma.cc/4HBF-RBK2].-4VVF]; Settlement
Agreement with Meijer, Inc. (Feb. 2, 2022), https://archive.ada.gov/meijer_sa.pdf [https://perma.cc/5FGD-FK42]; Settlement Agreement
with The Kroger Co. (Jan. 28, 2022), https://archive.ada.gov/kroger_co_sa.pdf [https://perma.cc/6ASX-U7FQ]; Settlement Agreement
with Champaign-Urbana Mass Transit Dist. (Dec. 14, 2021), https://www.justice.gov/d9/case-.
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In evaluating what technical standard to propose, the Department
also considered WCAG 2.0. In addition, the Department considered the
standards set forth under section 508 of the Rehabilitation Act, which
governs the accessibility of the Federal Government's web content and
is harmonized with WCAG 2.0.\278\ In 2017, when the United States
Access Board adopted WCAG 2.0 as the technical standard for the Federal
Government's web content under section 508, WCAG 2.1 had not been
finalized.\279\ The Department ultimately decided to propose WCAG 2.1
as the appropriate standard. A number of countries that have adopted
WCAG 2.0 as their standard are now making efforts to move or have moved
to WCAG 2.1.\280\ In countries that are part of the European Union,
public sector websites and mobile apps generally must meet a technical
standard that requires conformance with the WCAG 2.1 Level AA success
criteria.\281\ And although WCAG 2.0 is the standard adopted by the
Department of Transportation in its rule implementing the Air Carrier
Access Act, which covers airlines' websites and kiosks,\282\ that
rule--like the section 508 rule--was promulgated before WCAG 2.1 was
published.
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\278\ 36 CFR 1194, app. A.
\279\ See Information and Communication Technology (``ICT'')
Standards and Guidelines, 82 FR 5790, 5791 (Jan. 18, 2017);
W3C[supreg], Web Content Accessibility Guidelines 2.1 (June 5,
2018), https://www.w3.org/TR/WCAG21/ [https://perma.cc/UB8A-GG2F].
\280\ See e.g., Exploring WCAG 2.1 for Australian government
services, Australian Government Digital Transformation Agency (Aug.
22, 2018), https://www.dta.gov.au/blogs/exploring-wcag-21-australian-government-services.
\281\ Web Accessibility, European Commission (July 13, 2022),
https://digital-strategy.ec.europa.eu/en/policies/web-accessibility
[https://perma.cc/LSG9-XW7L]; Accessibility Requirements for ICT
Products and Services, European Telecommunications Standards
Institute, 45-51, 64-78 (Mar. 2021), https://www.etsi.org/deliver/etsi_en/301500_301599/301549/03.02.01_60/en_301549v030201p.pdf
[https://perma.cc/5TEZ-9GC6].
\282\ See 14 CFR 382.
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The Department expects that the wide usage of WCAG 2.0 lays a solid
foundation for recipients to become familiar with and implement WCAG
2.1's additional Level A and AA criteria. According to the Department's
research, approximately 48 States either use or strive to use a WCAG
2.0 standard or
[[Page 63427]]
greater for at least some of their state web content. It appears that
at least four of these States--Louisiana, Maryland, Nebraska, and
Washington--already either use WCAG 2.1 or strive to use WCAG 2.1 for
at least some of their web content.
WCAG 2.1 represents the most up-to-date recommendation and is
generally familiar to web professionals. It offers important
accessibility benefits for people with disabilities that affect manual
dexterity, adds some criteria to reduce barriers for those with low
vision and cognitive disabilities, and expands coverage of mobile
content. Given that recipients will have two or three years to comply,
the Department views WCAG 2.1 as the appropriate technical standard to
propose at this time.
The Department is aware that a working draft for WCAG 2.2 was
published in May 2021 with a newer draft published in July of
2023.\283\ Several subsequent drafts have also been published.\284\ All
of the WCAG 2.0 and WCAG 2.1 success criteria except for one are
included in WCAG 2.2.\285\ But WCAG 2.2 also includes six additional
Level A and AA success criteria beyond those included in WCAG 2.1.\286\
Like WCAG 2.1, WCAG 2.2 offers benefits for individuals with low
vision, limited manual dexterity, and cognitive disabilities. For
example, Success Criterion 3.3.8, which is a new criterion under the
working draft of WCAG 2.2, improves access for people with cognitive
disabilities by limiting the use of cognitive function tests, like
solving puzzles, in authentication processes.\287\ Because WCAG 2.2 has
not yet been finalized and is subject to change, and web professionals
have had less time to become familiar with the additional success
criteria that have been incorporated into the working draft of WCAG
2.2, the Department does not believe it is appropriate to adopt WCAG
2.2 as the technical standard at this time.
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\283\ W3C[supreg], Web Content Accessibility Guidelines 2.2
(July 20, 2023), https://www.w3.org/TR/WCAG22/.
\284\ See, e.g., W3C[supreg], Web Content Accessibility
Guidelines 2.2 (May 17, 2023), https://www.w3.org/TR/WCAG22/
[https://perma.cc/SXA7-RF32].
\285\ W3C[supreg], What's New in WCAG 2.2 Draft (May 17, 2023),
https://www.w3.org/WAI/standards-guidelines/wcag/new-in-22/ [https://perma.cc/Y67R-SFSE].
\286\ Id.
\287\ Id.
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The Department is seeking feedback from the public about its
proposal to use WCAG 2.1 as the standard under this rule and its
assumptions underlying this decision. Please provide as much detail as
possible and any applicable data, suggested alternative approaches or
requirements, arguments, explanations, and examples in your responses
to the following questions.
Web Accessibility Question 4: Are there technical
standards or performance standards other than WCAG 2.1 that the
Department should consider? For example, if WCAG 2.2 is finalized
before the Department issues a final rule, should the Department
consider adopting that standard? If so, what is a reasonable time frame
for recipient conformance with WCAG 2.2 and why? Is there any other
standard that the Department should consider, especially in light of
the rapid pace at which technology changes?
Proposed WCAG Conformance Level
For a web page to conform to WCAG 2.1, the web page must satisfy
the success criteria under one of three levels of conformance: A, AA,
or AAA. The three levels of conformance indicate a measure of
accessibility and feasibility. Level A, which is the minimum level of
accessibility, contains criteria that provide basic web accessibility
and are the least difficult to achieve for web developers.\288\ Level
AA, which is the intermediate level of accessibility, includes all of
the Level A criteria and contains enhanced criteria that provide more
comprehensive web accessibility and yet, are still achievable for most
web developers.\289\ Level AAA, which is the highest level of
conformance, includes all of the Level A and Level AA criteria and
contains additional criteria that can provide a more enriched user
experience, but are the most difficult to achieve for web
developers.\290\ The W3C[supreg] does not recommend that Level AAA
conformance be required as a general policy for entire websites because
it is not possible to satisfy all Level AAA criteria for some
content.\291\
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\288\ W3C[supreg], Web Content Accessibility Guidelines (WCAG) 2
Level A Conformance (July 13, 2020), https://www.w3.org/WAI/WCAG2A-Conformance [https://perma.cc/KT74-JNHG].
\289\ Id.
\290\ Id.
\291\ See W3C[supreg], Understanding Conformance, Understanding
Requirement 1 (last updated Aug. 19, 2022), https://www.w3.org/WAI/WCAG21/Understanding/conformance [https://perma.cc/9ZG9-G5N8].
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Based on review of previous public feedback and independent
research, the Department believes that WCAG 2.1 Level AA is an
appropriate conformance level because it includes criteria that provide
web accessibility to individuals with disabilities--including those
with visual, auditory, physical, speech, cognitive, and neurological
disabilities--and yet is feasible for recipients' web developers to
implement. In addition, Level AA conformance is widely used, making it
more likely that web developers are already familiar with its
requirements. While many of the entities that conform to Level AA do so
under WCAG 2.0, not 2.1, this still suggests a widespread familiarity
with most of the Level AA success criteria, given that 38 of the 50
Level A and AA success criteria in WCAG 2.1 are also included in WCAG
2.0. The Department believes that Level A conformance alone is not
appropriate for recipients because it does not include criteria for
providing web accessibility that the Department understands are
critical, such as minimum level of color contrast so that items like
text boxes or icons are easier to see, which is important for people
with vision disabilities. Also, while Level AAA conformance provides a
richer user experience, it is the most difficult to achieve for many
entities. Therefore, the Department is proposing Level AA conformance
for public feedback as to whether it strikes the right balance between
accessibility for individuals with disabilities and achievability for
recipients.
Adopting a WCAG 2.1 Level AA conformance level would make the ADA
requirements consistent with a standard that has been widely accepted
internationally. Many nations have selected Level AA conformance as
their standard for web accessibility.\292\ The web content of Federal
agencies that are governed by section 508 also need to comply with
Level AA.\293\
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\292\ See W3C[supreg], Web Accessibility Laws & Policies (Mar.
21, 2018), https://www.w3.org/WAI/policies/ [https://perma.cc/5EBY-3WX4].
\293\ See Information and Communication Technology (``ICT'')
Standards and Guidelines, 82 FR 5790, 5791 (Jan. 18, 2017).
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In its proposed regulatory text in Sec. 84.84(b)(1) and (2), the
Department provides that recipients must ``comply with Level A and
Level AA success criteria and conformance requirements specified in
WCAG 2.1.'' WCAG 2.1 provides that for ``Level AA conformance, the web
page [must] satisf[y] all the Level A and Level AA Success Criteria. .
. .'' \294\ However, individual success criteria in WCAG 2.1 are
labeled only as Level A or Level AA. Therefore, a person reviewing
individual requirements in WCAG 2.1 may not understand that both Level
A and Level AA success criteria must be
[[Page 63428]]
met in order to attain Level AA. Accordingly, the Department has made
explicit in its proposed regulation that both Level A and Level AA
success criteria and conformance requirements must be met in order to
comply with the proposed web accessibility requirements.
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\294\ See W3C[supreg], Conformance Requirements, Web Content
Accessibility Guidelines (WCAG) 2.1 (June 5, 2018), https://www.w3.org/TR/WCAG21/#cc1 [https://perma.cc/ZL6N-VQX4]. WCAG 2.1
also states that a Level AA conforming alternate version may be
provided. The Department has adopted a slightly different approach
to conforming alternate versions, which is discussed below.
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Conformance Level for Small Recipients
The Department considered proposing another population threshold of
very small recipients that would be subject to a lower conformance
level or WCAG version, to reduce the burden of compliance on those
recipients. However, the Department decided against this proposal due
to a variety of factors. First, this would make for inconsistent levels
of WCAG conformance across recipients, and a universal standard for
consistency in implementation would promote predictability. A universal
level of conformance would reduce confusion about which standard
applies, and it would create a basic level of compliance for all
recipients to follow. It would also allow for people with disabilities
to know what they can expect when navigating a recipient's website; for
example, it will be helpful for people with disabilities to know that
they can expect to be able to navigate a recipient's website
independently using their assistive technology. Finally, for the
reasons discussed above, the Department believes that WCAG 2.1 Level AA
contains criteria that are critical to accessing programs and
activities of recipients, which may not be included under a lower
standard. However, the Department recognizes that small recipients--
those with fewer than fifteen employees--might initially face more
technical and resource challenges in complying than larger recipients.
Therefore, as discussed below, the Department has decided to propose
different compliance dates according to a recipient's size to reduce
burdens on small recipients.
Possible Alternative Standards for Compliance
The Department considered proposing to adopt the section 508
standards for ICT, but decided not to take this approach. The section
508 standards are harmonized with WCAG 2.0 for web content and certain
other ICT, and for the reasons discussed above, the Department believes
WCAG 2.1--which had not been finalized at the time the section 508
standards were promulgated--is the more appropriate recommendation for
this proposed rule. Moreover, by adopting WCAG on its own rather than
adopting it through the section 508 standards, the Department can then
tailor the rules to recipients as it does in this proposed rule.
The Department also considered adopting performance standards
instead of specific technical standards for accessibility of web
content. Performance standards establish general expectations or goals
for web accessibility and allow for compliance via a variety of
unspecified methods. Performance standards could provide greater
flexibility in ensuring accessibility as web technologies change.
However, based on what the Department has heard previously from the
public and its own knowledge of this area, the Department understands
that performance standards might be too vague and subjective and could
prove insufficient in providing consistent and testable requirements
for web accessibility. Additionally, the Department expects that
performance standards would likely not result in predictability for
either recipients or people with disabilities in the way that a more
specific technical standard would. Further, similar to a performance
standard, WCAG has been designed to allow for flexibility and
innovation in the evolving web environment. The Department recognizes
the importance of adopting a standard for web accessibility that
provides not only specific and testable requirements, but also
sufficient flexibility to develop accessibility solutions for new web
technologies. The Department believes that WCAG achieves this balance
because it provides flexibility similar to a performance standard, but
it also provides more clarity, consistency, predictability, and
objectivity. Using WCAG also enables recipients to know precisely what
is expected of them under section 504, which may be of particular
benefit to jurisdictions with less technological experience. This will
assist recipients in targeting accessibility errors, which may reduce
costs they would incur without clear expectations.
Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Web Accessibility Question 5: What compliance costs and
challenges might small recipients face in conforming with this rule?
How accessible are small recipients' current web content and mobile
apps? Do small recipients have internal staff to modify their web
content and mobile apps, or do they use outside consulting staff to
modify and maintain their web content and mobile apps? If small
recipients have recently, for example in the past three years, modified
their web content and mobile apps to make them accessible, what costs
were associated with those changes?
Web Accessibility Question 6: Should the Department adopt
a different WCAG version or conformance level for small recipients or a
subset of small recipients?
Recipients' Use of Social Media Platforms
Recipients are increasingly using social media platforms to provide
information and communicate with the public about their programs and
activities in lieu of or in addition to engaging the public on their
own websites. The Department is using the term ``social media
platforms'' to refer to websites or mobile apps of third parties whose
primary purpose is to enable users to create and share content in order
to participate in social networking (i.e., the creation and maintenance
of personal and business relationships online through websites and
mobile apps like Facebook, Instagram, Twitter, and LinkedIn).
The Department is proposing to require that web content that
recipients make available to members of the public or use to offer
programs and activities to members of the public be accessible within
the meaning of proposed Sec. 84.84. This requirement would apply
regardless of whether that web content is located on the recipient's
own website, or elsewhere on the web. It therefore covers web content
that a recipient offers via a social media platform. Even where a
social media platform is not fully accessible, a recipient can
generally take actions to ensure that the web content that it posts is
accessible and in conformance with WCAG 2.1.\295\ The Department
understands that social media platforms often make available certain
accessibility features like the ability to add captions or alt text. It
is, however, the recipients' responsibility to use these features when
they make web content available on social media sites. For example, if
a recipient posts an image to a social media site that allows users to
post alt text, the recipient needs to ensure that appropriate alt text
accompanies that image so that screen reader users can access the
information.
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\295\ See Federal Social Media Accessibility Toolkit Hackpad,
Digital.gov (June 21, 2022), https://digital.gov/resources/federal-social-media-accessibility-toolkit-hackpad/ [https://perma.cc/DJ8X-UCHA].
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[[Page 63429]]
At this time, the Department is not proposing any regulatory text
specific to the web content that recipients offer the public via social
media platforms because content posted on social media platforms will
be treated the same as any other content recipients post on the web.
However, the Department is considering creating an exception from
coverage under the rule for social media posts if they were posted
before the effective date of the rule. This exception would recognize
that making preexisting social media content accessible may be
impossible at this time or result in a significant burden. Many
recipients have posted social media content for several years, often
numbering thousands of posts, which may not all be accessible. The
benefits of making all preexisting social media posts accessible might
also be limited as these posts are intended to provide current updates
on platforms that are frequently refreshed with new information. The
Department is considering this exception in recognition of the fact
that for many recipients their resources may be better spent ensuring
that current web content is accessible, rather than reviewing all
preexisting social media content for compliance or possibly deleting
their previous posts. The Department is looking for input on whether
this approach would make sense and whether any limitations to this
approach are necessary, such as providing that the exception does not
apply when preexisting social media content is currently used to offer
a program or activity, or possibly limiting this exception when the
public requests certain social media content to be made accessible.
The Department is also weighing whether recipients' preexisting
videos posted to social media platforms such as YouTube should be
excepted from coverage due to these same concerns or otherwise be
treated differently.
Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Web Accessibility Question 7: How do recipients use social
media platforms and how do members of the public use content made
available by recipients on social media platforms? What kinds of
barriers do people with disabilities encounter when attempting to
access recipients' services via social media platforms?
Mobile Applications
The Department is proposing to adopt the same technical standard
for mobile app accessibility as it is for web content--WCAG 2.1 Level
AA. As discussed earlier, WCAG 2.1 was published in June 2018 and was
developed, in part, to address mobile accessibility.\296\
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\296\ W3C[supreg], What's New in WCAG 2.1 (Aug. 13, 2020),
https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/ [https://perma.cc/W8HK-Z5QK].
---------------------------------------------------------------------------
The Department considered applying WCAG 2.0 Level AA to mobile
apps, which is a similar approach to the requirements in the final rule
promulgated by the United States Access Board in its update to the
section 508 Standards.\297\ WCAG 2.1 was not finalized when the Access
Board adopted the section 508 Standards. When WCAG 2.0 was originally
drafted in 2008, mobile apps were not as widely used or developed.
Further, the technology has grown considerably since that time.
Accordingly, WCAG 2.1 provides 12 additional Level A and AA success
criteria not included in WCAG 2.0 to ensure, among other things, that
mobile apps are more accessible to individuals with disabilities using
mobile devices.\298\ For example, WCAG 2.1 includes Success Criterion
1.4.12, which ensures that text spacing (e.g., letter spacing, line
spacing, word spacing) meets certain requirements to ensure
accessibility; Success Criterion 2.5.4, which enables the user to
disable motion actuation (e.g., disable the ability to activate a
device's function by shaking it) to prevent such things as accidental
deletion of text; and Success Criterion 1.3.5, which allows a user to
input information such as a name or address automatically.\299\
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\297\ See 82 FR 5790, 5815 (Jan. 18, 2017).
\298\ W3C[supreg], What's New in WCAG 2.1 (Aug. 13, 2020),
https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/ [https://perma.cc/W8HK-Z5QK].
\299\ W3C[supreg], Web Content Accessibility Guidelines 2.1
(June 5, 2018), https://www.w3.org/TR/WCAG21/ [https://perma.cc/UB8A-GG2F].
---------------------------------------------------------------------------
The Access Board's section 508 Standards include additional
requirements applicable to mobile apps that are not in WCAG 2.1, and
the Department is requesting feedback on whether to adopt those
requirements as well. For example, the Section 508 Standards apply the
following requirements not found in WCAG 2.1 to mobile apps:
interoperability requirements to ensure that a mobile app does not
disrupt a device's assistive technology for persons with disabilities
(e.g., screen readers for persons who are blind or have low vision);
requirements for mobile apps to follow preferences on a user's phone
such as settings for color, contrast, and font size; and requirements
for caption controls and audio description controls that enable users
to adjust caption and audio control functions.\300\
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\300\ 36 CFR part 1194, app. C (sections 502.1, 502.2.2, 503.2,
503.4.1, and 503.4.2).
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Adopting WCAG 2.1 Level AA for mobile apps will help ensure this
rule's accessibility standards for mobile apps are consistent with this
rule's accessibility standards for web content. We seek comments on
this approach below. Please provide as much detail as possible and any
applicable data, suggested alternative approaches or requirements,
arguments, explanations, and examples in your responses to the
following questions.
Web Accessibility Question 8: How do recipients use mobile
apps to make information and services available to the public? What
kinds of barriers do people with disabilities encounter when attempting
to access recipients' programs and activities via mobile apps? Are
there any accessibility features unique to mobile apps that the
Department should be aware of?
Web Accessibility Question 9: Is WCAG 2.1 Level AA the
appropriate accessibility standard for mobile apps? Should the
Department instead adopt another accessibility standard or alternatives
for mobile apps, such as the requirements from Section 508 discussed
above?
Requirements by Recipient Size
Section 84.84(b) sets forth the proposed specific standard with
which the web content and mobile apps that recipients make available to
member of the public or use to offer programs and activities to members
of the public must comply, and also proposes time frames for
compliance. The proposed requirements of Sec. 84.84(b) are generally
delineated by the size of the recipient.
Section 84.84(b)(1): Larger Recipients
Section 84.84(b)(1) sets forth the proposed web and mobile app
accessibility requirements for recipients with fifteen or more
employees. The requirements of Sec. 84.84(b)(1) are meant to apply to
larger recipients.\301\ Under the Department's proposal, the number of
employees is used to determine a
[[Page 63430]]
recipient's compliance time frame. Each recipient should be able to
easily determine whether it has fifteen or more employees.
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\301\ Section 504 commonly differentiates between small and
large recipients by measuring whether a recipient employs fifteen or
more employees, and the Department will use that standard to
determine whether a recipient is large or small for the purpose of
this section. See, e.g., 45 CFR 84.9 (defining recipients with fewer
than fifteen employees as ``small recipients'' and discussing
administrative requirements).
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Proposed Sec. 84.84(b)(1) requires that a recipient with fifteen
or more employees shall ensure that the web content and mobile apps it
makes available to members of the public or uses to offer programs or
activities to members of the public, comply with Level A and Level AA
success criteria and conformance requirements specified in WCAG 2.1.
Recipients subject to Sec. 84.84(b)(1) have two years after the
publication of a final rule to make their web content and mobile apps
accessible, unless they can demonstrate that compliance with Sec.
84.84(b)(1) would result in a fundamental alteration in the nature of a
program or activity or undue financial and administrative burdens. The
limitations on a recipient's obligation to comply with the proposed
requirements are discussed in more detail below.
The Department is aware that members of the public have differing
views on an appropriate time frame for requiring compliance with
technical web accessibility standards. Individuals with disabilities or
disability advocacy organizations tended to prefer a shorter time
frame, often arguing that web accessibility has long been required by
section 504 and that extending the deadline for compliance rewards
recipients that have not made efforts to make their websites
accessible. Some recipients have asked for more time to comply. Some
recipients have been particularly concerned about shorter compliance
deadlines, often citing budgets and staffing as major limitations. In
the past, some recipients stated that they lacked qualified personnel
to implement the web accessibility requirements of WCAG 2.0, which was
relatively new at the time. Those recipients asserted that in addition
to needing time to implement the changes to their websites, they also
needed time to train staff or contract with professionals who are
proficient in developing accessible websites.
Considering all these factors, the Department is proposing a two-
year implementation time frame for recipients with 15 or more
employees. Regulated entities and the community of web developers have
had over a decade to familiarize themselves with WCAG 2.0, which was
published in 2008 and serves as the foundation for WCAG 2.1, and five
years to familiarize themselves with the additional 12 success criteria
of WCAG 2.1. Though the Department is now proposing requiring
recipients to conform with WCAG 2.1 instead of WCAG 2.0, the Department
believes the time allowed to come into compliance is appropriate. As
discussed above, WCAG 2.1 Level AA only adds 12 Level A and AA success
criteria that were not included in WCAG 2.0. The Department believes
these additional success criteria will not significantly increase the
time or resources that it will take for a recipient to come into
compliance with the proposed rule, beyond what would have already been
required to conform with WCAG 2.0, though the Department seeks the
public's input on this belief. The Department therefore believes this
proposal balances the resource challenges reported by recipients with
the interests of individuals with disabilities in accessing the
multitude of programs and activities that recipients now offer via the
web and mobile apps.
Section 84.84(b)(2): Small Recipients
The Department is also aware that some recipients believe there
should be different compliance requirements or a different compliance
date for small recipients in order to take into account the impact on
small entities as required by the Regulatory Flexibility Act of 1980
and Executive Order 13272.\302\ Many disability organizations and
individuals have opposed having a different timetable or accessibility
requirements for smaller recipients, stating that many small recipients
have smaller websites with fewer web pages, which would make compliance
easier. The Department is also aware that other members of the public
oppose different timetables or accessibility requirements for smaller
recipients. These commenters note that small recipients are protected
from excessive burdens deriving from rigorous compliance dates or
stringent accessibility standards by the ADA's ``undue burdens''
compliance limitations. It is also the Department's understanding that
many web accessibility professionals may operate online and could be
available to assist recipients with compliance regardless of their
location.
---------------------------------------------------------------------------
\302\ See 75 FR 43460, 43467 (July 26, 2010).
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Many of those expressing concerns about compliance dates, including
web developers, have stated that compliance in incremental levels would
help recipients allocate resources--both financial and personnel--to
bring their websites into compliance. The Department is aware that many
small recipients do not have a dedicated web developer or staff. The
Department is also aware that when these small recipients develop or
maintain their own websites, they often do so with staff who have only
a cursory knowledge of web design and use manufactured web templates or
software, which may create inaccessible web pages. Some small
recipients have expressed concern that even when they do use outside
help, there is likely to be a shortage of professionals who are
proficient in web accessibility and can assist all recipients in
bringing their websites into compliance.
In light of these concerns, Sec. 84.84(b)(2) sets forth the
Department's proposed web and mobile app accessibility requirements for
small recipients. Specifically, proposed Sec. 84.84(b)(2) covers those
recipients with fewer than fifteen employees. Section 84.84(b)(2) would
require these recipients to ensure that the web content and mobile apps
they make available to the public or use to offer programs and
activities to members of the public comply with Level A and Level AA
success criteria and conformance requirements specified in WCAG 2.1,
unless they can demonstrate that compliance would result in a
fundamental alteration in the nature of a program or activity or undue
financial and administrative burdens. This is the same substantive
standard that applies to larger recipients. However, the Department is
proposing to give these small recipients additional time to bring their
web content and mobile apps into compliance with Sec. 84.84(b)(2).
Specifically, small recipients covered by Sec. 84.84(b)(2) will have
three years after the publication of a final rule to make their web
content and mobile apps compliant with the Department's proposed
requirements. The Department believes this longer phase-in period would
be prudent to allow small recipients to properly allocate their
personnel and financial resources in order to bring their web content
and mobile apps into compliance with the Department's proposed
requirements.
Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Web Accessibility Question 10: How will the proposed
compliance date affect small recipients? Are there technical or budget
constraints that small recipients would face in complying with this
rule, such that a longer phase-in period is appropriate?
Web Accessibility Question 11: How will the proposed
compliance date affect people with disabilities, particularly in rural
areas?
Web Accessibility Question 12: How should the Department
define ``small recipient''? Should categories of small
[[Page 63431]]
recipients other than those already delineated in this proposed rule be
subject to a different WCAG 2.1 conformance level or compliance date?
Web Accessibility Question 13: Should the Department
consider factors other than the number of employees, such as annual
budget, when establishing different or tiered compliance requirements?
If so, what should those factors be, why are they more appropriate than
the number of employees, and how should they be used to determine
regulatory requirements?
Limitations
The proposed rule sets forth the limitations on recipients'
obligations to comply with the specific requirements of this proposed
rule. For example, where it would impose an undue financial and
administrative burden to conform with WCAG 2.1 (or part of WCAG 2.1),
recipients would not be required to remove their web content and mobile
apps, forfeit their web presence, or otherwise undertake changes that
would be unduly burdensome. Further, as proposed in Sec. 84.84(b), the
web and mobile app accessibility requirements would not require any
recipient to take actions that would result in a fundamental alteration
in the nature of a program or activity.
In circumstances where officials of a recipient believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, a recipient
has the burden of proving that compliance would result in such
alteration or burdens. The decision that compliance would result in
such alteration or burdens must be made by the head of the recipient or
their designee after considering all resources available for use in the
funding and operation of the program or activity and must be
accompanied by a written statement of the reasons for reaching that
conclusion. If an action required to comply with proposed Sec.
84.84(b) would result in such an alteration or such burdens, a
recipient must take any other action that would not result in such an
alteration or such burdens but would nevertheless ensure that, to the
maximum extent possible, individuals with disabilities receive the
benefits or services provided by the recipient. For more information,
see the discussion below regarding limitations on obligations under
proposed Sec. 84.85.
Entities Covered by Both Section 504 and Title II of the ADA
Compliance with this regulation does not necessarily ensure
compliance with other statutes and their implementing regulations. For
example, the Department is aware that DOJ is pursuing rulemaking
regarding web and mobile application standards under title II of the
ADA, and that some recipients under section 504 are also public
entities covered by title II of the ADA. Because this regulation does
not affect recipients' obligations under other laws, recipients who are
subject to both section 504 and title II of the ADA must comply with
both regulations.
Web Accessibility Question 14: Should the Department
consider other methods to ensure that a recipient that is also a public
entity under title II of the ADA has a single compliance period to come
into conformance with WCAG 2.1 AA? If so, what should those methods be?
Captions for Live-Audio Content
WCAG 2.1 Level AA Success Criterion 1.2.4 requires synchronized
captions for live-audio content. The intent of this success criterion
is to ``enable people who are deaf or hard of hearing to watch real-
time presentations. Captions provide the part of the content available
via the audio track. Captions not only include dialogue, but also
identify who is speaking and notate sound effects and other significant
audio.'' \303\ Modern live captioning often can be created with the
assistance of technology, such as by assigning captioners through Zoom
or other conferencing software, which integrates captioning with live
meetings.
---------------------------------------------------------------------------
\303\ See W3C[supreg], Captions (Live), Understanding WCAG 2.0:
A Guide to Understanding and Implementing WCAG 2.0, http://www.w3.org/TR/UNDERSTANDING-WCAG20/media-equiv-real-time-captions.html [https://perma.cc/NV74-U77R] (last visited Aug. 10,
2022) (emphasis in original).
---------------------------------------------------------------------------
The Department proposes to apply the same compliance date to all of
the WCAG 2.1 Level AA success criteria, including live-audio captioning
requirements. As noted above, this would allow for three years after
publication of the final rule for small recipients to comply, and two
years for large recipients. The Department believes this approach is
appropriate for several reasons. First, the Department understands that
technology utilizing live-audio captioning has developed in recent
years and continues to develop. In addition, the COVID-19 pandemic
moved a significant number of formerly in-person appointments,
meetings, activities, and other gatherings to online settings, many of
which incorporated live-audio captioning. As a result of these
developments, live-audio captioning has become even more critical for
individuals with certain types of disabilities to participate fully in
health and human service programs and activities. And while the
Department believes that the two and three-year periods described above
afford a sufficient amount of time for recipients to allocate resources
towards live-audio captioning, recipients have the option to
demonstrate that compliance with any success criterion would result in
a fundamental alteration in the nature of a program or activity or
undue financial and administrative burdens.
While at least one country that has adopted WCAG 2.0 Level AA as
its standard for web accessibility has exempted entities from having to
comply with the live-audio captioning requirements,\304\ the Department
does not believe this approach is appropriate or necessary under the
current circumstances, given the current state of live-audio captioning
technology and the critical need for live-audio captioning for people
with certain types of disabilities to participate more fully in civic
life. Further, the Department believes that the state of live-audio
captioning technology has advanced since 2016 when Canada made the
decision to exempt entities from the live-audio captioning
requirements.\305\ However, the Department is interested in learning
more about compliance capabilities. Accordingly, the Department poses
several questions for commenters about the development of live-audio
captioning technology and the Department's proposed requirement.
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\304\ See W3C[supreg], Canada (last updated Feb. 9, 2017),
https://www.w3.org/WAI/policies/canada/ [https://perma.cc/W2DS-FAE9].
\305\ See id.
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Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Web Accessibility Question 15: Should the Department
consider a different compliance date for the captioning of live-audio
content in synchronized media or exclude some recipients from the
requirement? If so, when should compliance with this success criterion
be required and why? Should there be a different compliance date for
different types or sizes of recipients?
Web Accessibility Question 16: What types of live-audio
content do small recipients post? What has been the cost for providing
live-audio captioning?
[[Page 63432]]
Sec. 84.85 Exceptions
This rule would require recipients to make their web content and
mobile apps accessible. However, the Department believes it may be
appropriate in some situations for certain content to be excepted from
compliance with the technical requirements of this proposed rule. The
Department is aware of a range of views on this issue, including that a
section 504 regulation should not include any exceptions because the
compliance limitations for undue financial and administrative burdens
would protect recipients from any unrealistic requirements. On the
other hand, the Department has also heard that exceptions are necessary
to avoid substantial burdens on recipients. The Department also expects
that such exceptions may help recipients avoid uncertainty about
whether they need to ensure accessibility in situations where it might
be extremely difficult. After consideration of the public's views and
after its independent assessment, the Department is proposing the
following exceptions and poses questions for public feedback. The
Department is interested in feedback about whether these proposed
exceptions would relieve the burden on public entities, and also how
these proposed exceptions would impact people with disabilities.
The Department is proposing exceptions from coverage--subject to
certain limitations--for the following seven categories of web content:
(1) archived web content; (2) preexisting conventional electronic
documents; (3) web content posted by third parties on a recipient's
website; (4) third-party web content linked from a recipient's website;
(5) course content on a recipient's password-protected or otherwise
secured website for admitted students enrolled in a specific course
offered by a public postsecondary institution; (6) class or course
content on a recipient's password-protected or otherwise secured
website for students enrolled, or parents of students enrolled, in a
specific class or course at an elementary or secondary school; and (7)
conventional electronic documents that are about a specific individual,
their property, or their account and that are password-protected or
otherwise secured. Additionally, there are certain limitations to these
exceptions--situations in which the otherwise excepted content still
must be made accessible. This proposed rule's exceptions as well as the
limitations on those exceptions are explained below.
Archived Web Content
Recipients' websites can often include a significant amount of
archived web content, which may contain information that is outdated,
superfluous, or replicated elsewhere. The Department's impression is
that generally, this historic information is of interest to only a
small segment of the general population. Still, the information may be
of interest to some members of the public, including some individuals
with disabilities, who are conducting research or are otherwise
interested in these historic documents. The Department is aware and
concerned, however, that recipients would need to expend considerable
resources to retroactively make accessible the large quantity of
historic or otherwise outdated information available on recipients'
websites. Thus, proposed Sec. 84.85(a) provides an exception from the
web access requirements of Sec. 84.84 for web content that meets the
definition of ``archived web content'' in Sec. 84.10. As mentioned
previously, Sec. 84.10 defines ``archived web content'' as ``web
content that (1) is maintained exclusively for reference, research, or
recordkeeping; (2) is not altered or updated after the date of
archiving; and (3) is organized and stored in a dedicated area or areas
clearly identified as being archived.'' The archived web content
exception allows recipients to keep and maintain historic web content,
while utilizing their resources to make accessible the many up-to-date
materials that people need to currently access public services or to
participate in civic life.
The Department notes that under this exception, recipients may not
circumvent their accessibility obligations by merely labeling their web
content as ``archived'' or by refusing to make accessible any content
that is old. The exception focuses narrowly on content that satisfies
all three of the criteria necessary to qualify as ``archived web
content,'' namely content that is maintained exclusively for reference,
research, or recordkeeping; is not altered or updated after the date of
archiving; and is organized and stored in a dedicated area or areas
clearly identified as being archived. If any one of those criteria is
not met, the content does not qualify as ``archived web content.'' For
example, if a recipient maintains content for any purpose other than
reference, research, or recordkeeping--such as for purposes of offering
a current program or activity--then that content would not fall within
the exception, even if a recipient labeled it as ``archived.''
Similarly, a recipient would not be able to circumvent its
accessibility obligations by rapidly moving newly posted content that
is maintained for a purpose other than reference, research, or
recordkeeping, or that the recipient continues to update, from a non-
archived section of its website to an archived section.
Though the Department proposes that archived web content be
excepted from coverage under this rule, if an individual with a
disability requests that certain archived web content be made
accessible, recipients generally have an existing obligation to make
these materials accessible in a timely manner and free of charge.\306\
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\306\ See, e.g., 28 CFR 35.130(b)(7); 28 CFR 35.160(b)(2); 45
CFR 84.4, now appearing in 84.68.
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Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Web Accessibility Question 17: How do recipients manage
content that is maintained for reference, research, or recordkeeping?
Web Accessibility Question 18: What would the impact of
this exception be on people with disabilities?
Web Accessibility Question 19: Are there alternatives to
this exception that the Department should consider, or additional
limitations that should be placed on this exception? How would
foreseeable advances in technology affect the need for this exception?
Preexisting Conventional Electronic Documents
As discussed in the section-by-section analysis for Sec. 84.5
above, the Department is proposing to add a definition for
``conventional electronic documents.'' Specifically, the proposed
definition provides that the term conventional electronic documents
``means web content or content in mobile apps that is in the following
electronic file formats: portable document formats (PDF), word
processor file formats, presentation file formats, spreadsheet file
formats, and database file formats.'' This list of conventional
electronic documents is intended to be an exhaustive list of file
formats, rather than an open-ended list.
Proposed Sec. 84.85(b) provides that ``conventional electronic
documents created by or for a recipient that are available on a
recipient's website or mobile app before the date the recipient is
required to comply with this rule'' do not have to comply with the web
accessibility requirements of Sec. 84.84, ``unless such documents are
currently
[[Page 63433]]
used by members of the public to apply for, gain access to, or
participate in a recipient's programs or activities.''
The Department is aware that many websites of recipients contain
conventional electronic documents. The Department expects that many of
these conventional electronic documents are in PDF format, but many
conventional electronic documents are formatted as word processor files
(e.g., Microsoft Word files), presentation files (e.g., Apple Keynote
or Microsoft PowerPoint files), spreadsheet files (e.g., Microsoft
Excel files), and database files (e.g., FileMaker Pro or Microsoft
Access files).
Because of the presence of conventional electronic documents on
recipient websites and mobile apps, and because of the difficulty of
remediating some complex types of information and data to make them
accessible after-the-fact, the Department believes recipients should
generally focus their personnel and financial resources on developing
new conventional electronic documents that are accessible and
remediating existing conventional electronic documents that are
currently used by members of the public to access the recipient's
programs or activities. For example, if before the date a recipient is
required to comply with this rule, the recipient's website contains a
series of out-of-date PDF reports on local COVID-19 statistics, those
reports need not conform with WCAG 2.1. Similarly, if a recipient
maintains decades' worth of influenza infection reports in conventional
electronic documents on the same web page as its current influenza
infection report, the historic reports that were posted before the date
the recipient was required to comply with this rule generally do not
need to comply with WCAG 2.1. As the recipient posts new reports going
forward, however, those reports must be accessible under WCAG 2.1. This
approach is expected to reduce the burdens on recipients.
This exception is subject to a limitation: it does not apply to any
existing documents that are currently used by members of the public to
apply for, access, or participate in the recipient's programs or
activities. In referencing ``documents that are currently used,'' the
Department intends to cover documents that are used by members of the
public at any given point in the future, not just at the moment in time
when this rule is published. This limitation includes documents that
provide instructions or guidance. For example, a recipient must not
only make a new patient form accessible, but it must also make
accessible other materials that may be needed to complete the form,
understand the process, or otherwise take part in the program.
The Department notes that a recipient may not rely on this
``preexisting conventional electronic documents'' exception to
circumvent its accessibility obligations by, for example, converting
all of its web content to conventional electronic document formats and
posting those documents before the date the recipient must comply with
this rule. As noted above, any documents that are currently used by
members of the public to access the recipient's programs or activities
would need to be accessible as defined under this rule, even if those
documents were posted before the date the recipient was required to
comply with the rule. And if a recipient updates a conventional
electronic document after the date the recipient must comply with this
rule, that document would no longer qualify as ``preexisting,'' and
would thus need to be made accessible as defined under this rule.
Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Web Accessibility Question 20: Where do recipients make
conventional electronic documents available to the public? Do
recipients post conventional electronic documents anywhere else on the
web besides their own websites?
Web Accessibility Question 21: Would this ``preexisting
conventional electronic documents'' exception reach content that is not
already excepted under the proposed archived web content exception? If
so, what kinds of additional content would it reach?
Web Accessibility Question 22: What would the impact of
this exception be on people with disabilities? Are there alternatives
to this exception that the Department should consider, or additional
limitations that should be placed on this exception? How would
foreseeable advances in technology affect the need for this exception?
Third-Party Web Content
Recipients' websites can include or link to many different types of
third-party content (i.e., content that is created by someone other
than the recipient). For example, many recipients' websites contain
third-party web content like maps, calendars, weather forecasts, news
feeds, scheduling tools, reservations systems, or payment systems.
Third-party web content may also be posted by members of the public on
a recipient's online message board or other sections of their website
that allow public comment. In addition to third-party content that is
posted on the recipient's own website, recipients frequently provide
links to third-party content (i.e., links on the recipient's website to
content that has been posted on another website that does not belong to
the recipient), including links to outside resources and information.
The Department has heard a variety of views regarding whether or
not recipients should be responsible for ensuring that third-party
content on their websites and linked third-party content are
accessible. Some maintain that recipients cannot be held accountable
for third-party content on their websites, and without such an
exception, recipients may have to remove the content altogether. Others
have suggested that recipients should not be responsible for third-
party content and linked content unless that content is necessary for
individuals to access recipients' programs or activities. The
Department has also previously heard the view, however, that recipients
should be responsible for third-party content because an entity's
reliance on inaccessible third-party content can prevent people with
disabilities from having equal access to the recipient's own programs
and activities. Furthermore, boundaries between web content generated
by a recipient and a third party are often difficult to discern.
At this time, the Department is proposing the following two limited
exceptions related to third-party content in Sec. 84.85(c)-(d) and is
posing questions for public comment:
Section 84.85(c): Web Content Posted by a Third Party on a Recipient's
Website
Proposed Sec. 84.85(c) provides an exception to the web
accessibility requirements of Sec. 84.84 for ``web content posted by a
third party that is available on a recipient's website.''
The Department is proposing this exception in recognition of the
fact that individuals other than a recipient's agents sometimes post
content on a recipient's website. For example, members of the public
may sometimes post on a recipient's online message boards, wikis,
social media, or other web forums, many of which are unregulated,
interactive spaces designed to promote the sharing of information and
ideas. Members of the public may post frequently, at all hours of the
day or night, and a recipient may have little or no control over the
content posted. In some cases, a recipient's website may include posts
from third parties dating back many years, which are likely of
[[Page 63434]]
limited, if any, relevance today. Because recipients often lack control
over this third-party content, it may be challenging (or impossible)
for them to make it accessible. Moreover, because this third-party
content may be outdated or unrelated to a recipient's programs and
activities, there may be only limited benefit to requiring recipients
to make this content accessible. Accordingly, the Department believes
it is appropriate to create an exception for this content from
complying with the technical standard articulated in this rule.
However, while this exception applies to web content posted by third
parties, it does not apply to the tools or platforms used to post
third-party content on a recipient's website such as message boards--
these tools and platforms are subject to the rule's technical standard.
This exception applies to, among other third-party content,
documents filed by third parties in administrative, judicial, and other
legal proceedings that are available on a recipient's website. This
example helps to illustrate why the Department believes this exception
is necessary. Many recipients have either implemented or are in the
process of developing an automated process for electronic filing of
documents in administrative, judicial, or legal proceedings in order to
improve efficiency in the collection and management of these documents.
Courts and other recipients receive high volumes of filings in these
sorts of proceedings each year. The majority of these documents are
submitted by third parties--such as a private attorney in a legal case
or other members of the public--and often include appendices, exhibits,
or other similar supplementary materials that may be difficult to make
accessible.
However, the Department notes that recipients have existing
obligations under section 504 and title II of the ADA to ensure the
accessibility of their programs and activities.\307\ Accordingly, for
example, if a person with a disability is a party to a case and
requests access to inaccessible filings submitted by a third party in a
judicial proceeding that are available on a State court's website, the
court may need to timely provide those filings in an accessible format.
Similarly, recipients may need to provide reasonable modifications to
ensure that people with disabilities have access to their programs and
activities. For example, if a hearing had been scheduled in the
proceeding referenced above, the court might need to postpone the
hearing if it did not provide the filings in an accessible format to
the requestor in sufficient time for the requestor to review the
documents before the scheduled hearing.
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\307\ 45 CFR 84.4, now appearing in 84.68, 84.52; 28 CFR 35.130,
35.160.
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Sometimes a recipient itself chooses to post content created by a
third party on its website. This exception does not apply to content
posted by the recipient itself, even if the content was originally
created by a third party. For example, many recipients post third-party
content on their websites, such as calendars, scheduling tools, maps,
reservations systems, and payment systems that were developed by an
outside technology company. To the extent a recipient chooses to rely
on third-party content on its website, it must select third-party
content that meets the requirements of Sec. 84.84.
Moreover, a recipient may not delegate away its obligations under
section 504.\308\ Accordingly, if a recipient relies on a contractor or
another third party to post content on the entity's behalf, the
recipient retains responsibility for ensuring the accessibility of that
content.
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\308\ See 45 CFR 84.4, now appearing in 84.68(b)(1) (prohibiting
discrimination directly or through a contractual, licensing, or
other arrangement that would provide an aid, benefit, or service to
a qualified individual with a disability that is not equal to that
afforded others).
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Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Web Accessibility Question 23: What types of third-party
web content can be found on websites of recipients? How would
foreseeable advances in technology affect the need for creating an
exception for this content? To what extent is this content posted by
the recipients themselves, as opposed to third parties? To what extent
do recipients delegate to third parties to post on their behalf? What
degree of control do recipients have over content posted by third
parties, and what steps can recipients take to make sure this content
is accessible?
Web Accessibility Question 24: What would the impact of
this exception be on people with disabilities?
Section 84.85(d): Third-Party Content Linked From a Recipient's Website
Proposed Sec. 84.85(d) provides that a recipient is not
responsible for the accessibility of third-party web content linked
from the recipient's website ``unless the recipient uses the third-
party web content to allow members of the public to participate in or
benefit from the recipient's programs or activities.'' Many recipients'
websites include links to other websites that contain information or
resources in the community offered by third parties that are not
affiliated with the recipient. Clicking on one of these links will take
an individual away from the recipient's website to the website of a
third party. Typically, the recipient has no control over or
responsibility for the web content or the operation of the third
party's website. Accordingly, the recipient has no obligation to make
the content on a third party's website accessible. For example, if for
purely informational or reference purposes, a university posts a series
of links to restaurants and tourist attractions in the surrounding
area, the recipient is not responsible for ensuring the websites of
those restaurants and tourist attractions are accessible.
Proposed Sec. 84.85(d) generally allows recipients to provide
relevant links to third-party web content that may be helpful without
making them responsible for the third party's web content. However,
because the Department's section 504 regulation prohibits
discrimination in the provision of any aid, benefit, or service
provided by recipients directly or through contractual, licensing, or
other arrangements, if the recipient uses the linked third-party web
content to allow members of the public to participate in or benefit
from the recipient's programs or activities, then the recipient must
ensure it links only to third-party web content that complies with the
web accessibility requirements of Sec. 84.84. This approach is
consistent with recipients' obligation to make all of their programs or
activities accessible to the public, including those they provide
through third parties.\309\ For example, a recipient that links to
online payment processing websites offered by third parties to accept
the payment of fees must ensure that the third-party web content it
links to in order for members of the public to pay for the recipient's
programs or activities complies with the web accessibility requirements
of Sec. 84.84. In other words, if a recipient links to a website for a
third-party payment service that the recipient allows the public to use
to pay fees, the recipient would be using that third-party website to
allow members of the public to participate in its program, and the
linked third-party website would
[[Page 63435]]
need to comply with this rule. Otherwise, the recipient's program would
not be equally accessible to people with disabilities. Similarly, if a
recipient links to a third-party website that processes applications
for benefits or requests to sign up to participate in classes or attend
programs the recipient offers, the recipient is using the third party's
linked web content to allow members of the public to participate in the
recipient's programs or activities, and the recipient must thus ensure
that it links to only third-party web content that complies with the
requirements of Sec. 84.84.
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\309\ See 28 CFR 35.130(b)(1); see also 45 CFR 84.4(b)(1),
redesignated as 84.68(1) (prohibiting discrimination directly or
through a contractual, licensing, or other arrangement that would
provide an aid, benefit, or service to a qualified individual with a
disability that is not equal to that afforded others).
---------------------------------------------------------------------------
The Department believes this approach strikes the appropriate
balance between acknowledging that recipients may not have the ability
to make third parties' websites accessible and recognizing that
recipients do have the ability to choose to use only third-party
content that is accessible when that content is used to allow members
of the public to participate in or benefit from the recipient's
programs or activities.
Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Web Accessibility Question 25: Do recipients link to
third-party web content to allow members of the public to participate
in or benefit from the entities' programs or activities? If so, to what
extent does the third-party web content that recipients use for that
purpose conform with WCAG 2.1 Level AA?
Web Accessibility Question 26: What would the impact of
this exception be on people with disabilities, and how would
foreseeable advances in technology affect the need for this exception?
External Mobile Apps
Many recipients use mobile apps that are developed, owned, and
operated by third parties, such as private companies, to allow the
public to access the entity's programs or activities. We will refer to
these mobile apps as ``external mobile apps.'' \310\ One example of an
external mobile app is the ``MyChart'' app, a private company's website
and app that some recipients use to allow patients to view their
medications, test results, appointments, and bills, and interact with
their health care providers.\311\
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\310\ In this document, we refer to web content that is created
by someone other than a public entity as ``third-party web
content.'' We note that we do not use ``third-party'' to describe
mobile apps here to avoid confusion. It is our understanding that
the term ``third-party mobile app'' appears to have a different
meaning in the technology industry and some understand ``a third-
party app'' as an application that is provided by a vendor other
than the manufacturer of the device or operating system provider.
See Alice Musyoka, Third-Party Apps, Webopedia (Aug. 4, 2022)
https://www.webopedia.com/definitions/third-party-apps/[https://perma.cc/SBW3-RRGN]. See Ren[eacute]e Lynn Midrack, What is a Third
Party App?, Lifewire (updated Sept. 12, 2021), https://www.lifewire.com/what-is-a-third-party-app-4154068 [https://perma.cc/F7X7-6K59].
\311\ See What You Can Do With MyChart, https://www.mychart.org/Features (last visited June 27, 2023).
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At this time, the Department is not proposing to create an
exception for recipients' use of external mobile apps (e.g., mobile
apps operated by a third party) from proposed Sec. 84.84. We expect
that recipients are using these mobile apps mostly to provide access to
the entities' programs and activities, such that excepting them would
not be appropriate.
Accordingly, the Department is seeking comment and additional
information on external mobile apps that recipients use to offer their
programs and activities. Please provide as much detail as possible and
any applicable data, suggested alternative approaches or requirements,
arguments, explanations, and examples in your responses to the
following questions.
Web Accessibility Question 27: What types of external
mobile apps, if any, do recipients use to provide access to their
programs and activities to members of the public, and how accessible
are these apps? While the Department has not proposed an exception to
the requirements proposed in Sec. 84.84 for recipients' use of
external mobile apps, should the Department propose such an exception?
If so, should this exception expire after a certain time, and how would
this exception impact persons with disabilities?
Password-Protected Class or Course Content of Educational Institutions
Proposed Sec. 84.85(e) and (f) provide exceptions for educational
institutions' password-protected class or course content where there is
no student with a disability enrolled in the class or course (or, in
the elementary and secondary school context, where there is no student
enrolled in the class or course who has a parent with a disability) who
needs the password-protected content to be made accessible.
Educational institutions, like many other recipients, use their
websites to provide a variety of programs and activities to members of
the public. Many of the programs and activities on these websites are
available to anyone. The content on these websites can include such
general information as the academic calendar, enrollment process,
admission requirements, school lunch menus, school policies and
procedures, and contact information. Under the proposed regulation, all
such programs or activities available to the public on the websites of
public educational institutions must comply with the requirements of
Sec. 84.84 unless the content is subject to a proposed exception.
In addition to the information available to the general public on
the websites of educational institutions, the websites of many schools,
colleges, and universities also make certain programs and activities
available to a discrete and targeted audience of individuals (e.g.,
students taking particular classes or courses or, in the elementary or
secondary school context, parents of students enrolled in a particular
class or course). This information is often provided using a Learning
Management System (LMS) or similar platform that can provide secure
online access and allow the exchange of educational and administrative
information in real time. LMSs allow educational institutions and their
faculty and staff to exchange and share information with students and
parents about courses and students' progress. For example, faculty and
staff can create and collect assignments, post grades, provide real-
time feedback, and share subject-specific media, documents, and other
resources to supplement and enrich the curriculum. Parents can track
their children's attendance, assignments, grades, and upcoming class
events. To access the information available on these platforms,
students (and parents in the elementary and secondary school context)
generally must obtain a password, login credentials, or some equivalent
from the educational institution. The discrete population that has
access to this content may not always include a person with a
disability. For example, a student who is blind may not have enrolled
in a psychology course, or a parent who is deaf may not have a child
enrolled in a particular ninth-grade world history class.
The Department's regulatory proposal would require that the LMS
platforms that recipient elementary and secondary schools, colleges,
and universities use comply with Sec. 84.84. However, subject to
limitations, the Department is proposing an exception for password-
protected class or course content. Thus, while the LMS platform would
need to be accessible, class or course content (such as syllabi and
assigned readings) posted on the password-protected LMS
[[Page 63436]]
platform would not need to be, except in specified circumstances.
Specifically, the content available on password-protected websites for
specific classes or courses would generally be excepted from the
requirements of proposed Sec. 84.84 unless a student is enrolled in
that particular class or course and the student (or the parent \312\ in
the elementary and secondary school context) would be unable, because
of a disability, to access the content posted on the password-protected
website for that class or course. Thus, once a student with a
disability (or a student in an elementary or secondary school with a
parent with a disability) is enrolled in a particular class or course,
the content available on the password-protected website for the
specific class or course would need to be made accessible in accordance
with certain compliance dates discussed below. This may include
scenarios in which a student with a disability (or, in the elementary
and secondary school context, a student whose parent has a disability)
preregisters, enrolls, or transfers into a class or course or acquires
a disability during the term, or when a school otherwise identifies a
student in a class or course (or their parent in the elementary and
secondary school context) as having a disability. The educational
institution would generally be required to make the course content for
that class or course fully compliant with all WCAG 2.1 Level AA success
criteria, not merely the criteria related to that student or parent's
disability. This will ensure that course content becomes more
accessible to all students over time. In addition, the Department
expects that it will be more straightforward and cost-effective for
recipients to comply with WCAG 2.1 Level AA as a whole, rather than
attempting to identify and isolate the WCAG 2.1 success criteria that
relate to a specific student, and then repeating that process for a
subsequent student with a different disability.
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\312\ The Department notes that the term ``parent'' as used
throughout proposed Sec. 84.85(f) is intended to include
biological, adoptive, step-, or foster parents, legal guardians, or
other individuals recognized under Federal and state law as having
parental rights.
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The Department proposes this exception for class and course content
based on its understanding that it would be burdensome to require
educational institutions to make all of the documents, videos, and
other content that many instructors upload and assign via LMS websites
accessible. For instance, instructors may scan hard-copy documents and
then upload them to LMS sites as conventional electronic documents. In
some instances, these documents comprise multiple chapters from books
and may be hundreds of pages long. Similarly, instructors may upload
videos or other multimedia content for students to review. The
Department believes that making all of this content accessible when
students with disabilities (or their parents in the elementary and
secondary context) are not enrolled in the course may be onerous for
educational institutions, but the Department also understands that it
is critical for students and parents with disabilities to have access
to needed course content.
The Department believes its proposal provides a balanced approach
by ensuring access to students with disabilities (or, in primary and
secondary education settings, parents with disabilities) enrolled in
the educational institution, while recognizing that there are large
amounts of class or course content that may not immediately need to be
accessed by individuals with disabilities because they have not
enrolled in a particular class or course.
By way of analogy and as an example, under the Department's
existing section 504 regulations, educational institutions are not
required to proactively provide accessible course handouts to all
students in a course, but they are required to do so for a student with
a disability who needs them to access the course content. The
Department envisions the requirements proposed here as an online
analogue: while educational institutions are not required to
proactively make all password-protected course handouts accessible, for
example, once an institution knows that a student with a disability is
enrolled in a course and, accordingly, needs the content to be made
accessible, the institution must do so. The institution must also
comply with its obligations to provide accessible course content under
all other applicable laws, including the IDEA.
The Department appreciates that some educational institutions may
find it preferable or more effective to make all class or course
content accessible from the outset without waiting for a student with a
disability (or, in the elementary and secondary school context, a
student with a parent with a disability) to enroll in a particular
class or course, and nothing in this rule would prevent educational
institutions from taking that approach. Even if educational
institutions do not take this approach, the Department expects that
those institutions will likely need to take steps in advance so that
they are prepared to make all class or course content for a particular
course accessible within the required time frames discussed below when
there is an enrolled student with a disability (or, in the elementary
and secondary school context, an enrolled student with a parent with a
disability) who needs access to that content.
Because the nature, operation, and structure of elementary and
secondary schools are different from those of public colleges and
universities, the proposed regulation sets forth separate requirements
for the two types of institutions.
Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following question.
Web Accessibility Question 28: Are there particular issues
relating to the accessibility of digital books and textbooks that the
Department should consider in finalizing this rule? Are there
particular issues that the Department should consider regarding the
impact of this rule on libraries?
Postsecondary Institutions: Password-Protected Web Content
In proposed Sec. 84.85(e), the Department is considering an
exception to the requirements proposed in Sec. 84.84 for public
postsecondary institutions, subject to two limitations. This exception
would provide that ``course content available on a recipient's
password-protected or otherwise secured website for admitted students
enrolled in a specific course offered by a public postsecondary
institution'' would not need to comply with the web accessibility
requirements of Sec. 84.84 unless one of the two limitations described
below applies. As used in this context, ``admitted students'' refers to
students who have applied to, been accepted by, and are enrolled in a
particular educational institution. These students include both
matriculated students (i.e., students seeking a degree) and non-
matriculated students (i.e., continuing education students or non-
degree-seeking students). As noted above, this exception applies only
to password-protected or otherwise secured content. Content may be
otherwise secured if it requires some process of authentication or
login to access the content.
The exception is not intended to apply to password-protected
content for classes or courses that are made available to the general
public, or a subset thereof, without enrolling at a particular
educational institution. Such classes or courses generally only require
[[Page 63437]]
limited, if any, registration to participate. These types of classes or
courses may sometimes be referred to as Massive Open Online Courses
(MOOCs). Because access to the content on these password-protected
websites is not limited to a discrete student population within an
educational institution, but is instead widely available to the general
public--sometimes without limits as to enrollment--any individual,
including one with a disability, may enroll or participate at almost
any time. Under these circumstances, the recipient must make such class
or course content accessible from the outset of the class or course
regardless of whether a student with a disability is known to be
participating. The Department is interested in the public's feedback on
this exception, and in particular the impact it may have on recipients'
continued use of MOOCs.
The phrase ``enrolled in a specific course'' as used in Sec.
84.85(f) limits the exception to password-protected web content for a
particular course, at a particular time, during a particular term. For
example, if a university offers a 20th Century Irish Literature course
at 10 a.m. that meets on Mondays, Wednesdays, and Fridays for the fall
semester of the 2029-2030 academic year, the exception would apply to
the password-protected web content for that course, subject to the
limitations discussed below.
The proposed exception in Sec. 84.85(e) would not apply to non-
course content on the recipient's password-protected website that is
generally available to all admitted students. For example, content
available on the recipient's password-protected website that is
available to all admitted students, such as forms for registering for
class, applications for meal plans or housing, academic calendars, and
announcements generally made available to all students enrolled in the
postsecondary institution would all be required to comply with Sec.
84.84. In addition, if a postsecondary institution makes course content
for specific courses available to all admitted students on a password-
protected website, regardless of whether students had enrolled in that
specific course, the exception would not apply, even if such content
was only made available for a limited time, such as within a set time
frame for course shopping.
Sections 84.85(e)(1)-(2): Limitations to the Exception for Password-
Protected Web Content for Specific Courses
As noted previously, there are two important limitations to the
general exception for course content on password-protected websites of
postsecondary institutions in proposed Sec. 84.85(e); both limitations
apply to situations in which an admitted student with a disability is
enrolled in a particular course at a postsecondary institution and the
student, because of a disability, would be unable to access the content
on the password-protected website for the specific course. The phrase
``the student, because of a disability, would be unable to access'' is
meant to make clear that these limitations are not triggered merely by
the enrollment of a student with a disability, but instead they are
triggered by the enrollment of a student whose disability would make
them unable to access the content on the password-protected course
website. These limitations would also be triggered by the development
or identification of such a disability while a student is enrolled, or
the realization that a student's disability makes them unable to access
the course content during the time that they are enrolled. The phrase
``unable to access'' does not necessarily mean a student has no access
at all. Instead, the phrase ``unable to access'' is intended to cover
situations in which a student's disability would limit or prevent their
ability to equally access the relevant content.
The provisions set forth in the limitations to the exception are
consistent with longstanding obligations of recipients under section
504 and title II of the ADA. Recipients are already required to make
appropriate reasonable modifications and ensure effective
communication, including by providing the necessary auxiliary aids and
services to students with disabilities. It is the educational
institution, not the student, that is responsible for ensuring that it
is meeting these obligations. Such institutions, therefore, should be
proactive in addressing the access needs of admitted students with
disabilities, including those who would be unable to access
inaccessible course content on the web. This also means that when an
institution knows that a student with a disability is unable to access
inaccessible content, the institution should not expect or require that
the student first attempt to access the information and be unable to do
so before the institution's obligation to make the content accessible
arises.
Correspondingly, when an institution has notice that such a student
is enrolled in a course, all of the content available on the password-
protected website for that course must be made accessible in compliance
with the accessibility requirements of proposed Sec. 84.84. The
difference between the two limitations to the exception to Sec.
84.85(e) is the date that triggers compliance. The triggering event is
based on when the institution knew, or should have known, that such a
student with a disability would be enrolled in a specific course and
would be unable to access the content available on the password-
protected website.
The application of the limitation in proposed Sec. 84.85(e)(1) and
(2), discussed in detail below, is contingent upon the institution
having notice both that a student with a disability is enrolled in a
specific course and that the student cannot access the course content
because of their disability. Once an institution is on notice that a
student with a disability is enrolled in a specific course and that the
student's disability would render the student unable to access the
content available on the password-protected website for the specific
course, the password-protected web content for that course must be made
accessible within the time frames set forth in proposed Sec.
84.85(e)(1) and (2), which are described in greater detail below.
The first proposed limitation to the exception for postsecondary
institutions, proposed Sec. 84.85(e)(1), would require that ``if a
recipient is on notice that an admitted student with a disability is
pre-registered in a specific course offered by a postsecondary
institution and that the student, because of a disability, would be
unable to access the content available on the recipient's password-
protected or otherwise secured website for the specific course,'' then
``all content available on the recipient's password-protected or
otherwise secured website for the specific course must comply with the
requirements of Sec. 84.84 by the date the academic term begins for
that course offering. New content added throughout the term for the
course must also comply with the requirements of Sec. 84.84 at the
time it is added to the website.'' Students may register for classes
and make accessibility requests ahead of the start of the term--often
during the previous term. The institution therefore knows, or should
know, that a student with a disability has registered for a particular
course or notified the school that content must be made accessible for
a particular course. This provision would ensure that students with
disabilities have timely access to and equal opportunity to benefit
from content available on a password-protected website for their
particular courses.
The second proposed limitation to the exception for postsecondary
institutions, Sec. 84.85(e)(2), applies to
[[Page 63438]]
situations in which ``a recipient is on notice that an admitted student
with a disability is enrolled in a specific course offered by a
postsecondary institution after the start of the academic term, and the
student, because of a disability, would be unable to access the content
available on the recipient's password-protected or otherwise secured
website for the specific course.'' In this instance, unlike Sec.
84.85(e)(1), the postsecondary institution is not on notice until after
the start of the academic term that a student is enrolled in a
particular course and that the student, because of a disability, would
be unable to access the content on the password-protected course
website. In such circumstances, all content available on the
recipient's password-protected website for the specific course must
comply with the requirements of Sec. 84.84 within five business days
of such notice. This second limitation would apply to situations in
which students have not pre-registered in a class, such as when
students enroll in a class during the add/drop period, or where
waitlisted or transfer students enroll in a class at the start of, or
during, the academic term. This second limitation to the exception for
postsecondary institutions would also apply to situations in which the
institution was not on notice that the enrolled student had a
disability and would be unable to access online course content until
after the academic term began--because, for example, the student newly
enrolled at the institution or was recently diagnosed with a
disability.
In proposing the five-day remediation requirement in this
limitation, the Department is attempting to strike the appropriate
balance between providing postsecondary institutions with a reasonable
opportunity to make the content on the password-protected or otherwise
secured website accessible and providing individuals with disabilities
full and timely access to this information that has been made available
to all other students in the course. The Department believes five days
provides a reasonable opportunity to make the relevant content
accessible in most cases, subject to the general limitations under
proposed Sec. 84.88. However, the Department is interested in the
public's feedback and data on whether this remediation requirement
provides a reasonable opportunity to make the relevant content
accessible, and whether a shorter or longer period would be more
appropriate in most cases.
If, for example, a college offers a specific fall semester course,
a student with a disability pre-registers for it and, because of
disability, that student would be unable to access the content
available on the password-protected website for that course, all
content available on the institution's password-protected website for
that specific course must comply with the requirements of Sec. 84.84
by the date the academic semester begins for the fall semester
(according to the first limitation). If, instead, that same student
does not enroll in that particular course until two days after the
start of the fall semester, all content available on the institution's
password-protected or otherwise secured website for that specific
course must comply with the requirements of Sec. 84.84 within five
business days of notice that a student with a disability is enrolled in
that particular course and, because of disability, would be unable to
access the content (according to the second limitation).
The exception applies to course content such as conventional
electronic documents, multimedia content, or other course material
``available'' on a recipient's password-protected or otherwise secured
website. As such, the two limitations apply when that content is made
``available'' to students with disabilities enrolled in a specific
course who are unable to access course content. Although a professor
may load all of their course content on the password-protected website
at one time, they may also stagger the release of particular content to
their students at various points in time during the term. It is when
this content is made available to students that it must be made
accessible in compliance with proposed Sec. 84.84.
The two limitations to the exception for password-protected course
content state that the limitations apply whenever ``the student,
because of a disability, would be unable to access the content
available on the recipient's password-protected website for the
specific course.'' Pursuant to longstanding obligations of recipients
under section 504, the postsecondary institution must continue to take
other steps necessary to timely make inaccessible course content
accessible to an admitted student with a disability during the five-day
period proposed in the second limitation, unless doing so would result
in a fundamental alteration or undue financial and administrative
burdens. This could include timely providing alternative formats, a
reader, or a notetaker for the student with a disability, or providing
other auxiliary aids and services that enable the student with a
disability to participate in and benefit from the programs and
activities of the recipient while the recipient is making the course
content on the password-protected website accessible.
Once the obligation is triggered to make password-protected web
content accessible for a specific course, the obligation is ongoing for
the duration of the course (i.e., the obligation is not limited to
course content available at the beginning of the term). Rather, all web
content newly added throughout the remainder of the student's
enrollment in the course must also be accessible at the time it is made
available to students. Furthermore, once a postsecondary institution
makes conventional electronic documents, multimedia content, or other
course material accessible in accordance with the requirements of Sec.
84.85(e)(1) or (2), the institution must maintain the accessibility of
that specific content as long as that content is available to students
on the password-protected course website, in compliance with the
general accessibility requirement set forth in proposed Sec. 84.84.
However, new content added later, when there is no longer a student
with a disability who is unable to access inaccessible web content
enrolled in that specific course, would not need to be made accessible
because that course-specific web content would once again be subject to
the exception, unless and until another student with a disability is
enrolled in that course.
With regard to third-party content linked to from a password-
protected or otherwise secured website for a specific course, the
exception and limitations set forth in proposed Sec. 84.85(d) apply to
this content, even when a limitation under proposed Sec. 84.85(e)(1)
or (2) has been triggered requiring all the content available to
students on a password-protected website for a specific course to be
accessible. Accordingly, third-party web content to which a recipient
provides links for informational or resource purposes is not required
to be accessible; however, if the postsecondary institution uses the
third-party web content to allow members of the public to participate
in or benefit from the institution's programs or activities, then the
postsecondary institution must ensure it links to third-party web
content that complies with the web accessibility requirements of Sec.
84.84. For example, if a postsecondary institution requires students to
use a third-party website it links to on its password-protected course
website to complete coursework, then the third-party web content must
be accessible.
The Department believes that this approach strikes a proper balance
of providing necessary and timely access to course content, while not
imposing
[[Page 63439]]
burdens where web content is currently only utilized by a population of
students without relevant disabilities, but it welcomes public feedback
on whether alternative approaches might strike a more appropriate
balance.
Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Web Accessibility Question 29: How difficult would it be
for postsecondary institutions to comply with this rule in the absence
of this exception?
Web Accessibility Question 30: What would the impact of
this exception be on people with disabilities?
Web Accessibility Question 31: How do postsecondary
institutions communicate general information and course-specific
information to their students?
Web Accessibility Question 32: Do postsecondary
institutions commonly provide parents access to password-protected
course content?
Web Accessibility Question 33: The proposed exception and
its limitations are confined to content on a password-protected or
otherwise secured website for students enrolled in a specific course.
Do postsecondary institutions combine and make available content for
particular groups of students (e.g., newly admitted students or
graduating seniors) using a single password-protected website and, if
so, should such content be included in the exception?
Web Accessibility Question 34: On average, how much
content and what type of content do password-protected course websites
of postsecondary institutions contain? Is there content posted by
students or parents? Should content posted by students or parents be
required to be accessible and, if so, how long would it take a
postsecondary institution to make it accessible?
Web Accessibility Question 35: How long would it take to
make course content available on a recipient's password-protected or
otherwise secured website for a particular course accessible, and does
this vary based on the type of course? Do students need access to
course content before the first day of class? How much delay in
accessing online course content can a student reasonably overcome in
order to have an equal opportunity to succeed in a course, and does the
answer change depending on the point in the academic term that the
delay occurs?
Web Accessibility Question 36: To what extent do
educational institutions use or offer students mobile apps to enable
access to password protected course content? Should the Department
apply the same exceptions and limitations to the exceptions under
proposed Sec. 84.85(e) and (e)(1)-(2), respectively, to mobile apps?
Web Accessibility Question 37: Should the Department
consider an alternative approach, such as requiring that all newly
posted course content be made accessible on an expedited time frame,
while adopting a later compliance date for remediating existing
content?
Elementary and Secondary Schools: Password-Protected Web Content
In proposed Sec. 84.85(f), the Department is considering an
exception to the requirements proposed in Sec. 84.84 for elementary
and secondary schools that would provide, subject to four limitations,
that ``class- or course content available on a recipient's password-
protected or otherwise secured website for students enrolled, or
parents of students enrolled, in a specific class or course at an
elementary or secondary school'' would not need to comply with the web
accessibility requirements of Sec. 84.84.
Because parents of students in elementary and secondary schools
have greater rights, roles, and responsibilities with regard to their
children and their children's education than in the postsecondary
education setting, and because these parents typically interact with
such schools much more often and in much greater depth and detail,
parents are expressly included in both the general exception for
password-protected web content in Sec. 84.85(f) and its
limitations.\313\ Parents use password-protected websites to access
progress reports and grades, track homework and long-term project
assignments, and interact regularly with their children's teachers and
administrators.
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\313\ The Department notes that the term ``parent'' as used
throughout Sec. 84.85(f) is intended to include biological,
adoptive, step, or foster parents; legal guardians; or other
individuals recognized under Federal or State law as having parental
rights.
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Proposed exception Sec. 84.85(f) provides that ``class or course
content available on a recipient's password-protected or otherwise
secured website for students enrolled, or parents of students enrolled,
in a specific class or course offered by an elementary or secondary
school'' does not need to comply with the accessibility requirements of
Sec. 84.84 unless and until a student is enrolled in that particular
class or course and either the student or the parent would be unable,
because of a disability, to access the content available on the
password-protected website. As used in this context, ``enrolled . . .
in a specific class or course'' limits the exception to password-
protected class or course content for a particular class or course
during a particular academic term. For example, content on a password-
protected website for students, and parents of students, in a specific
fifth-grade class would not need to be made accessible unless a student
enrolled, or the parent of a student enrolled, in the class that term
would be unable, because of a disability, to access the content on the
password-protected website.
The proposed exception in Sec. 84.85(f) is not intended to apply
to password-protected content that is available to all students or
their parents in an elementary or secondary school. Content on
password-protected websites that is not limited to students enrolled,
or parents of students enrolled, in a specific class or course, but
instead is available to all students or their parents at the elementary
or secondary school is not subject to the exception. For example, a
school calendar available on a password-protected website to which all
students or parents at a particular elementary school are given a
password would not be subject to the exception for password-protected
web content for a specific class or course. It would, therefore, need
to comply with the requirements of proposed Sec. 84.84.
Section 84.85(f)(1)-(4): Limitations to the Exception for Password-
Protected Class or Course Content
There are four critical limitations to the general exception in
Sec. 84.85(f) for elementary and secondary schools' class or course
content. These limitations are identical to those discussed above in
the postsecondary context, except that they arise not only when a
school is on notice that a student with a disability is enrolled in a
particular class or course and cannot access content on the class or
course's password-protected website because of their disability, but
also when the same situation arises for a parent with a disability. The
discussion above of the limitations in the postsecondary context
applies with equal force here. A shorter discussion of the limitations
in the elementary and secondary context follows. However, the
Department acknowledges that there are existing legal frameworks
specific to the public elementary and secondary education context which
are described further in this section.
The first limitation, in proposed Sec. 84.85(f)(1), addresses
situations in which the recipient is on notice before the beginning of
the academic term that
[[Page 63440]]
a student with a disability is pre-registered in a specific class or
course offered by an elementary or secondary school, and the student,
because of a disability, would be unable to access the content
available on the recipient's password-protected or otherwise secured
website for the specific class or course. In such circumstances, all
content available on the recipient's password-protected website for the
specific class or course must comply with the requirements of Sec.
84.84 by the date the term begins for that class or course. New content
added throughout the term for the class or course must also comply with
the requirements of proposed Sec. 84.84 at the time it is added to the
website.
Similarly, the second limitation, proposed Sec. 84.85(f)(2),
addresses situations in which the pre-registered student's parent has a
disability. Section 84.85(f)(2) applies when the recipient is on notice
that a student is pre-registered in an elementary or secondary school's
class or course, and that the student's parent needs the content to be
accessible because of a disability that inhibits access to the content
available on the password-protected website for the specific class or
course. In such circumstances, all content available on the recipient's
password-protected website for the specific class or course must comply
with the requirements of Sec. 84.84 by the date the school term begins
for that class or course. New content added throughout the term for the
class or course must also comply with the requirements of proposed
Sec. 84.84 at the time it is added to the website.
The third and fourth limitations to the exception for class or
course content on password-protected websites for particular classes or
courses at elementary and secondary schools are similar to the first
and second limitations, but have different triggering events. These
limitations apply to situations in which a student is enrolled in an
elementary or secondary school's class or course after the term begins,
or when a school is otherwise not on notice until after the term begins
that there is a student or parent with a disability who is unable to
access class or course content because of their disability. The third
limitation, in proposed Sec. 84.85(f)(3) would apply once a recipient
is on notice that ``a student with a disability is enrolled in an
elementary or secondary school's class or course after the term begins,
and the student, because of a disability, would be unable to access the
content available on the recipient's password-protected or otherwise
secured website for the specific class or course.'' In such
circumstances, all content available on the recipient's password-
protected or otherwise secured website for the specific class or course
must comply with the requirements of Sec. 84.84 within five business
days of such notice. New content added throughout the term for the
class or course must also comply with the requirements of proposed
Sec. 84.84 at the time it is added to the website.
Proposed Sec. 84.85(f)(4), the fourth limitation, applies the same
triggering event as in Sec. 84.85(f)(3) to situations in which the
student's parent has a disability. Proposed Sec. 84.85(f)(4) would
apply once a recipient is on notice that a student is enrolled in an
elementary or secondary school's class or course after the term begins,
and that the student's parent needs the content to be accessible
because of a disability that would inhibit access to the content
available on the recipient's password-protected website for the
specific class or course. In such circumstances, all content available
on the recipient's password-protected or otherwise secured website for
the specific class or course must comply with the requirements of Sec.
84.84 within five business days of such notice. New content added
throughout the term for the class or course must also comply with the
requirements of proposed Sec. 84.84 at the time it is added to the
website.
The procedures for enrollment in the elementary or secondary school
context likely vary from the postsecondary context. Unlike in
postsecondary institutions, elementary and secondary schools generally
have more autonomy and authority regarding student placement in a
particular class or course. The student or parent generally does not
control placement in a particular class or course. To the extent a
parent or student has such autonomy or authority, the application of
the limitations in Sec. 84.85(f)(1) through (4) is contingent on
whether the elementary or secondary school knows, or should know, that
a student with a disability is enrolled, or a parent with a disability
has a child enrolled, in a particular class or course, and that the
student or parent would be unable to access the class or course content
because of their disability.
Regardless of what process a school follows for notification of
enrollment, accessibility obligations for password-protected class or
course content come into effect once a school is on notice that
materials need to be made accessible under these provisions. For
example, some schools that allow students to self-select the class or
course in which they enroll may require students with disabilities to
notify their guidance counselor or the special education coordinator
each time they have enrolled in a class or course. With respect to
parents, some schools may have a form that parents fill out as part of
the process for enrolling a student in a school, or in a particular
class or course in that school, indicating that they (the parent) are
an individual with a disability who, because of their disability, needs
auxiliary aids or services. Other schools may publicize the schools'
responsibility to make class or course content accessible to parents
with disabilities and explain the process for informing the school that
they cannot access inaccessible websites. Under this rule, regardless
of the process a school follows, once the elementary or secondary
school is on notice, the password-protected class or course content for
that class or course must be made accessible within the time frames set
forth in Sec. 84.85(f)(1) through (4). We note that section 504 would
prohibit limiting assignment of students with disabilities only to
classes for which the content has already been made accessible.\314\
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\314\ See 45 CFR 84.4, now appearing in 84.68.
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The Department emphasizes that in the public elementary and
secondary school context a variety of Federal laws include robust
protections for students with disabilities, and this rule is intended
to build on, but not to supplant those protections for students with
disabilities. Public schools that receive Federal financial assistance
already must ensure they comply with obligations under other statutes
such as the IDEA and section 504 of the Rehabilitation Act, including
the Department of Education's regulations implementing those statutes.
The IDEA and section 504 already include affirmative obligations that
covered schools work to identify children with disabilities, regardless
of whether the schools receive notice from a parent that a student has
a disability, and provide a Free Appropriate Public Education
(FAPE).\315\ The Department acknowledges that educational entities
likely already employ procedures under those frameworks to identify
children with disabilities and assess their educational needs. Under
the IDEA and section 504, schools have obligations to identify students
with the relevant disabilities that would trigger the limitations in
proposed Sec. 84.85(f)(1) through (4). The proposed rule would add to
and would not supplant the
[[Page 63441]]
already robust framework for identifying children with disabilities and
making materials accessible. The language used in the educational
exceptions and their limitations is not intended to replace or conflict
with those existing procedures. In other words, regardless of the means
by which schools identify students with the relevant disabilities here,
including procedures developed to comply with the IDEA and section 504
regulations, once a school is on notice that either the student or the
parent has a disability and requires access because of that disability,
the limitation is triggered. Further, schools should not alter their
existing practices to wait for notice because of this rule--this rule
does not modify existing requirements that schools must follow under
other statutes such as the IDEA.
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\315\ See 20 U.S.C. 1412; 34 CFR 104.32-104.33.
---------------------------------------------------------------------------
Federal and state laws may have a process for students who are
newly enrolled in a school and those who are returning to have their
educational program or plan reviewed and revised annually. This
generally would include a determination of the special education,
related services, supplementary aids and services, program
modifications, and supports from school personnel that the student
needs. However, once the school is on notice that the student has a
disability and requires access because of the disability, those
processes and procedures cannot be used to delay or avoid compliance
with the time frames set forth in Sec. 84.85(f)(1) through (4). For
example, if a school knows that a student who is blind is enrolled at
the school for the first time over the summer, the school is then on
notice that, in accordance with Sec. 84.85(f)(1), the content on the
school's password-protected website for the class to which the school
assigns the student must be accessible in compliance with the
requirements of Sec. 84.84 by the date the term begins, regardless of
the time frames for evaluation or the review or development of an
Individualized Education Program or section 504 plan.
As in the postsecondary context, the Department believes that these
exceptions and limitations strike a proper balance of providing
necessary and timely access to class or course content, while not
imposing burdens where class or course content is currently only
utilized by a population of students and parents without relevant
disabilities, but it welcomes public feedback on whether alternative
approaches might strike a more appropriate balance.
Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Web Accessibility Question 38: How difficult would it be
for elementary and secondary schools to comply with this rule in the
absence of this exception?
Web Accessibility Question 39: What would the impact of
this exception be on people with disabilities?
Web Accessibility Question 40: How do elementary and
secondary schools communicate general information and class- or course-
specific information to students and parents?
Web Accessibility Question 41: The proposed exception and
its limitations are confined to content on a password-protected or
otherwise secured website for students enrolled, or parents of students
enrolled, in a specific class or course. Do elementary or secondary
schools combine and make available content for all students in a
particular grade or certain classes (e.g., all 10th graders in a school
taking chemistry in the same semester) using a single password-
protected website and, if so, should such content be included in the
exception?
Web Accessibility Question 42: Do elementary and secondary
schools have a system allowing a parent with a disability to provide
notice of their need for accessible course content?
Web Accessibility Question 43: On average, how much
content and what type of content do password-protected course websites
of elementary or secondary schools contain? Is there content posted by
students or parents? Should content posted by students or parents be
required to be accessible and, if so, how long would it take an
elementary or secondary school to make it accessible?
Web Accessibility Question 44: How long would it take to
make class- or course content available on a recipient's password-
protected or otherwise secured website for the particular class or
course accessible, and does this vary based on the type of course? Do
parents and students need access to class or course content before the
first day of class? How much delay in accessing online course content
can a student reasonably overcome in order to have an equal opportunity
to succeed in a course, and does the answer change depending on the
point in the academic term that the delay occurs?
Web Accessibility Question 45: To what extent do
elementary or secondary schools use or offer students or parents mobile
apps to enable access to password-protected course content? Should the
Department apply the same exceptions and limitations to the exceptions
under Sec. 84.85(f) and (f)(1)-(4), respectively, to mobile apps?
Web Accessibility Question 46: Should the Department
consider an alternative approach, such as requiring that all newly
posted course content be made accessible on an expedited time frame,
while adopting a later compliance date for remediating existing
content?
Individualized, Password-Protected Documents
In proposed Sec. 84.85(g), the Department is considering an
exception to the accessibility requirements of Sec. 84.84 for web-
based ``conventional electronic documents that are: (1) about a
specific individual, their property, or their account; and (2)
password-protected or otherwise secured.''
Many recipients use the web to provide access to digital versions
of documents for their customers, constituents, and other members of
the public. For example, many hospitals offer a virtual platform where
health care providers can send digital versions of test results and
scanned documents to their patients. The Department anticipates that a
recipient could have many such documents. The Department also
anticipates that making conventional electronic documents accessible in
this context may be difficult for recipients, and that in many
instances, the individuals who are entitled to view a particular
individualized document will not need an accessible version. However,
some recipients might be able to make some types of documents
accessible relatively easily after they make the template they use to
generate these individualized documents accessible. To help better
understand whether these assumptions are accurate, the Department asks
questions for public comment below about what kinds of individualized,
conventional electronic documents recipients make available, how
recipients make these documents available to individuals, and what
experiences individuals have had in accessing these documents.
This proposed exception is expected to reduce the burdens on
recipients. The Department expects that making such documents
accessible for every individual, regardless of whether they need such
access, could be too burdensome and would not deliver the same benefit
to the public as a whole as if the recipient were to focus on making
other types of web content accessible. The Department expects that it
would generally be more impactful for recipients to focus resources on
making documents accessible for those
[[Page 63442]]
individuals who actually need the documents to be accessible. It is the
Department's understanding that making conventional electronic
documents accessible is generally a more time and resource intensive
process than making other types of web content accessible. As discussed
below, recipients must still provide accessible versions of
individualized, password-protected conventional electronic documents in
a timely manner when those documents pertain to individuals with
disabilities. This approach is consistent with the broader section 504
regulatory framework. For example, hospitals are not required to
provide accessible bills to all customers. Instead, hospitals need only
provide accessible bills to those customers who need them because of a
disability.
This exception is limited to ``conventional electronic documents''
as defined in Sec. 84.10. This exception would, therefore, not apply
in a case where a recipient makes individualized information available
in formats other than a conventional electronic document. For example,
if a hospital makes individualized bills available on a password-
protected web platform as HTML content (rather than a PDF), that
content would not be subject to this exception. Such bills, therefore,
would need to be made accessible in accordance with proposed Sec.
84.84. On the other hand, if a recipient makes individualized bills
available on a password-protected web platform in PDF form, that
content would be excepted from the accessibility requirements of Sec.
84.84, subject to the limitation discussed in further detail below.
This exception also only applies when the content is individualized
for a specific person or their property or account. Examples of
individualized documents include medical records or notes about a
specific patient or receipts for purchases. Content that is broadly
applicable or otherwise for the general public (i.e., not
individualized) is not subject to this exception. For instance, a PDF
notice that explains an upcoming rate increase for all utility
customers and is not addressed to a specific customer would not be
subject to this exception. Such a general notice would not be subject
to this exception even if it were attached to or sent with an
individualized letter, like a bill, that is addressed to a specific
customer.
Finally, this exception applies only to password-protected or
otherwise secured content. Content may be otherwise secured if it
requires some process of authentication or login to access the content.
Unless subject to another exception, conventional electronic documents
that are on a recipient's general, public web platform would not be
excepted.
This proposed exception for individualized, password-protected
conventional electronic documents has certain limitations. While the
exception is meant to alleviate the burden on recipients of making all
individualized, password-protected or otherwise secured conventional
electronic documents generally accessible, people with disabilities
must still be able to access information from documents that pertain to
them. An accessible version of these documents must be provided in a
timely manner.\316\ A recipient might also need to make reasonable
modifications to ensure that a person with a disability has equal
access to its programs or activities.\317\ For example, if a person
with a disability requests access to an inaccessible bill from a county
hospital, the hospital may need to extend the payment deadline and
waive any late fees if the hospital does not provide the bill in an
accessible format in sufficient time for the person to review the bill
before payment is due.
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\316\ See proposed 45 CFR 84.77(b)(2); 28 CFR 35.160(b)(2).
\317\ See proposed 45 CFR 84.68(b)(7).
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As in other situations involving a recipient's effective
communication obligations--for example, when providing an American Sign
Language interpreter--this exception and its accompanying limitation
would also apply to the companion of the person receiving the
recipient's services in appropriate circumstances.\318\
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\318\ See proposed 45 CFR 84.77; ADA Requirements: Effective
Communication, U.S. Dep't of Just. (updated Feb. 28, 2020), https://www.ada.gov/effective-comm.htm [https://perma.cc/W9YR-VPBP].
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Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Web Accessibility Question 47: What kinds of
individualized, conventional electronic documents do recipients make
available and how are they made available (e.g., on websites or mobile
apps)? How difficult would it be to make such documents accessible? How
do people with disabilities currently access such documents?
Web Accessibility Question 48: Do recipients have an
adequate system for receiving notification that an individual with a
disability requires access to an individualized, password-protected
conventional electronic document? What kinds of burdens do these
notification systems place on individuals with disabilities and how
easy are these systems to access? Should the Department consider
requiring a particular system for notification or a particular process
or timeline that recipients must follow when they are on notice that an
individual with a disability requires access to such a document?
Web Accessibility Question 49: What would the impact of
this exception be on people with disabilities?
Web Accessibility Question 50: Which provisions of this
rule, including any exceptions (e.g., individualized, password-
protected conventional electronic documents; content posted by a third
party), should apply to mobile apps?
Sec. 84.86 Conforming Alternate Versions
Generally, to meet the WCAG 2.1 standard, a web page must satisfy
one of the defined levels of conformance--in the case of this proposed
rule, Level AA.\319\ However, WCAG 2.1 allows for the creation of a
``conforming alternate version,'' a separate web page that is
accessible, up-to-date, contains the same information and functionality
as the inaccessible web page, and can be reached via a conforming page
or an accessibility-supported mechanism.\320\ The ostensible purpose of
a ``conforming alternate version'' is to provide individuals with
relevant disabilities access to the information and functionality
provided to individuals without relevant disabilities, albeit via a
separate vehicle.
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\319\ See W3C[supreg], Web Content Accessibility Guidelines 2.1
(June 5, 2018), https://www.w3.org/TR/WCAG21/#cc1 [https://perma.cc/ZL6N-VQX4].
\320\ See W3C[supreg], Web Content Accessibility Guidelines 2.1,
Conforming Alternate Version (June 5, 2018), https://www.w3.org/TR/WCAG21/#dfn-conforming-alternate-version [https://perma.cc/5NJ6-UZPV].
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Having direct access to an accessible web page provides the best
user experience for many individuals with disabilities, and it may be
difficult for recipients to reliably maintain conforming alternate
versions, which must be kept up-to-date. Accordingly, the W3C[supreg]
explains that providing a conforming alternate version of a web page is
intended to be a ``fallback option for conformance to WCAG and the
preferred method of conformance is to make all content directly
accessible.'' \321\ However, WCAG 2.1 does not explicitly limit the
circumstances under which a recipient may choose to create a conforming
alternate version of a web
[[Page 63443]]
page instead of making the web page directly accessible.
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\321\ See W3C[supreg], Understanding WCAG 2.0 (Oct. 7, 2016),
https://www.w3.org/TR/UNDERSTANDING-WCAG20/conformance.html#uc-conforming-alt-versions-head [https://perma.cc/DV5L-RJUG].
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The Department is concerned that WCAG 2.1 can be interpreted to
permit the development of two separate websites--one for individuals
with relevant disabilities and another for individuals without relevant
disabilities--even when doing so is unnecessary and when users with
disabilities would have a better experience using the main web page.
This segregated approach is concerning and appears inconsistent with
section 504's core principles of inclusion and integration.\322\ The
Department is also concerned that the creation of separate websites for
individuals with disabilities may, in practice, result in unequal
access to information and functionality. However, as the W3C[supreg]
explains, certain limited circumstances may warrant the use of
conforming alternate versions of web pages. For example, a conforming
alternate version of a web page may be necessary when a new, emerging
technology is used on a web page, but the technology is not yet capable
of being made accessible, or when a website owner is legally prohibited
from modifying the web content.\323\
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\322\ See, e.g., 45 CFR 84.4(b)(2)(requiring that recipients
administer programs and activities in ``the most integrated setting
appropriate''); proposed 45 CFR 84.68(d).
\323\ See W3C[supreg], Understanding WCAG 2.0 (Oct. 7, 2016),
https://www.w3.org/TR/UNDERSTANDING-WCAG20/conformance.html#uc-conforming-alt-versions-head [https://perma.cc/DV5L-RJUG].
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Due to the concerns about user experience, segregation of users
with disabilities, unequal access to information, and maintenance
burdens discussed above, the Department is proposing to adopt a
slightly different approach to ``conforming alternate versions'' than
that provided under WCAG 2.1. Instead of permitting entities to adopt
``conforming alternate versions'' whenever they believe this is
appropriate, proposed Sec. 84.86 makes it clear that use of conforming
alternate versions of websites and web content to comply with the
Department's proposed requirements in Sec. 84.84 is permissible only
where it is not possible to make websites and web content directly
accessible due to technical limitations (e.g., technology is not yet
capable of being made accessible) or legal limitations (e.g., web
content is protected by copyright). Conforming alternate versions
should be used rarely--when it is truly not possible to make the
content accessible for reasons beyond the recipient's control. For
example, a conforming alternate version would not be permissible due to
technical limitations just because a recipient's web developer lacked
the knowledge or training needed to make content accessible. By
contrast, the recipient could use a conforming alternate version if its
website included a new type of technology that it is not yet possible
to make accessible, such as a specific kind of immersive virtual
reality environment. Similarly, a recipient would not be permitted to
claim a legal limitation because its general counsel failed to approve
contracts for a web developer with accessibility experience. Instead, a
legal limitation would apply when the inaccessible content itself could
not be modified for legal reasons specific to that content, such as
lacking the right to alter the content or needing to maintain the
content as it existed at a particular time due to pending litigation.
The Department believes this approach is appropriate because it ensures
that, whenever possible, people with disabilities have access to the
same web content that is available to people without disabilities.
However, proposed Sec. 84.86 does not prohibit recipients from
providing alternate versions of web pages in addition to their
accessible main web page to possibly provide users with certain types
of disabilities a better experience.
In addition to allowing conforming alternate versions to be used
where it is not possible to make websites and web content directly
accessible due to technical or legal limitations, this proposed
rulemaking also incorporates general limitations if recipients can
demonstrate that full compliance with Sec. 84.84 would result in a
fundamental alteration in the nature of a program or activity or undue
financial and administrative burdens.\324\ If an action would result in
such an alteration or such burdens, a recipient shall take any other
action that would not result in such an alteration or such burdens but
would nevertheless ensure that individuals with disabilities receive
the benefits or services provided by the recipient to the maximum
extent possible.\325\ One way in which recipients could fulfill their
obligation to provide the benefits or services to the maximum extent
possible, in the rare instance when they can demonstrate that full
compliance would result in a fundamental alteration or undue burdens,
is through creating conforming alternate versions.
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\324\ See proposed Sec. 84.88.
\325\ See proposed Sec. 84.88(a).
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Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Web Accessibility Question 51: Would allowing conforming
alternate versions due to technical or legal limitations result in
individuals with disabilities receiving unequal access to a recipient's
programs and activities?
Sec. 84.87 Equivalent Facilitation
Proposed Sec. 84.87 provides that nothing prevents a recipient
from using designs, methods, or techniques as alternatives to those
prescribed in the proposed regulation, provided that such alternatives
result in substantially equivalent or greater accessibility and
usability. The 1991 and 2010 ADA Standards for Accessible Design both
contain an equivalent facilitation provision.\326\ However, for
purposes of proposed subpart I, the reason for allowing for equivalent
facilitation is to encourage flexibility and innovation by recipients
while still ensuring equal or greater access to web and mobile content.
Especially in light of the rapid pace at which technology changes, this
proposed provision is intended to clarify that recipients can use
methods or techniques that provide equal or greater accessibility than
this proposed rule would require. For example, if a recipient wanted to
conform its website or mobile app to WCAG 2.1 Level AAA--which includes
all the Level AA requirements plus some additional requirements for
even greater accessibility--this provision makes clear that the
recipient would be in compliance with this rule. A recipient could also
choose to comply with this rule by conforming its website to WCAG 2.2
or WCAG 3.0, so long as the version and conformance level of those
guidelines that the recipient selects includes all of the WCAG 2.1
Level AA requirements. The Department believes that this proposed
provision offers needed flexibility for entities to provide usability
and accessibility that meet or exceed what this rule would require as
technology continues to develop. The responsibility for demonstrating
equivalent facilitation rests with the recipient.
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\326\ See 28 CFR pt. 36, app. D, at 1000 (1991); 36 CFR pt.
1191, app. B at 329.
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Sec. 84.88 Duties
Section 84.88 sets forth the general limitations on the obligations
under subpart I. Proposed Sec. 84.88(a) provides that in meeting the
accessibility requirements set out in this subpart, a recipient is not
required to take any action that would result in a
[[Page 63444]]
fundamental alteration in the nature of its programs or activities or
undue financial and administrative burdens. These proposed limitations
on a recipient's duty to comply with the proposed regulatory provisions
mirror the fundamental alteration and undue burdens compliance
limitations proposed in this rulemaking in Sec. 84.22(a)(2) (program
accessibility), Sec. 84.81 (effective communication), Sec. 84.92(e)
(accessible medical equipment), and the fundamental alteration
compliance limitation in Sec. 84.68(b)(7)(i) (reasonable modifications
in policies, practices, or procedures). These fundamental alteration
and undue burdens compliance limitations are also currently provided in
the title II regulation in 28 CFR 35.150(a)(3) (program accessibility)
and 35.164 (effective communication), and the fundamental alteration
compliance limitation is currently provided in the title II regulation
in 28 CFR 35.130(b)(7) (reasonable modifications in policies,
practices, or procedures).
Generally, the Department believes it would not constitute a
fundamental alteration of a recipient's programs or activities to
modify web content or mobile apps to make them accessible, though the
Department seeks the public's input on this view. Moreover, like the
fundamental alteration and undue burdens limitations in the title II
regulation referenced above, proposed Sec. 84.88(a) does not relieve a
recipient of all obligations to individuals with disabilities. Although
a recipient under this proposed rule is not required to take actions
that would result in a fundamental alteration in the nature of a
program or activity or undue financial and administrative burdens, it
nevertheless must comply with the requirements of this subpart to the
extent that compliance does not result in a fundamental alteration or
undue financial and administrative burdens. For instance, a recipient
might determine that full Level AA compliance would result in a
fundamental alteration or undue financial and administrative burdens.
However, this same recipient must then determine whether it can take
any other action that would not result in such an alteration or such
burdens but would nevertheless ensure that individuals with
disabilities receive the benefits or services provided by the recipient
to the maximum extent possible. To the extent that the recipient can,
it must do so. This may include the recipient bringing its web content
into compliance with some of the WCAG 2.1 Level A or Level AA success
criteria.
It is the Department's view that most entities that choose to
assert a claim that full compliance with the proposed web or mobile app
accessibility requirements would result in undue financial and
administrative burdens will be able to attain at least partial
compliance. The Department believes that there are many steps a
recipient can take to comply with WCAG 2.1 that should not result in an
undue financial and administrative burdens, depending on the particular
circumstances.
In determining whether an action would result in undue financial
and administrative burdens, all of a recipient's resources available
for use in the funding and operation of the program or activity should
be considered. The burden of proving that compliance with proposed
Sec. 84.88 would fundamentally alter the nature of a program or
activity or would result in undue financial and administrative burdens
rests with the recipient. The Department of Justice first promulgated
this language in its title II regulation in 1991 and has consistently
maintained that the decision that compliance would result in a
fundamental alteration or impose undue burdens must be made by the head
of the recipient or their designee, and must be memorialized with a
written statement of the reasons for reaching that conclusion.\327\ The
Department is adopting this language in its proposed section 504 rule
to maintain consistency between the ADA and section 504 and to maintain
continuity for its recipients, most of whom are also covered by the
ADA. The Department recognizes the difficulty recipients have in
identifying the official responsible for this determination, given the
variety of organizational structures within recipients and their
components.\328\ Thus, the Department intends to follow the approach
that the determination must be made by a high level official, no lower
than a major component head, that has been designated by the head of
the recipient and has budgetary authority and responsibility for making
spending decisions.\329\ Where a recipient cannot bring web content or
a mobile app into compliance without a fundamental alteration or undue
burdens, it must take other steps to ensure that individuals with
disabilities receive the benefits or services provided by the recipient
to the maximum extent possible.
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\327\ 28 CFR 35.150(a)(3), 35.164.
\328\ See similar determination by the Department of Justice. 28
CFR pt. 35, app. B, at 708 (2022).
\329\ See id.
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Once a recipient has complied with the web or mobile app
accessibility requirements set forth in subpart I, it is not required
to make further modifications to its web or mobile app content to
accommodate an individual who is still unable to access, or does not
have equal access to, the web or mobile app content due to their
disability. Compliance with these web and mobile accessibility
requirements does not remove covered entities' obligations as
employers, with respect to job applicants and employees, under Title I
of the ADA to not discriminate against qualified individuals on the
basis of disability in regard to job application procedures; the
hiring, advancement, or discharge of employees; employee compensation;
job training; or other terms, conditions, and privileges of employment.
These obligations include making reasonable accommodation to the known
physical or mental limitations of applicants or employees, absent undue
hardship. The Department realizes that the proposed rule is not going
to meet the needs of and provide access to every individual with a
disability, but believes that setting a consistent and enforceable web
accessibility standard that meets the needs of a majority of
individuals with disabilities will provide greater predictability for
recipients, as well as added assurance of accessibility for individuals
with disabilities.
Fully complying with the web and mobile app accessibility
requirements set forth in subpart I means that a recipient is not
required to make any further modifications to its web or mobile app
content. However, if an individual with a disability, on the basis of
disability, cannot access or does not have equal access to a program or
activity through a recipient's web content or mobile app that conforms
to WCAG 2.1 Level AA, the recipient still has an obligation to provide
the individual an alternative method of access to that program or
activity unless the recipient can demonstrate that alternative methods
of access would result in a fundamental alteration in the nature of a
program or activity or undue financial and administrative burdens.\330\
Thus, just because a recipient is in full compliance with this rule's
web or mobile app accessibility standard does not mean it has met all
of its obligations under section 504 or other applicable laws. Even
though no further changes to a recipient's web or mobile app content
are required by section 504, a recipient
[[Page 63445]]
must still take other steps necessary to ensure that an individual with
a disability who, on the basis of disability, is unable to access or
does not have equal access to the program or activity provided by the
recipient through its web content or mobile app can obtain access
through other effective means. The recipient must still satisfy its
general obligations to provide effective communication, reasonable
modifications, and an equal opportunity to participate in or benefit
from the entity's services using methods other than its website or
mobile app.\331\ Of course, a recipient may also choose to further
modify its web or mobile app content to make that content more
accessible or usable than this subpart requires.
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\330\ See, e.g., proposed 45 CFR 84.22(a)(2).
\331\ See 45 CFR 84.4, redesignated as 84.68; proposed
84.68(b)(7); proposed 84.77.
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The recipient must determine on a case-by-case basis how best to
accommodate those individuals who cannot access the program or activity
provided through the recipient's fully compliant web content or mobile
app. A recipient should refer to 45 CFR 84.77 (effective communication)
to determine its obligations to provide individuals with disabilities
with the appropriate auxiliary aids and services necessary to afford
them an equal opportunity to participate in, and enjoy the benefits of,
the recipient's program or activity. A recipient should refer to 45 CFR
84.68(b)(7) (reasonable modifications) to determine its obligations to
provide reasonable modifications in policies, practices, or procedures
to avoid discrimination on the basis of disability. It is helpful to
provide individuals with disabilities with information about how to
obtain the modifications or auxiliary aids and services they may need.
The Department therefore strongly recommends that the recipient provide
notice to the public on how an individual who cannot use the web
content or mobile app because of a disability can request other means
of effective communication or reasonable modifications in order to
access the recipient's programs or activities that are being provided
through the web content or mobile app. The Department also strongly
recommends that the recipient provide an accessibility statement that
tells the public about how to bring web or mobile app accessibility
problems to the recipient's attention, and that recipients consider
developing and implementing a procedure for reviewing and addressing
any such issues raised. For example, a recipient is encouraged to
provide an email address, accessible link, accessible web page, or
other accessible means of contacting the recipient to provide
information about issues individuals with disabilities may encounter
accessing web or mobile app content or to request assistance.\332\
Providing this information will help recipients to ensure that they are
satisfying their obligations to provide equal access, effective
communication, and reasonable modifications.
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\332\ See W3C[supreg], Developing an Accessibility Statement
(Mar. 11, 2021), https://www.w3.org/WAI/planning/statements/
[https://perma.cc/85WU-JTJ6].
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Measuring Compliance
As discussed above, the Department is proposing to adopt specific
standards for recipients to use to ensure that their web content and
mobile apps are accessible to individuals with disabilities. Proposed
Sec. 84.84 requires recipients to ensure that any web content and
mobile apps that they make available to members of the public or use to
offer programs and activities to members of the public are readily
accessible to and usable by individuals with disabilities. Proposed
Sec. 84.84(b) sets forth the specific technical requirements in WCAG
2.1 Level AA with which recipients must conform unless compliance
results in a fundamental alteration in the nature of a program or
activity or undue financial and administrative burdens. Now that the
Department is proposing requiring recipients to conform with a specific
technical standard for web accessibility, it seeks to craft a framework
for determining when a recipient has complied with that standard. The
framework will ensure the full and equal access to which individuals
with disabilities are entitled, while setting forth obligations that
will be achievable for recipients.
1. Existing Approaches To Defining and Measuring Compliance
a. Federal Approaches
The Department is aware of two Federal agencies that have
implemented requirements for complying with technical standards for web
accessibility. Each agency has taken a different approach to defining
what it means to comply with its regulation. As discussed above, for
Federal agency websites covered by Section 508, the Access Board
requires conformance with WCAG 2.0 Level A and Level AA.\333\ In
contrast, in its regulation on accessibility of air carrier websites,
the Department of Transportation took a tiered approach that did not
require all web content to conform to a technical standard before the
first compliance date.\334\ Instead, the Department of Transportation
required those web pages associated with ``core air travel services and
information'' to conform to a technical standard first, while other
types of content could come into conformance later.\335\ The Department
of Transportation also required air carriers to consult with members of
the disability community to test, and obtain feedback about, the
usability of their websites.\336\
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\333\ 36 CFR 1194.1; id. part 1194, app. A (E205.4).
\334\ 14 CFR 382.43(c)(1).
\335\ Id.
\336\ 14 CFR 382.43(c)(2).
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b. State Governments' Approaches
Within the United States, different public entities have taken
different approaches to measuring compliance with a technical standard
under State laws. For example, Florida,\337\ Illinois,\338\ and
Massachusetts \339\ require conformance, without specifying how
compliance will be measured or how recipients can demonstrate
compliance with this requirement.\340\ California requires the director
of each State agency to certify compliance with technical standards and
post a certification form on the agency's website.\341\ California also
provides assessment checklists for its agencies and guidelines for
sampling and testing, including recommending that agencies use
analytics data to conduct thorough testing on frequently used
pages.\342\ Minnesota requires compliance with a technical standard,
provides accessibility courses and other resources, and notes the
importance of both automated and manual testing; it also states that
``[f]ew systems are completely accessible,'' and that ``[t]he goal is
continuous improvement.'' \343\
[[Page 63446]]
Texas law requires state agencies to, among other steps, comply with a
technical standard, conduct tests with one or more accessibility
validation tools, establish an accessibility policy that includes
criteria for compliance monitoring and a plan for remediation of
noncompliant items, and establish goals and progress measurements for
accessibility.\344\ Texas has also developed an automated accessibility
scanning tool and offers courses on web accessibility.\345\
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\337\ Fla. Stat. 282.603 (2023).
\338\ 30 Ill. Comp. Stat. 587 (2023); Illinois Information
Technology Accessibility Act (Mar. 18, 2022), https://www.dhs.state.il.us/page.aspx?item=32765.
\339\ Commonwealth of Massachusetts, Enterprise Information
Technology Accessibility Policy (July 28, 2021), https://www.mass.gov/policy-advisory/enterprise-information-technology-accessibility-policy [https://perma.cc/8293-HXUA].
\340\ Fla. Stat. Sec. 282.603 (2021); Illinois Information
Technology Accessibility Act (Mar. 18, 2022), https://www.dhs.state.il.us/page.aspx?item=32765; Web Accessibility
Standards (Jan. 20, 2005), https://www.mass.gov/guides/web-accessibility-standards [https://perma.cc/MTG3-94PR].
\341\ Cal. Gov't Code 11546.7.
\342\ Department of Rehabilitation, Website Accessibility
Requirements and Assessment Checklists, https://www.dor.ca.gov/Home/WebRequirementsAndAssessmentChecklists [https://perma.cc/JAS9-Q343].
\343\ Minnesota IT Services, Guidelines for Accessibility and
Usability of Information Technology Standard (Apr. 17, 2018),
https://mn.gov/mnit/assets/accessibility-guidelines-2018_tcm38-336072.pdf [https://perma.cc/Q9P5-NGMT].
\344\ 1 Tex. Admin. Code 206.50, 213.21.
\345\ Texas Department of Information Resources, EIR
Accessibility Tools & Training, https://dir.texas.gov/electronic-information-resources-eir-accessibility/eir-accessibility-tools-training [https://perma.cc/A5LC-ZTST].
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c. Other Approaches To Defining and Measuring Compliance
The Department understands that businesses open to the public,
which are subject to title III of the ADA, have taken different
approaches to web accessibility. These approaches may include
collecting feedback from users with disabilities about inaccessible
websites or mobile apps, or relying on external consultants to conduct
periodic testing and remediation. Other businesses may have developed
detailed internal policies and practices that require comprehensive
automated and manual testing, including testing by people with
disabilities, on a regular basis throughout their digital content
development and quality control processes. Some businesses have also
developed policies that include timelines for remediation of any
accessibility barriers; these policies may establish different
remediation time frames for different types of barriers.
2. Challenges of Defining and Measuring Compliance With This Rule
The Department recognizes that it must move forward with care,
weighing the interests of all stakeholders, so that as accessibility
for individuals with disabilities is improved, innovation in the use of
the web or mobile apps by public entities is not hampered. The
Department appreciates that the dynamic nature of web content and
mobile apps presents unique challenges in measuring compliance. For
example, as discussed further below, this type of content can change
frequently and assessment of conformance can be complex or subjective.
Therefore, the Department is seeking public input on issues concerning
how compliance should be measured, which the Department plans to
address in its final rule.
The Department is concerned that the type of compliance measures it
currently uses in the ADA and other portions of section 504, such as
the one used to assess compliance with the ADA Standards, may not be
practical in the web or mobile app context. Specifying what it means to
comply with a technical standard for web accessibility is unlike the
physical accessibility required by the UFAS or the 2010 ADA Design
Standards. While section 504 physical accessibility standards can be
objectively and reliably assessed with one set of tools, different
automated testing tools may provide different assessments of the same
website's accessibility. For example, using different web browsers with
different testing tools or assistive technology can yield different
results. Assessments of a website's or mobile app's accessibility may
change frequently over time as the web content or mobile apps change.
Automated testing tools also may report purported accessibility errors
inaccurately. For example, an automated testing tool may report an
error because an image lacks alt text, but WCAG does not require such
alternative text if the content is purely decoration or used for
formatting.\346\ These tools may also provide an incomplete assessment
of a website's accessibility because automated tools cannot assess
conformance with certain WCAG success criteria, such as whether color
is being used as the only visual means of conveying information or
whether all functionality of the content is operable through a keyboard
interface.\347\ Furthermore, the Department understands that a person's
experiences of web or mobile app accessibility may vary depending on
what assistive technology or other types of hardware or software they
are using. Accordingly, the Department is considering what the
appropriate measure for determining compliance with the web and mobile
app accessibility requirements should be.
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\346\ See W3C[supreg], Web Content Accessibility Guidelines 2.1
(June 5, 2018), http://www.w3.org/TR/WCAG21/[https://perma.cc/UB8A-GG2F].
\347\ See W3C[supreg], Web Content Accessibility Guidelines 2.1,
Use of Color (June 5, 2018), https://www.w3.org/TR/WCAG21/#use-of-color [https://perma.cc/R3VC-WZMY]; id. at Keyboard Accessible
http://www.w3.org/TR/WCAG21/#keyboard-accessible [https://perma.cc/5A3C-9KK2].
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While the Department understands the challenges that full
conformance with WCAG 2.1 Level AA at all times may pose for some
recipients, the Department also appreciates the serious impact that a
failure to conform with WCAG 2.1 Level AA can have on people with
disabilities. For example, if a person who has limited manual dexterity
and uses keyboard navigation is trying to apply for public benefits,
and the ``submit'' button on the form is not operable using the
keyboard, that person will not be able to apply for benefits
independently for benefits online, even if the rest of the website is
fully accessible. A person who is blind and uses a screen reader may
not be able to make an appointment at a county health clinic if an
element of the clinic's appointment calendar is not coded properly.
Nearly all of a recipient's web content could conform with the WCAG 2.1
Level AA success criteria, but one instance of nonconformance could
still prevent someone from accessing services on the website. People
with disabilities must be able to access the many important government
programs and activities that are offered through web content and mobile
apps on equal terms, without sacrificing their privacy, dignity, or
independence. The Department's concern about the many barriers to full
and equal participation in civic life that inaccessible web content can
pose for people with disabilities is an important motivating factor
behind the Department's decision to propose requiring compliance with a
technical standard. By clarifying what compliance with a technical
standard means, the Department seeks to enhance the impact this
requirement will have on the daily lives of people with disabilities by
helping recipients to understand their obligations, thereby increasing
compliance.
The Department believes that a more nuanced definition of
compliance might be appropriate because some instances of
nonconformance with WCAG success criteria may not impede access to the
programs or activities offered through a public entity's web content or
mobile app. For example, if the contrast between the text and
background colors used for application instructions deviates by a few
hundredths from the color contrast ratio required by WCAG 2.1 Level AA,
most people with low vision will likely still be able to access those
instructions without difficulty. However, the web content would be out
of conformance with WCAG 2.1 Level AA. If the Department does not
establish a more detailed compliance framework, a person with a
disability would have a valid basis for filing a complaint with the
Department or in Federal court about the scenario. This could expose
recipients to extensive litigation risk, while potentially generating
more complaints than the Department or the
[[Page 63447]]
courts have capacity to resolve, and without improving access for
people with disabilities.
Some may argue that the same risk of allegedly unjustified
enforcement action also exists for some provisions of section 504. Yet,
the Department believes that a recipient's website may be more likely
to be out of full conformance with WCAG 2.1 Level AA than its buildings
are to be out of compliance with the design standards required by
Federal law, like UFAS or the 2010 ADA Standards. Sustained, perfect
conformance with WCAG 2.1 Level AA may be more difficult to achieve on
a website that is updated several times a week and includes thousands
of pages of content than compliance with the ADA Standards is in a town
hall that is renovated once a decade. The Department also believes that
slight deviations from WCAG 2.1 Level AA may be more likely to occur
without having a detrimental impact on access than is the case with the
ADA Standards. Additionally, it may be easier for an aggrieved
individual to find evidence of nonconformance with WCAG 2.1 Level AA
than noncompliance with the ADA Standards, given the availability of
many free testing tools and the fact that public entities' websites can
be accessed from almost anywhere. The Department welcomes public
comment on the accuracy of all of these assumptions, as well as about
whether it is appropriate to consider the impact of nonconformance with
a technical standard when evaluating compliance with the proposed rule.
3. Possible Approaches To Defining and Measuring Compliance With This
Rule
The Department is considering a range of different approaches to
measuring compliance with this proposed rule. These approaches involve
linking noncompliance with a technical standard to:
(a) A numerical percentage of compliance with a technical standard;
(b) Situations that impact the ability to have equal access to the
website or mobile app;
(c) The use of robust policies and practices for accessibility
feedback, testing, and remediation; or
(d) Organizational maturity.
Numerical Percentage
The Department is considering whether to require a numerical
percentage of conformance with a technical standard, which could be 100
percent or less. This percentage could be a simple numerical
calculation based on the number of instances of nonconformance across a
website or mobile app, or the percentage could be calculated by
weighting different instances of nonconformance differently. Weighting
could be based on factors like the importance of the content; the
frequency with which the content is accessed; the severity of the
impact of nonconformance on a person's ability to access the services,
programs, or activities provided on the website; or some other formula.
However, the Department does not believe that a percentage-based
approach would achieve the purposes of this rule or be feasible to
implement. First, a percentage-based approach seems unlikely to ensure
access for people with disabilities. Even if the Department were to
require that 95 percent or 99 percent of an entity's web content or
mobile apps conform with WCAG 2.1 (or that all content or apps conform
to 95 percent or 99 percent of the WCAG 2.1 success criteria), the
relatively small percentage that does not conform could still block an
individual with a disability from accessing a program or activity.
A percentage-based standard is also likely to be difficult to
implement. If the Department adopts a specific formula for calculating
whether a certain percentage-based compliance threshold has been met,
it could be challenging for members of the public and recipients to
determine whether web content and mobile apps comply with this rule.
Calculations required to evaluate compliance could become complex,
particularly if the Department were to adopt a weighted or tiered
approach that requires certain types of core content to be fully
accessible, while allowing a lower percentage of accessibility for less
important or less frequently accessed content. People with disabilities
who are unable to use inaccessible parts of a website or mobile app may
have particular difficulty calculating a compliance percentage, because
it could be difficult, if not impossible, for them to correctly
evaluate the percentage of a website or mobile app that is inaccessible
if they do not have full access to the entire website or app. For these
reasons, the Department currently is not inclined to adopt a
percentage-based approach to measuring compliance, though we welcome
public comment on ways that such an approach could be implemented
successfully.
Finding Noncompliance Where Nonconformance With a Standard Impacts the
Ability To Have Equal Access
Another possible approach would be to limit an entity's compliance
obligations where nonconformance with a technical standard does not
impact a person's ability to have equal access to programs or
activities offered on a recipient's website or mobile app. For example,
the Department could specify that nonconformance with WCAG 2.1 Level AA
does not constitute noncompliance with this part if that nonconformance
does not prevent a person with a disability from accessing or acquiring
the same information, engaging in the same interactions, performing the
same transactions, and enjoying the same programs and activities that
the recipient offers visitors to its website without relevant
disabilities, with substantially equivalent ease of use. This approach
would provide equal access to people with disabilities, while limiting
the conformance obligations of recipients where technical
nonconformance with WCAG 2.1 Level AA does not affect access. If a
recipient's compliance were to be challenged, in order to prevail, the
recipient would need to demonstrate that, even though it was
technically out of conformance with one or more of the WCAG 2.1 Level
AA success criteria, the nonconformance had such a minimal impact that
this provision applies, and the recipient has therefore met its
obligations under the ADA despite nonconformance with WCAG 2.1.
The Department believes that this approach would have a limited
impact on the experience of people with disabilities who are trying to
use web content or mobile apps for two reasons. First, by its own
terms, the provision would require a recipient to demonstrate that any
nonconformance did not have a meaningful effect. Second, it is possible
that few recipients will choose to rely on such a provision, because
they would prefer to avoid assuming the risk inherent in this approach
to compliance. A recipient may find it easier to conform to WCAG 2.1
Level AA in full so that it can depend on that clearly defined
standard, instead of attempting to determine whether any nonconformance
could be excused under this provision. Nonetheless, the Department
believes some recipients may find such a provision useful because it
would prevent them from facing the prospect of failing to comply with
the ADA based on a minor technical error. The
[[Page 63448]]
Department seeks public comment on all of these assumptions.
The Department also believes such an approach may be logically
consistent with the general nondiscrimination principles of Section
508, which require comparable access to information and data,\348\ and
of the ADA's implementing regulation, which require an equal
opportunity to participate in and benefit from services.\349\ The
Department has heard support from the public for ensuring that people
with disabilities have equal access to the same information and
services as people without disabilities, with equivalent ease of use.
The Department is therefore evaluating ways that it can incorporate
this crucial principle into a final rule, while simultaneously ensuring
that the compliance obligations imposed by the final rule will be
attainable for public entities in practice.
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\348\ See 29 U.S.C. 794d(a)(1)(A).
\349\ 28 CFR 35.130(b)(ii).
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Accessibility Feedback, Testing, and Remediation
Another approach the Department is considering is whether a
recipient could demonstrate compliance with this part by affirmatively
establishing and following certain robust policies and practices for
accessibility feedback, testing, and remediation. The Department has
not made any determinations about what policies and practices, if any,
would be sufficient to demonstrate compliance, and the Department is
seeking public comment on this issue. However, for illustrative
purposes only, and to enable the public to better understand the
general approach the Department is considering, assume that a recipient
proactively tested its existing web and mobile app content for
conformance with WCAG 2.1 Level AA using automated testing on a regular
basis (e.g., every 30 days), conducted user testing on a regular basis
(e.g., every 90 days), and tested any new web and mobile app content
for conformance with WCAG 2.1 Level AA before that content was posted
on its website or added to its mobile app. This recipient also
remediated any nonconformance found in its existing web and mobile app
content soon after the test (e.g., within two weeks). A recipient that
took these (or similar) steps on its own initiative could be deemed to
have complied with its obligations under the section 504, even if a
person with a disability encountered an access barrier or a particular
automated testing report indicated nonconformance with WCAG 2.1 Level
AA. The recipient would be able to rely on its existing, effectively
working web and mobile app content accessibility testing and
remediation program to demonstrate compliance with section 504. In a
final rule, the Department could specify that nonconformance with WCAG
2.1 Level AA does not constitute noncompliance with this part if a
recipient has established certain policies for testing the
accessibility of web and mobile app content and remediating
inaccessible content, and the entity can demonstrate that it follows
those policies.
This approach would enable a recipient to remain in compliance with
section 504 even if its website or mobile app is not in perfect
conformance with WCAG 2.1 Level AA at all times, if the entity is
addressing any nonconformance within a reasonable period of time. A new
policy that a recipient established in response to a particular
complaint, or a policy that an entity could not demonstrate that it has
a practice of following, would not satisfy such a provision. The
Department could craft requirements for such policies in many different
ways, including by requiring more prompt remediation for nonconformance
with a technical standard that has a more serious impact on access to
programs and activities; providing more detail about what testing is
sufficient (e.g., both automated testing and manual testing, testing by
users with certain types of disabilities); setting shorter or longer
time frames for how often testing should occur; setting shorter or
longer time frames for remediation; or establishing any number of
additional criteria.
Organizational Maturity
The Department is also considering whether a recipient should be
permitted to demonstrate compliance with this rule by showing
organizational maturity--that the organization has a sufficiently
robust program for web and mobile app accessibility. Organizational
maturity models provide a framework for measuring how developed an
organization's programs, policies, and practices are--either as a whole
or on certain topics (e.g., cybersecurity, user experience, project
management, accessibility). The authors of one accessibility maturity
model observe that it can be difficult to know what a successful
digital accessibility program looks like, and they suggest that
maturity models can help assess the proficiency of accessibility
programs and a program's capacity to succeed.\350\ Whereas
accessibility conformance testing evaluates the accessibility of a
particular website or mobile app at a specific point in time,
organizational maturity evaluates whether a recipient has developed the
infrastructure needed to produce accessible websites and mobile apps
consistently.\351\ For example, some outcomes that an organization at
the highest level of accessibility maturity might demonstrate include
integrating accessibility criteria into all procurement and contracting
decisions, leveraging employees with disabilities to audit
accessibility, and periodically evaluating the workforce to identify
gaps in accessibility knowledge and training.\352\
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\350\ See Level Access, The Digital Accessibility Maturity
Model: Introduction to DAMM, https://www.levelaccess.com/the-digital-accessibility-maturity-model-introduction-to-damm/, [https://perma.cc/6K38-FJZU].
\351\ See W3C[supreg], W3C Accessibility Maturity Model, About
the W3C Accessibility Maturity Model (Sept. 6, 2022), https://www.w3.org/TR/maturity-model/ [https://perma.cc/NB29-BDRN].
\352\ See W3C[supreg], W3C Accessibility Maturity Model, Ratings
for Evaluation (Sept. 6, 2022), https://www.w3.org/TR/maturity-model/ [https://perma.cc/W7DA-HM9Z].
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A focus on organizational maturity would enable a recipient to
demonstrate compliance with section 504 even if its website or mobile
app is not in perfect conformance with WCAG 2.1 Level AA at all times,
so long as the recipient can demonstrate sufficient maturity of its
digital accessibility program, which would indicate its ability to
quickly remedy any issues of nonconformance identified. The Department
could define requirements for organizational maturity in many different
ways, including by adopting an existing organizational maturity model
in full, otherwise relying on existing organizational maturity models,
establishing different categories of organizational maturity (e.g.,
training, testing, feedback), or establishing different criteria for
measuring organizational maturity levels in each category. The
Department could also require a recipient to have maintained a certain
level of organizational maturity across a certain number of categories
for a specified period of time, or require a recipient to have improved
its organizational maturity by a certain amount in a specified period
of time.
The Department has several concerns about whether allowing
recipients to demonstrate compliance with this rule through their
organizational maturity will achieve the goals of this rulemaking.
First, this approach may not provide sufficient accessibility for
individuals with disabilities. It is not clear that when recipients
make their accessibility programs more robust, that
[[Page 63449]]
will necessarily result in websites and mobile apps that consistently
conform to WCAG 2.1 Level AA. If the Department permits a lower level
of organizational maturity (e.g., level 4 out of 5) or requires the
highest level of maturity in only some categories (e.g., level 5 in
training), this challenge may be particularly acute. Second, this
approach may not provide sufficient predictability or certainty for
recipients. Organizational maturity criteria may prove subjective and
difficult to measure, so disputes about a recipient's assessments of
its own maturity may arise. Third, an organizational maturity model may
be too complex for the Department to define or for recipients to
implement. Some existing models include as many as ten categories of
accessibility, with five levels of maturity, and more than ten criteria
for some levels.\353\ Some of these criteria are also highly technical
and may not be feasible for some recipients to understand or satisfy
(e.g., testing artifacts are actively updated and disseminated based on
lessons learned from each group; accessibility testing artifacts
required by teams are actively updated and maintained for form and ease
of use).\354\ Of course, a recipient that does not want to use an
organizational maturity model would not need to do so; it could meet
its obligations under the rule by conforming with WCAG 2.1 Level AA.
But it is unclear whether this approach will benefit either people with
disabilities or recipients. We seek public comment on whether the
Department should adopt an approach to compliance that includes
organizational maturity, and how such an approach could be implemented
successfully.
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\353\ Level Access, Digital Accessibility Maturity Model (DAAM)
Archives, https://www.levelaccess.com/category/damm/, [https://perma.cc/Z683-X9H5].
\354\ Level Access, The Digital Accessibility Maturity Model:
Dimension #7--Testing and Validation, https://www.levelaccess.com/the-digital-accessibility-maturity-model-dimension-7-testing-and-validation/, [https://perma.cc/VU93-3NH4].
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The Department seeks public comment on how compliance with the web
and mobile app accessibility requirements should be assessed or
measured, including comments on these approaches to measuring
compliance and any alternative approaches it should consider.
Please provide as much detail as possible and any applicable data,
suggested alternative approaches or requirements, arguments,
explanations, and examples in your responses to the following
questions.
Web Accessibility Question 52: What should be considered
sufficient evidence to support an allegation of noncompliance with a
technical standard for purposes of enforcement action? For example, if
a website or mobile app is noncompliant according to one testing
methodology, or using one configuration of assistive technology,
hardware, and software, is that sufficient?
Web Accessibility Question 53: In evaluating compliance,
do you think a recipient's policies and practices related to web and
mobile app accessibility (e.g., accessibility feedback, testing,
remediation) should be considered and, if so, how?
Web Accessibility Question 54: If you think a recipient's
policies and practices for receiving feedback on web and mobile app
accessibility should be considered in assessing compliance, what
specific policies and practices for feedback would be effective? What
specific testing policies and practices would be effective? What
specific testing policies and practices would be effective?
Web Accessibility Question 55: Should a recipient be
considered in compliance with this part if the recipient remediates web
and mobile app accessibility errors within a certain period of time
after the recipient learns of nonconformance through accessibility
testing or feedback? If so, what time frame for remediation is
reasonable?
Web Accessibility Question 56: Should compliance with this
rule be assessed differently for web content that existed on the
recipient's website on the compliance date than for web content that is
added after the compliance date?
Web Accessibility Question 57: In evaluating compliance,
do you think a recipient's organizational maturity related to web and
mobile app accessibility should be considered and, if so, how? For
example, what categories of accessibility should be measured? Would
such an approach be useful for recipients?
Web Accessibility Question 58: Should the Department
consider limiting recipients' compliance obligations if nonconformance
with a technical standard does not prevent a person with disabilities
from accessing the programs and activities offered on the recipient's
website or mobile app?
Web Accessibility Question 59: When assessing compliance,
should all instances of nonconformance be treated equally? Should
nonconformance with certain WCAG 2.1 success criteria, or
nonconformance in more frequently accessed content or more important
core content, be given more weight when determining whether a website
or mobile app meets a particular threshold for compliance?
Web Accessibility Question 60: How should the Department
address isolated or temporary noncompliance \355\ with a technical
standard and under what circumstances should noncompliance be
considered isolated or temporary? How should the Department address
noncompliance that is a result of technical difficulties, maintenance,
updates, or repairs?
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\355\ See 28 CFR 35.133(b).
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Web Accessibility Question 61: Are there any local, state,
Federal, international, or other laws or policies that provide a
framework for measuring, evaluating, defining, or demonstrating
compliance with web or mobile app accessibility requirements that the
Department should consider adopting?
Subpart J--Accessible Medical Equipment
Background
The Department is proposing adding a new subpart J to the existing
section 504 regulation to address the lack of accessible medical
equipment for people with disabilities. Disability advocates have long
sought adoption of Federal accessibility standards for medical
equipment--a step that will help endure nondiscriminatory access to
critical, and potentially lifesaving, care for people with
disabilities. In addition, regulated entities would benefit from
specific technical guidance on how to fulfill their obligations and
make their programs accessible. NCD has issued multiple reports
recommending that HHS adopt the U.S. Access Board's Standards for
Accessible Medical Diagnostic Equipment (MDE Standards).\356\
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\356\ See, e.g., Nat`l Council on Disability, Enforceable
Accessible Medical Equipment Standards: A Necessary Means to Address
the Health Care Needs of People with Mobility Disabilities (2021),
https://ncd.gov/sites/default/files/Documents/NCD_Medical_Equipment_Report_508.pdf; Nat`l Council on Disability,
2021 Progress Report: The Impact of Covid on People with
Disabilities (2021), https://ncd.gov/sites/default/files/NCD_COVID-19_Progress_Report_508.pdf (``the lack of accessible examination and
medical equipment in medical care means that people with
disabilities, specifically people with mobility disabilities,
receive substandard primary care compared to people without
disabilities.''). NCD also contacted OCR directly with these
concerns. See, e.g., Advisory Letter from Nat`l Council on
Disability to U.S. Dep't of Health & Hum. Servs (Aug. 27, 2019)
(responding to Section 1557 Notice of Proposed Rulemaking, https://ncd.gov/publications/2019/advisory-letter-1557 (``NCD is extremely
concerned about the significant barriers to health care posed by the
common lack of accessible medical diagnostic equipment (AMDE) in
most health care settings. As HHS is aware, lack of AMDE contributes
to a lack of preventive care that is necessary for early diagnosis
of diseases and has been linked to poor health outcomes, poorer
quality of life, and shorter length of life for people with
disabilities. When a person cannot be properly examined because he
cannot transfer onto an exam table or a diagnostic machine, non-
diagnosis and misdiagnosis are likely. Disease and illness that may
be treatable if caught early may become worse or incurable,
resulting in high human and economic costs.'').
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[[Page 63450]]
OCR has recognized, in its enforcement, that section 504 requires
covered medical practices to be accessible to persons with
disabilities, including by utilizing accessible equipment.\357\ OCR has
investigated and resolved complaints of alleged discrimination
resulting from the lack of accessible medical equipment. In addition,
DOJ has investigated complaints involving the lack of accessible
medical equipment and entered into numerous agreements with hospitals
requiring the purchase, lease, or acquisition of accessible medical
equipment.\358\ And for years, the Department has received comments and
letters, including public comments on versions of the Section 1557
rule, detailing the harm that people with disabilities face from the
lack of accessible medical equipment and the expectation that the
Department would address these barriers using its regulatory
authority.\359\
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\357\ See, e.g., OCR Complaint 01-21-421198 (Complainant alleged
that there was no method to receive an x-ray from the covered entity
as their x-ray machine was not sufficiently adjustable to
accommodate her in her wheelchair, nor was there a method to
transfer her from her wheelchair to the x-ray machine. After
investigation the complaint was closed with corrective action by the
covered entity including asking for necessary accommodations during
scheduling, training staff on transfers, and acquiring a Hoyer lift
for transfers); OCR Complaint 02-18-302905 (Complainant alleged that
she told covered entity she would require accessible equipment or a
Hoyer lift to transfer for her OBGYN exam. Despite her request,
there was no lift or accessible equipment present at her
appointment. The complaint was resolved through the early complaint
resolution process and corrective action.); OCR Complaint 01-16-
248000 (Complainant alleged that covered entity told her she would
have to bring her own means of transfer to appointments. Covered
entity subsequently acquired a lift, trained employees on its use,
and updated its nondiscrimination training.).
\358\ U.S. Dep't of Justice, Justice Department Settles with
Tufts Medical Center to Better Ensure Equal Access for Individuals
with Disabilities (Feb. 28, 2020), https://www.justice.gov/opa/pr/justice-department-settles-tufts-medical-center-better-ensure-equal-access-individuals; U.S. Dep't of Justice, Justice Department
Reaches ADA Settlement with Beth Israel Deaconess Medical Center
(Oct. 22, 2009), https://www.justice.gov/opa/pr/justice-department-reaches-ada-settlement-beth-israel-deaconess-medical-center; U.S.
Dep't of Justice, Washington Hospital Center Agreement Fact Sheet
(Nov. 2, 2005), https://www.ada.gov/whcfactsheet.htm, https://archive.ada.gov/whc.htm; U.S. Dep't of Justice, Settlement Agreement
between U.S. and Valley Radiologists Medical Group (Nov. 2, 2005),
Settlement Agreement between the United States of America and Valley
Radiologists Medical Group, Inc. (Nov. 2, 2005)Settlement Agreement
between the United States of America and Valley Radiologists Medical
Group, Inc. (Nov. 2, 2005) https://archive.ada.gov/vri.htm.
\359\ Examples include, from the 2013 Request for Information,
U.S. Dept. of Health and Human Serv., 78 FR 46558, the comments from
the Disability Rights Education and Defense Fund, available at
https://www.regulations.gov/comment/HHS-OCR-2013-0007-0152; Letter
from Nat'l Council on Disability, to Alex Azar, Sec'y U.S. Dep't of
Health & Hum. Servs., Off. for Civil Rts. (July 31, 2020)(on need
for accessible medical equipment rule), https://ncd.gov/publications/2020/ncd-letter-hhs-secretary-azar-accessible-medical-equipment-rule; Lankford, Colleagues Press HHS to Prevent
Discrimination of Individuals with Disabilities in Health Care,
Lankford.senate.gov (May 26, 2021), https://www.lankford.senate.gov/news/press-releases/lankford-colleagues-press-hhs-to-prevent-discrimination-of-individuals-with-disabilities-in-health-care,
https://www.lankford.senate.gov/news/press-releases/lankford-colleagues-press-hhs-to-prevent-discrimination-of-individuals-with-disabilities-in-health-care; Letter from Autistic Self Advocacy
Network et al., to Xavier Beccera, Sec'y, U.S. Dept. of Health and
Human Servs. (Aug. 18, 2022) (urging the Department to provide clear
standards for medical exam and diagnostic equipment); Letter from
American Association of People with Disabilities et al., to Xavier
Beccera, Sec'y, U.S. Dept. of Health and Human Servs. (Feb. 24,
2022) (requesting that the Department issue medical diagnostic
equipment standards) at https://www.aapd.com/wp-content/uploads/2022/03/HHS_Disability-Advocates-Memo-02.24.22.pdf.
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The ACA added Section 510 to the Rehabilitation Act, directing the
Access Board, in consultation with the Food and Drug Administration, to
promulgate regulatory standards setting forth the minimum technical
criteria for medical diagnostic equipment (MDE) used in (or in
conjunction with) physicians' offices, clinics, emergency rooms,
hospitals, and other medical settings.\360\ These standards were needed
to ensure that such equipment would be accessible to, and usable by,
individuals with disabilities with accessibility needs, and allow
independent entry to, use of, and exit from the equipment by such
individuals to the maximum extent possible. However, the MDE Standards
are not enforceable requirements for health care providers or equipment
manufacturers until they are adopted by a Federal regulatory agency. In
2010, DOJ issued an Advance Notice of Proposed Rulemaking (ANPRM) on
``Nondiscrimination on the Basis of Disability by State and Local
Governments and Places of Public Accommodation,'' \361\ that identified
the need for accessible medical equipment and furniture:
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\360\ 29 U.S.C. 794f.
\361\ 75 FR 43452 (July 26, 2010).
Without accessible medical examination tables, dental chairs,
radiological diagnostic equipment, scales, and rehabilitation
equipment, individuals with disabilities do not have an equal
opportunity to receive medical care. Individuals with disabilities
may be less likely to get routine preventative medical care than
people without disabilities because of barriers to accessing that
care.\362\
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\362\ 75 FR 43452, 43455 (July 26, 2010).
The ANPRM said that DOJ may propose regulations to ensure the
accessibility of medical equipment that is used for treatment,
rehabilitative, or other purposes. However, DOJ later formally withdrew
the ANPRM.\363\ In the Fall 2022 Unified Regulatory Agenda, DOJ
restated its intent to publish an NPRM under title II of the ADA
covering accessibility of MDE.\364\
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\363\ 82 FR 60932 (Dec. 26, 2017).
\364\ Nondiscrimination on the Basis of Disability by State and
Local Government, Public Accommodations, and Commercial Facilities:
Medical Diagnostic Equipment, RIN 1190-AA78, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202210&RIN=1190-AA78
(last visited April. 2, 2023).
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In 2015, HHS issued an NPRM on Nondiscrimination in Health Programs
and Activities under Section 1557 of the ACA prohibiting discrimination
on various bases, including disability, in certain health programs and
activities. In the NPRM, the Department stated that once the Access
Board standards were promulgated, OCR ``intends to issue regulations or
policies that require covered entities to conform to those standards.''
In 2017, the Access Board published the final rule on Standards for
Accessible Medical Diagnostic Equipment.\365\ However, when the
Department issued a final rule on Section 1557 in 2020, the Department
did not include the MDE Standards.\366\ Similarly, the Department's
2022 Section 1557 NPRM does not require adherence to the MDE Standards,
but requests comment on the MDE Standards.\367\ The Department has
determined that action on this issue is overdue and, as a result, is
proposing this new subpart to the section 504 regulation. While some
entities covered under Section 1557 may not be covered under section
504, and vice versa, ``health programs or activities'' under Section
1557 that are also ``programs or activities'' under section 504
receiving Federal financial assistance would be covered by this
proposed subpart.\368\
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\365\ 36 CFR 1195.
\366\ 85 FR 37160 (June 19, 2020).
\367\ 87 FR 47824, 47909 (Aug. 4, 2022).
\368\ See 42 U.S.C. 18116(a).
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The Department is coordinating its publication of this proposed
rule with DOJ, which is concurrently publishing a proposed rule
addressing the accessibility of medical diagnostic equipment under
title II of the ADA. Given the relationship between section 504 and
title II and Congressional intent
[[Page 63451]]
that the two disability rights laws generally be interpreted
consistently, both Departments are proceeding with rulemakings that
provide the same requirements, one for recipients of Federal financial
assistance from HHS and the other for public entities subject to title
II of the ADA.
Overview of Access Board's MDE Standards
In implementing the mandate set forth in Sec. 510 of the
Rehabilitation Act to promulgate technical standards for accessible
MDE, the Access Board received input from various stakeholders through
a multi-year deliberative process and published the MDE Standards on
January 9, 2017.\369\ The Access Board divides the MDE Standards into
four separate technical criteria based on how the equipment is used by
the patient: (1) supine, prone, or side lying position; (2) seated
position; (3) seated in a wheelchair; and (4) standing position. For
each category of use, the MDE Standards provide for independent entry
to, use of, and exit from the equipment by patients with disabilities
to the maximum extent possible.
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\369\ 82 FR 2810 (Jan. 9, 2017).
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The technical requirements for MDE used by patients in the supine,
prone, or side-lying position (such as examination tables) and MDE used
by patients in the seated position (such as examination chairs) focus
on ensuring that the patient can transfer from a mobility device onto
the MDE. The other two categories set forth the necessary technical
requirements to allow the patient to use the MDE while seated in their
wheelchair (such as during a mammogram) or while standing (such as on a
weight scale), respectively. The MDE Standards also include technical
criteria for supports, including for transfer, standing, leg, head and
back supports; instructions or other information communicated to
patients through the equipment; and operable parts used by patients.
The Access Board's MDE Standards currently contain a temporary
standard governing the minimum low height requirement for transfers
from diagnostic equipment used by patients in a supine, prone, side-
lying, or seated position. Specifically, the temporary standard
provides for a minimum low transfer height requirement of 17 inches to
19 inches. The temporary nature of this standard was due to
insufficient data on the extent to which, and how many, individuals
would benefit from a transfer height lower than 19 inches. While this
temporary standard is in effect, any low transfer height between 17 and
19 inches will meet the MDE Standards. Under a sunset provision, as
extended, this low height range remains in effect only until January
10, 2025.\370\
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\370\ See 87 6037 (Feb. 3, 2022).
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On May 23, 2023, the Access Board issued an NPRM that proposes
removing the sunset provisions in the Board's existing MDE Standards
related to the low-height specifications for transfer surfaces, and
replacing them with final specifications for the low transfer height of
medical diagnostic equipment used in the supine, prone, side-lying, and
seated positions.\371\ Comments on this NPRM will be received until
August 31, 2023.\372\ After the Access Board analyzes the comments that
it receives, the Board will issue a final, updated minimum low transfer
height standard. After this new standard is adopted, the Department
will consider issuing a supplemental rulemaking under section 504 to
adopt the updated Standards.
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\371\ 88 FR 33056-33063 (May 23, 2023).
\372\ 88 FR 50096 (Aug. 1, 2023).
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Need for the Adoption of MDE Standards
The accessibility of MDE is essential to providing equal access to
medical care to people with disabilities. In developing this proposed
subpart, the Department considered the well-documented barriers
individuals with disabilities face when accessing MDE, as well as the
benefits for people with disabilities and health care workers alike of
using accessible MDE.\373\ The accessibility or inaccessibility of MDE
impacts a substantial population--approximately 61 million adults live
with a disability in the U.S., and 13.7% of those individuals have a
mobility disability with serious difficulty walking or climbing
stairs.\374\ According to the U.S. Census Bureau, as of 2019, of the
over 41 million people with disabilities in the U.S. living outside of
institutional settings, mobility or ambulatory impairment is estimated
to be the most common category of disability.\375\ While not all
individuals with a mobility disability with serious difficulty walking
or climbing stairs, or individuals with mobility or ambulatory
impairments will require accessible MDE, or benefit from it to the same
extent, significant portions of these populations will benefit from
accessible MDE. Further, a number of studies and reports have shown
that individuals with disabilities may be less likely to get routine or
preventative medical care than people without disabilities because of
barriers to accessing appropriate care through MDE.\376\ In one case, a
patient with a disability remained in his wheelchair for the entirety
of his annual physical exam, which consisted of his doctor listening to
his heart and lungs underneath his clothing, looking inside his ears
and throat, and then stating, ``I assume everything below the waist is
fine.'' \377\ In another case, a patient with a disability could be
transferred to a standard exam table, but extra staff was needed to
keep her from falling off the table since it did not have any side
rails. As a result of this and a number of other frightening
experiences, the patient avoided going to the doctor unless she was
very ill.\378\ Multiple studies have been conducted that found
individuals with certain disabilities face barriers to accessing MDE
and are often denied accessible MDE by their health care
providers.\379\ Accessible MDE is thus often critical to an entity's
ability to provide a person with a disability equal access to, and
opportunities to benefit from, its health care programs and activities.
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\373\ Nat'l Council on Disability, The Current State of Health
Care for People with Disabilities (2009), https://www.ncd.gov/publications/2009/Sept302009 (last accessed Aug. 17, 2022). See,
e.g., Dep't of Health & Human Servs., Administration for Community
Living, Wheelchair-Accessible Medical Diagnostic Equipment: Cutting
Edge Technology, Cost-Effective for Health Care Providers, and
Consumer-Friendly (2020), https://health.maryland.gov/bhm/DHIP/Documents/Medical%20Diagnostic%20Equipment%20Fact%20Sheet%20Final.pdf (last
accessed Aug. 17, 2022).
\374\ U.S. Dep't of Health & Human Servs., Ctrs. for Disease
Control, Disability Impacts All of Us, https://www.cdc.gov/ncbddd/disabilityandhealth/infographic-disability-impacts-all.html (last
visited Oct. 25, 2022).
\375\ U.S. Census Bureau, American Community Survey, Disability
Characteristics, https://data.census.gov/cedsci/table?t=Disability&tid=ACSST1Y2019.S1810 (last visited Dec. 27,
2021).
\376\ See, e.g., Anna Marrocco and Helene J Krouse, ``Obstacles
to preventive care for individuals with disability: Implications for
nurse practitioners,'' J. Am. Ass'n of Nurse Pract. 2017
May;29(5):282-293 (2017) at 289; U.S. Dep't of Health & Human
Servs., Off. of the Surgeon Gen., ``The Surgeon General's Call To
Action To Improve the Health and Wellness of Persons with
Disabilities,'' (2005), available at https://www.ncbi.nlm.nih.gov/books/NBK44667/ (last visited Dec. 2, 2021); NCD Report at 14.
\377\ Nat'l Council on Disability Enforceable Accessible Medical
Equipment Standards at 15 (2021), https://ncd.gov/sites/default/files/Documents/NCD_Medical_Equipment_Report_508.pdf.
\378\ Id. at 16-17.
\379\ See A. Ordway et al., ``Health Care Access and the
Americans with Disabilities Act: A Mixed Methods Study,'' 14
Disability and Health J. (2021) (Stating that of 536 people with
disabilities surveyed, 25% had difficulty accessing exam tables).
See also J. L. Wong et al., ``Identification of Targets for
Improving Access to Care in Persons with Long Term Physical
Disabilities,'' 12 Disability and Health J. 366 (2019) (stating that
of the 462 people who needed a height-adjustable examination table,
56% received it).
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The Department has also consistently provided information to
covered entities
[[Page 63452]]
on how they can make their health care programs and activities
accessible to individuals with mobility disabilities. For example, the
Department and DOJ jointly issued a technical assistance document on
medical care for people with mobility disabilities, addressing how
accessible MDE can be critical to ensure that people with disabilities
receive medical services equal to those received by people without
disabilities.\380\ In particular, the document explains that the
``availability of accessible medical equipment is an important part of
providing accessible medical care, and doctors and other providers must
ensure that medical equipment is not a barrier to individuals with
disabilities.'' \381\ The guidance also provides examples of accessible
medical equipment, including adjustable-height exam tables and chairs,
wheelchair-accessible scales, adjustable-height radiologic equipment,
portable floor and overhead track lifts, gurneys, and stretchers, and
discusses how people with mobility disabilities use this equipment.
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\380\ See ``Access to Medical Care for Individuals with Mobility
Disabilities,'' May 17, 2010, available at https://www.ada.gov/medcare_mobility_ta/medcare_ta.htm (last visited Dec. 2, 2021).
\381\ Id.
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The Department recognizes that in addition to its efforts to ensure
that people with disabilities have equal access to medical care,
including through technical assistance,\382\ providing enforceable
technical standards will help ensure clarity to recipients on how to
fulfill their existing obligations under title II and section 504 in
their health care programs and activities. As discussed in the preamble
to Sec. 84.56, Medical treatment, the COVID-19 pandemic has had a
devastating and disproportionate impact on people with disabilities and
has underscored how dire the consequences may be for those who lack
adequate access to medical care and treatment. As the NCD Report notes,
significant health care disparities for persons with disabilities are
due in part to the lack of physical access to MDE, and ``[e]nsuring
physical access to care through accessible MDE is necessary to
equitably provide medical care for all people, and the need continues
to grow.'' \383\ As a result of its findings, NCD called upon DOJ to
revise its ADA regulations to require health care providers to formally
adopt the MDE Standards.\384\
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\382\ See, e.g., U.S. Dep't of Just. & U.S. Dep't of Health &
Human Servs., Access to Medical Care for Individuals with Mobility
Disabilities (July 22, 2010), available at https://www.ada.gov/medcare_mobility_ta/medcare_ta.htm.
\383\ NCD Report at 14.
\384\ Id. at 52.
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Accordingly, the Department is proposing changes to its section 504
regulations that can help ensure that vital health care programs and
activities are equally available to individuals with disabilities.
Specifically, the Department is considering adopting and incorporating
into its section 504 regulation the specific technical requirements for
accessible MDE that are set forth in the Access Board's MDE Standards.
Section-by-Section Analysis
This analysis discusses the Department's proposed changes to the
section 504 regulation, including the reasoning behind the proposals,
and poses questions for public comment.
Sec. 84.90 Application
This section states that the subpart applies to recipients of
Federal financial assistance from the Department.
Sec. 84.91 Requirements for Medical Diagnostic Equipment
This section provides general accessibility requirements for
programs and activities that recipients provide through or with the use
of MDE. Recipients must ensure that their programs and activities
offered through or with the use of MDE are accessible to individuals
with disabilities.
Under this general provision (barring an applicable limitation or
defense), a recipient cannot deny services that it would otherwise
provide to a patient with a disability because the recipient lacks
accessible MDE. A recipient also cannot require a patient with a
disability to bring someone along with them to help during an exam. A
patient may choose to bring another person such as a friend, family
member, or personal care aide to an appointment, but regardless, the
recipient may need to provide reasonable assistance to enable the
patient to receive medical care. Such assistance may include helping a
person who uses a wheelchair to transfer from their wheelchair to the
exam table or diagnostic chair.\385\ The recipient cannot require the
person accompanying the patient to assist.
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\385\ See U.S. Dep't of Just. & U.S. Dep't of Health & Human
Servs., Access to Medical Care for Individuals with Mobility
Disabilities (July 22, 2010), available at https://www.ada.gov/medcare_mobility_ta/medcare_ta.htm.
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Sec. 84.92 Newly Purchased, Leased, or Otherwise Acquired Medical
Diagnostic Equipment
For MDE that recipients purchase, lease, or otherwise acquire after
the effective date of this proposed rule (60 days after its publication
in the Federal Register), the proposed rule adopts an approach that
draws on the approach that the existing section 504 regulations apply
to new construction and alterations of buildings and facilities. The
Department would require that all MDE that a recipient purchases,
leases, or otherwise acquires after the rule's effective date must be
accessible, unless and until the proposed rule's scoping requirements,
set forth in more detail in Sec. 84.92(b), are satisfied. As in the
fixed or built-in environment, this rule is proposing that the
accessibility of MDE will be governed by a specific set of design
standards promulgated by the Access Board that set forth technical
requirements for accessibility. So long as a recipient has the amount
of accessible MDE set forth in the scoping requirements in Sec.
84.92(b), the recipient is not required to continue to obtain
accessible MDE when it purchases, leases, or otherwise acquires MDE
after the effective date. However, a recipient may choose to acquire
additional accessible MDE after it satisfies the scoping requirements.
Sec. 84.92(a) Requirements for Newly Purchased, Leased, or Otherwise
Acquired Medical Diagnostic Equipment
Paragraph (a) adopts the Access Board's MDE Standards as the
standard governing whether MDE is accessible and establishes one of the
proposed rule's key requirements: that subject to applicable
limitations and defenses, all MDE that recipients purchase, lease, or
otherwise acquire after the effective date must meet the MDE Standards
unless and until the recipient already has a sufficient amount of
accessible MDE to satisfy the scoping requirements of the proposed
rule.
As explained above in more detail, the MDE Standards include
technical criteria for equipment that is used when patients are either
1) in a supine, prone, or side-lying position; 2) in a seated position;
3) in a wheelchair; or 4) in a standing position. They also contain
standards for supports, communication, and operable parts. In addition,
the MDE Standards also contain requirements for equipment to be
compatible with patient lifts where a patient would transfer under
positions (1) and (2) above.
Consistent with the language in 29 U.S.C. 794f(b), MDE covered
under this subpart includes examination tables, examination chairs
(including chairs used for eye examinations or procedures, and dental
examinations or procedures), weight scales, mammography equipment, x-
ray machines, and other radiological
[[Page 63453]]
equipment commonly used for diagnostic purposes by health
professionals. This section covers medical equipment used by health
professionals for diagnostic purposes even if it is also used for
treatment purposes.
Given the many barriers to health care that people with
disabilities encounter due to inaccessible MDE, adopting the MDE
Standards will give many people with disabilities an equal opportunity
to participate in and benefit from health care programs and activities.
Sec. 84.92(b) Scoping
Paragraph (b) proposes scoping requirements for accessible MDE.
Accessibility standards generally contain scoping requirements (how
many accessible features are needed) and technical requirements (what
makes a particular feature accessible). For example, the 2010 ADA
Standards for Accessible Design (2010 ADA Standards) provide scoping
requirements for how many toilet compartments in a particular toilet
room must be accessible and provide technical requirements on what
makes these toilet compartments accessible.\386\ The MDE Standards
issued by the Access Board contain technical requirements, but they do
not specify scoping requirements. Rather, the MDE Standards state that
``[t]he enforcing authority shall specify the number and type of
diagnostic equipment that are required to comply with the MDE
Standards.'' \387\ For the technical requirements to be implemented and
enforced effectively, it is necessary for the Department to provide
scoping requirements to specify how much accessible MDE is needed for a
recipient's program or activity to comply with section 504.
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\386\ See 36 CFR pt. 1191, app. B sec. 213.3.1.
\387\ 82 FR 2810, 2846 (Jan. 9, 2017).
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The scoping requirements that the Department proposes are based on
the requirements the 2010 ADA Standards establish for accessible
patient sleeping rooms and parking in hospitals, rehabilitation
facilities, psychiatric facilities, detoxification facilities, and
outpatient physical therapy facilities.\388\ Because many recipients
must comply with titles II and III of the ADA,\389\ many recipients are
likely already familiar with these standards.
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\388\ See 36 CFR pt. 1191, app. B secs. 208.2.2, 223.2.1,
223.2.2.
\389\ Recipients that are public entities are subject to the
requirements of title II of the ADA; recipients that are private
entities engaged in providing health care or social services, among
other entities, are subject to the requirements of title III of the
ADA.
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According to the 2010 ADA Standards, licensed medical care
facilities and licensed long-term care facilities where the period of
stay exceeds 24 hours shall provide accessible patient or resident
sleeping rooms and disperse them proportionately by type of medical
specialty.\390\ Where sleeping rooms are altered or added, the sleeping
rooms being altered or added shall be made accessible until the minimum
number of accessible sleeping rooms is provided.\391\ Hospitals,
rehabilitation facilities, psychiatric facilities, and detoxification
facilities that do not specialize in treating conditions that affect
mobility shall have at least 10 percent of their patient sleeping
rooms, but no fewer than one, provide specific accessibility features
for patients with mobility disabilities.\392\ Hospitals, rehabilitation
facilities, psychiatric facilities, and detoxification facilities that
specialize in treating conditions that affect mobility must have 100
percent of their patient sleeping rooms provide specific accessibility
features for patients with mobility disabilities.\393\ In addition, at
least 20 percent of patient and visitor parking spaces at outpatient
physical therapy facilities and rehabilitation facilities specialized
in treating conditions that affect mobility must be accessible.\394\
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\390\ See 28 CFR 35.151(h); 36 CFR pt. 1191, app. B sec. 223.1.
\391\ See 36 CFR pt. 1191, app. B sec. 223.1.
\392\ See 36 CFR pt. 1191, app. B sec. 223.2.1.
\393\ See 36 CFR pt. 1191, app. B sec. 223.2.2.
\394\ See 36 CFR pt. 1191, app. B sec. 208.2.2.
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MDE Question 1: The Department seeks public comment on
whether and how to apply the existing scoping requirements for patient
or resident sleeping rooms or parking spaces in certain medical
facilities to MDE; and on whether there are meaningful differences
between patient or resident sleeping rooms, accessible parking, and MDE
that the Department should consider when finalizing the scoping
requirements.
MDE Question 2: The Department seeks public comment on
whether different scoping requirements should apply to different types
of MDE, and if so, what scoping requirements should apply to what types
of MDE.
Proposed paragraphs (b)(1)-(3) lay out scoping requirements for
this section. Paragraph (b)(1) provides the general requirement for
physician's offices, clinics, emergency rooms, hospitals, outpatient
facilities, multi-use facilities, and other medical programs and
activities that do not specialize in treating conditions that affect
mobility. When these entities use MDE to provide programs or
activities, they must ensure that at least 10 percent, but no fewer
than one unit, of each type of equipment complies with the MDE
Standards. For example, a medical practice with 20 examination chairs
would be required to have two examination chairs (10 percent of the
total) that comply with the MDE Standards. In a medical practice with
five examination chairs, the practice would be required to have one
examination chair that complies with the MDE Standards (because every
covered entity must have no fewer than one unit of each type of
equipment that is accessible). If a dental practice has one x-ray
machine, that x-ray machine would be required to be accessible.
Proposed paragraph (b)(2) provides the scoping requirement for
rehabilitation facilities that specialize in treating conditions that
affect mobility, outpatient physical therapy facilities, and other
medical programs and activities that specialize in treating conditions
that affect mobility. This paragraph requires that at least 20 percent
of each type of MDE used in these types of programs and activities, but
no fewer than one unit of each type of MDE, must comply with the MDE
Standards. Because these facilities specialize in treating patients who
are likely to need accessible MDE, it is reasonable for them to have
more accessible MDE than is required for the health care providers
covered by paragraph (b)(1), who do not have the same specialization.
The Department considered whether to require 100 percent of MDE in
these programs to be accessible, like ec. 223.2.2 of the 2010 ADA
Standards for Accessible Design, which requires that 100 percent of
patient sleeping rooms in similar facilities provide specific
accessibility features for patients with mobility disabilities.
However, the Department is instead proposing a scoping requirement
analogous to sec. 208.2.2 of the 2010 ADA Standards, which requires 20
percent of visitor and patient parking spaces at such facilities to be
accessible. The time-limited use of MDE is more analogous to the use of
parking spaces at a rehabilitation facility than to the use of sleeping
rooms. As with parking spaces, several different patients with mobility
disabilities could use the same piece of MDE in a day, while patients
generally occupy a sleeping room for all or a significant part of the
day. Thus, the Department's proposed rule draws on the 2010 ADA
Standards' scoping requirements by requiring at least 20 percent (but
no fewer than one unit) of each type of
[[Page 63454]]
equipment in use in facilities that specialize in treating conditions
that affect mobility to meet the MDE Standards, and requiring at least
10 percent (but no fewer than one unit) of each type of equipment in
use in other facilities to meet the MDE Standards.
MDE Question 3: Because more patients with mobility
disabilities may need accessible MDE than need accessible parking, the
Department seeks public comment on whether the Department's suggested
scoping requirement of 20 percent is sufficient to meet the needs of
persons with disabilities.
MDE Question 4: The Department seeks public comment on any
burdens that this proposed requirement or a higher scoping requirement
might impose on recipients.
Paragraph (b)(3) addresses facilities or programs with multiple
departments, clinics, or specialties. The current ADA title II
regulation requires medical care facilities that do not specialize in
the treatment of conditions that affect mobility to disperse the
accessible patient sleeping rooms in a manner that is proportionate by
type of medical specialty.\395\ The proposed rule includes an analogous
dispersion requirement. In any facility or program that has multiple
departments, clinics, or specialties, where a program or activity
utilizes MDE, the accessible MDE required by paragraphs (b)(1) and (2)
shall be dispersed proportionately across departments, clinics, or
specialties. For example, a hospital that is required to have five
accessible x-ray machines cannot place all the accessible x-ray
machines in the orthopedics department and none in the emergency
department. People with disabilities must have an opportunity to
benefit from each type of medical care provided by the recipient that
is equal to the opportunity provided to people without
disabilities.\396\ The proposed rule would not require recipients to
acquire additional MDE, beyond the amount specified in proposed
paragraphs (b)(1) and (2), to ensure that accessible MDE is available
in every department, clinic, and specialty. The Department believes
that this approach is consistent with many provisions of the 2010 ADA
Standards.\397\ Additionally, the Department believes that if the rule
were to require full dispersion across every department, clinic, and
specialty, it could be difficult to determine whether the scoping
requirements have been satisfied. For example, a clinic may be part of
a department and also part of a specialty (or include providers with
multiple specialties), so calculating the percentages of accessible MDE
each department, clinic, or specialty has could become complex.
However, the Department also recognizes that it is critically important
for people with disabilities to have access to all types of medical
care. Therefore, covered entities would still be required to ensure
that all of their programs and activities are accessible to and usable
by individuals with disabilities, regardless of whether a specific
department, clinic, or specialty would be required to acquire
accessible MDE under proposed paragraph (b)(3).
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\395\ 28 CFR 35.151(h). A similar dispersion requirement was not
necessary for medical care facilities that specialize in the
treatment of conditions that affect mobility, because 100 percent of
patient sleeping rooms in those facilities are required to be
accessible. See 36 CFR pt. 1191, app. B sec. 223.2.2.
\396\ See 28 CFR 35.130(b)(ii); 35.150(a).
\397\ See, e.g., 36 CFR pt. 1191, app. B secs. 221.2.2, 224.5,
225.3.1, 235.2.1. According to these sections, when the required
number of accessible elements has been provided, further dispersion
is not required.
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MDE Question 5: The Department seeks public comment on
whether the proposed approach to dispersion of accessible MDE is
sufficient to meet the needs of individuals with disabilities,
including the need to receive different types of specialized medical
care.
MDE Question 6: The Department seeks public comment on
whether additional requirements should be added to ensure dispersion
(e.g., requiring at least one accessible exam table and scale in each
department, clinic, or specialty; requiring each department, clinic and
specialty to have a certain percentage of accessible MDE).
MDE Question 7: The Department seeks information
regarding:
[cir] The extent to which accessible MDE can be moved or otherwise
shared between clinics or departments.
[cir] The burdens that the rule's proposed approach to dispersion
or additional dispersion requirements may impose on recipients.
[cir] The burdens that the rule's proposed approach to dispersion
may impose on people with disabilities (e.g., increased wait times if
accessible MDE needs to be located and moved, embarrassment,
frustration, or impairment of treatment that may result if a patient
must go to a different part of a hospital or clinic to use accessible
MDE).
84.92(c) Requirements for Examination Tables and Weight Scales
Paragraph (c) sets forth specific requirements for examination
tables and weight scales. Proposed paragraph (c)(1) would require
recipients that use at least one examination table in their program or
activity to purchase, lease, or otherwise acquire, within two years
after the publication of this part in final form, at least one
examination table that meets the requirements of the MDE Standards,
unless the entity already has one in place. Similarly, proposed
paragraph (c)(2) requires recipients that use at least one weight scale
in their program or activity to purchase, lease, or otherwise acquire,
within two years after the publication of this part in final form, at
least one weight scale that meets the requirements of the MDE
Standards, unless the entity already has one in place. This requirement
is subject to the other requirements and limitations set forth in Sec.
84.92. Thus, this section does not require a recipient to acquire an
accessible examination table and an accessible weight scale if doing so
would result in a fundamental alteration in the nature of the program
or activity or undue financial and administrative burdens, per Sec.
84.92(e) and (f). In addition, recipients may use designs, products, or
technologies as alternatives to those prescribed by the MDE Standards
if the criteria set forth in Sec. 84.92(d) are satisfied.
The Department notes that it is proposing to retain Sec. 84.22(c)
in the Existing Facilities section of its current section 504 rule,
which applies to small health, welfare, or other social service
providers. Under this provision, when a recipient with fewer than
fifteen employees finds, after consultation with an individual with
disabilities seeking its services, that there is no method of complying
with these requirements other than making a significant alteration in
its existing facilities, it may refer the patient with a disability who
seeks health care services to other providers of those services that
are accessible. The Department is considering applying the framework of
that provision to this subpart. The recipient in question must ensure
that the other medical practice is taking patients and that the
practice is accessible. It should also be within a reasonable distance
of the referring provider. The Department seeks comment on the
advisability and equity implications of retaining this provision and
applying it to the obligation to acquire accessible MDE under this
proposed rule. The Department also seeks any suggestions for addressing
its scope, including what should constitute a ``reasonable distance''
to a referred provider.
MDE Question 8: The Department seeks public comment on the
potential impact of the requirement of paragraph
[[Page 63455]]
(c) on people with disabilities and recipients, including the impact on
the availability of accessible MDE for purchase and lease.
MDE Question 9: The Department seeks public comment on
whether two years would be an appropriate amount of time for the
requirements of paragraph (c); and if two years would not be an
appropriate amount of time, what the appropriate amount of time would
be.
Sec. 84.92(d) Equivalent Facilitation
Paragraph (d) specifies that a recipient may use designs, products,
or technologies as alternatives to those prescribed by the MDE
Standards, for example, to incorporate innovations in accessibility.
However, this exception applies only where the recipient provides
substantially equivalent or greater accessibility and usability than
the MDE Standards require. It does not permit a recipient to use an
innovation that reduces access below what the MDE Standards would
provide. The responsibility for demonstrating equivalent facilitation
rests with the recipient.
Sec. 84.92(e) Fundamental Alteration and Undue Burdens
Paragraph (e) addresses the fundamental alteration and undue
financial and administrative burdens defenses. While the proposed rule
generally requires recipients to adhere to the MDE Standards when newly
purchasing, leasing, or otherwise acquiring equipment, it does not
require recipients to take steps that would result in a fundamental
alteration in the nature of their programs or activities or undue
financial or administrative burdens. These proposed limitations mirror
the existing ADA title II regulation at 28 CFR 35.150(a)(3). If a
particular action would result in a fundamental alteration or undue
burdens, the recipient would be obligated to take other action that
would not result in such an alteration or such burdens but would
nevertheless ensure that individuals with disabilities receive the
benefits or services the recipient provides.
Sec. 84.92(f) Diagnostically Required Structural or Operational
Characteristics
Paragraph (f) incorporates what the Access Board's MDE Standards
refer to as a General Exception. The paragraph states that, where a
recipient can demonstrate that compliance with the MDE Standards would
alter diagnostically required structural or operational characteristics
of the equipment, preventing the use of the equipment for its intended
diagnostic purpose, compliance with the Standards would result in a
fundamental alteration and therefore would not be required. The
Department expects that this provision will apply only in rare
circumstances.
In such circumstances, the recipient would still be required to
take other action that would not result in such an alteration or such
burdens but would nevertheless ensure that individuals with
disabilities could receive the programs or activities the recipient
provides. For example, the Department has been informed that certain
positron emission tomography (PET) machines cannot meet the MDE
Standards' technical requirements for accessibility and still serve
their diagnostic function. If this is so, then recipients would not be
required to make those PET machines fully accessible, but they would be
required to take other action that would enable individuals with
disabilities to access PET machines in some other way without
fundamentally altering the nature of the program or activity or
imposing an undue financial or administrative burdens. Such actions may
include assisting patients who use wheelchairs with transferring so
that they can receive a PET scan.
Sec. 84.93 Existing Medical Diagnostic Equipment
In addition to the requirements for newly purchased, leased, or
otherwise acquired MDE, proposed Sec. 84.93 requires that recipients
address access barriers resulting from a lack of accessible MDE in
their existing inventory of equipment. Here the proposed rule adopts an
approach analogous to the concept of program accessibility in the
existing regulation at Sec. 84.22. Under this approach, recipients may
make their programs and activities available to individuals with
disabilities without extensive retrofitting of their existing buildings
and facilities that predate the regulations, by offering access to
those programs through alternative methods. The Department intends to
adopt a similar approach with MDE to provide flexibility to recipients,
address financial concerns about acquiring new MDE, and at the same
time ensure that individuals with disabilities will have access to the
programs and activities of the recipient.
Proposed Sec. 84.93 requires that each program or activity of a
recipient, when viewed in its entirety, be readily accessible to and
usable by individuals with disabilities. Section 84.93(a)(1) makes
clear, however, that a recipient is not required to make each piece of
its existing MDE accessible. Like Sec. 84.92(e), Sec. 84.93(a)(2)
incorporates the concepts of fundamental alteration and undue financial
and administrative burdens. These provisions do not excuse a recipient
from addressing the accessibility of the program. If a particular
action would result in a fundamental alteration or undue burdens, the
recipient would still be obligated to ensure that individuals with
disabilities are able to receive the recipient's benefits and services.
Sec. 84.93(b) Methods
Paragraph (b) sets forth various methods by which recipients can
make their programs and activities readily accessible to and usable by
individuals with disabilities when the requirements in proposed Sec.
84.92 have not been triggered by the new acquisition of MDE. Of course,
the purchase, lease, or other acquisition of accessible MDE may often
be the most effective way to achieve program accessibility. However,
except as stated in proposed Sec. 84.92, a recipient is not required
to purchase, lease, or acquire accessible MDE if other methods are
effective in achieving compliance with this subpart.
For example, if doctors at a medical practice have staff privileges
at a local hospital that has accessible MDE, the medical practice may
be able to achieve program accessibility by ensuring that the doctors
see these patients at the hospital, rather than at the local office, so
long as the person with a disability is afforded an opportunity to
participate in or benefit from the program or activity equal to that
afforded to others. Similarly, if a medical practice has offices in
several different locations, and one of the locations has accessible
MDE, the medical practice may be able to achieve program accessibility
by serving the patient who needs accessible MDE at that location.
However, such an arrangement would not provide an equal opportunity to
participate in or benefit from the program or activity if it was, for
example, significantly less convenient for the patient, or if the visit
to a different location resulted in higher costs for the patient.
MDE Question 10: The Department seeks information about
other methods that recipients can use to make their programs and
activities readily accessible to and usable by individuals with
disabilities in lieu of purchasing, leasing, or otherwise acquiring
accessible MDE.
Similarly, if the scoping requirements set forth in Sec. 84.92(b)
would require a recipient's medical practice to have three height-
adjustable exam tables and an accessible weight scale, but the
practice's existing equipment includes only one accessible exam table
and one
[[Page 63456]]
accessible scale, then until the practice must comply with Sec. 84.92,
the practice could ensure that its services are readily accessible to
and usable by people with disabilities by establishing operating
procedures such that, when a patient with a mobility disability
schedules an appointment, the accessible MDE can be reserved for the
patient's visit. In some cases, a recipient may be able to make its
services readily accessible to and usable by individuals with
disabilities by using a patient lift or a trained lift team, especially
in instances in which a patient cannot or chooses not to independently
transfer to the MDE in question.\398\
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\398\ See U.S. Dep't of Just. & U.S. Dep't of Health & Human
Servs., Access to Medical Care for Individuals with Mobility
Disabilities (July 22, 2010), available at https://www.ada.gov/medcare_mobility_ta/medcare_ta.htm.
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If the means by which a recipient carries out its obligation under
Sec. 84.93(a) to make its program or activity readily accessible to
and usable by individuals with disabilities is by purchasing, leasing,
or otherwise acquiring accessible MDE, the requirements for newly
purchased, leased, or otherwise acquired MDE set forth in Sec. 84.92
apply.
The Department is also aware that there may be initial supply
issues for accessible MDE, particularly if a large number of recipients
seek to purchase accessible MDE at the same time. The Department does
note that the fundamental alteration and undue financial and
administrative burdens limitations may apply if supply chain issues
hamper the ability of recipients to purchase, lease, or otherwise
acquire accessible MDE.
The proposed rule's requirements apply regardless of whether
recipients are using MDE that is leased, purchased, or acquired through
other means. The Department is aware that some recipients may lease
MDE, rather than purchasing it outright. The Department's existing
section 504 regulation, at 45 CFR 84.4(b)(4), redesignated as Sec.
84.68(b)(4), provides that a recipient may not, directly or through
contractual or other arrangements, use criteria or methods of
administration that subject qualified persons with disabilities to
discrimination on the basis of disability. The Department's existing
section 504 regulation, at 45 CFR 84.4(b)(1)(i)-(ii), redesignated as
Sec. 84.68(b)(1)(i)-(ii), also prohibits a recipient from, directly or
through contractual or other arrangements, denying a qualified
individual with a disability the opportunity to participate in or
benefit from a service, or affording a qualified individual with a
disability an opportunity to participate in or benefit from a service
that is not equal to the opportunity afforded others. Under these
longstanding regulatory provisions, the manner in which a recipient
acquires its equipment does not alter the entity's obligation to
provide an accessible program or activity. The proposed rule's
requirements also apply if the recipient contracts with a third party
to provide medical programs, services, or activities.
MDE Question 11: The Department seeks information
regarding recipients' leasing practices, including how many and what
types of recipients use leasing, rather than purchasing, to acquire
MDE; when recipients lease equipment; whether leasing is limited to
certain types of equipment (e.g., costlier and more technologically
complex types of equipment); and the typical length of recipients' MDE
lease agreements.
MDE Question 12: The Department seeks information
regarding whether there is a price differential for MDE lease
agreements for accessible equipment.
MDE Question 13: The Department seeks information
regarding any methods that recipients use to acquire MDE other than
purchasing or leasing.
Medical Equipment Used for Treatment, Not Diagnostic, Purposes
Many types of medical equipment other than MDE are used in the
provision of health care. The accessibility, or lack thereof, of these
types of equipment can determine whether people with disabilities have
an equal opportunity to participate in and benefit from health programs
and activities. This non-diagnostic medical equipment may be used in
federally assisted programs and includes, for example, devices intended
to be used for therapeutic or rehabilitative care such as treatment
tables and chairs for oncology, obstetrics, physical therapy, and
rehabilitation medicines; lifts; infusion pumps used for dispensing
chemotherapy drugs, pain medications, or nutrients into the circulatory
system; dialysis chairs used while a patient's blood is pumped between
a patient and a dialyzer; other tables or chairs designed for highly
specialized procedures; general exercise and rehabilitation equipment
used while seated or standing; and ancillary equipment \399\ needed to
ensure the safety and comfort of patients in the use of medical
equipment.\400\ Although the MDE Standards do not address non-
diagnostic medical equipment, certain types of other medical equipment
that are not diagnostic in purpose may still fall into the technical
criteria categories set out by the MDE Standards (equipment used in (1)
supine, prone, or side lying position, (2) seated position, (3) while
seated in a wheelchair, and (4) standing position; certain technical
requirements concerning methods of communication and operable parts).
As noted above, equipment used for both diagnostic purposes and other
purposes is MDE if it otherwise meets the definition of MDE.
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\399\ Ancillary equipment may include equipment such as
cushions, bolsters, straps, sliding boards, or other items used to
facilitate transfers and to help position patients.
\400\ See U.S. Access Board, Medical Diagnostic Equipment
Accessibility Standards Advisory Committee, Advancing Equal Access
to Diagnostic Services: Recommendations on Standards for the Design
of Medical Diagnostic Equipment for Adults with Disabilities (Dec.
6, 2013).
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The Department is considering adding a provision establishing that
when the MDE Standards contain technical standards that can be applied
to a particular piece of non-diagnostic medical equipment, the
requirements set forth in Sec. Sec. 84.91-84.94 apply to the non-
diagnostic medical equipment at issue. Although MDE Standards were
promulgated by the Access Board in response to a statutory mandate to
provide standards specific to diagnostic equipment, recipients have an
obligation under section 504 to provide equal opportunity to benefit
from medical care of all types, including through the use of equipment
that does not satisfy the definition of MDE. The Department seeks
comment on whether to apply the Access Board's MDE Standards to non-
diagnostic equipment--for example, because the relevant characteristics
of some types of non-diagnostic equipment may be sufficiently similar
to MDE to warrant applying the same standards--and if there is adequate
justification for applying the MDE Standards' technical specifications
to non-diagnostic equipment, which non-diagnostic equipment should be
covered. For example, infusion chairs used only to dispense
chemotherapy drugs are not used for diagnostic purposes and therefore
would not fall under the definition of MDE. But if the MDE Standards
contained technical standards that could be applied to infusion chairs,
the requirements set forth in Sec. Sec. 84.91-84.94 could apply to
such equipment. The Department seeks public comment on whether this
rule should apply to medical equipment that is not used for diagnostic
purposes, and if so, in what situations it should apply.
[[Page 63457]]
MDE Question 14: If this rule were to apply to medical
equipment that is not used for diagnostic purposes,
[cir] ``Should the technical standards set forth in the Standards
for Accessible Medical Diagnostic Equipment be applied to non-
diagnostic medical equipment, and if so, in what situations should
those technical standards apply to non-diagnostic medical equipment?''
[cir] Are there particular types of non-diagnostic medical
equipment that should or should not be covered?
Sec. 84.94 Qualified Staff
The proposed rule requires recipients to ensure that their staff
are able to successfully operate accessible MDE, assist with transfers
and positioning of individuals with disabilities, and carry out the
program access obligation with respect to existing MDE. This will
enable recipients to carry out their obligation to make the programs
and activities that they offer through or with the use of MDE readily
accessible to and usable by individuals with disabilities. The
Department believes recipients must have, at all times when services
are provided to the public, appropriate and knowledgeable personnel who
can operate MDE in a manner that ensures services are available and
timely provided. Often, the most effective way for recipients to ensure
that their staff are able to successfully operate accessible MDE is to
provide staff training on the use of MDE.
MDE Question 15: The Department seeks general comments on
this proposal, including any specific information on the effectiveness
of programs used by recipients in the past to ensure that their staff
is qualified and any information on the costs associated with such
programs.
MDE Question 16: The Department seeks public comment on
whether there are any barriers to complying with this proposed
requirement, and if so, how they may be addressed.
III. Nondiscrimination in Programs and Activities
B. Revised Provisions Addressing Discrimination and Ensuring
Consistency With Statutory Changes and Significant Court Decisions
The Department seeks to revise its existing section 504 regulation
for federally assisted programs to incorporate statutory amendments to
the Rehabilitation Act, the enactment of the ADA and the ADAAA, the
Affordable Care Act, and Supreme Court and other significant court
cases. The regulations also need to be revised to update outdated
terminology and regulatory provisions.
The ADA revised the Rehabilitation Act to include definitions of
the terms ``drugs'' and ``illegal use of drugs,'' directing that these
terms be interpreted consistent with the principles of the Controlled
Substances Act, 21 U.S.C. 801 et seq.\401\ Both the ADA and the
Rehabilitation Act expressly exclude from coverage an individual who is
currently engaging in the illegal use of drugs,\402\ although the
exclusions in the Rehabilitation Act differ in some ways from those in
the ADA.\403\ The Rehabilitation Act Amendments of 1992 changed the
term ``handicapped person'' to ``individual with a disability'' and
provided that the standards contained in title I of the ADA apply to
determinations of employment discrimination under section 504. More
recently, the ADAAA revised the meaning and interpretation of the
definition of ``disability'' under section 504 to ensure that the term
is interpreted consistently with the expanded definition of
``disability'' codified in the ADA and in section 504's statutory
language.
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\401\ See 29 U.S.C. 705(10).
\402\ See 29 U.S.C. 705(10), (20)(C).
\403\ Compare 42 U.S.C. 12210 (ADA) with 29 U.S.C. 705(20)(C)
(Rehabilitation Act).
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To ensure consistency with the ADA, the proposed rule contains the
following provisions that mirror the ADA provisions: definition of
``disability,'' notice, maintenance of accessible features, retaliation
or coercion, personal devices and services, service animals, mobility
devices, and communications. Provisions that are similar to the ADA
include purpose and broad coverage, definitions, general prohibitions
against discrimination, program accessibility, illegal drugs, direct
threat, and integration. Courts have generally interpreted section 504
consistently with title II of the ADA.\404\ For this reason, and
because applying the same standard under both statutes promotes
compliance and eases the burden on recipients of the Department's
financial assistance, we propose to align the provisions of this rule
with ADA requirements absent some specific statutory language or strong
policy reason to take a divergent path.\405\
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\404\ See, e.g., Berardelli v. Allied Servs. Inst. of Rehab.
Med., 900 F.3d 104, 117, 120 (3d Cir. 2018) (concluding that courts
``constru[e] the provisions of [both statutes] in light of their
close similarity of language and purpose,'' and ``generally apply
the same standard for determination of liability'' to both ``in
recognition that the scope of protection afforded under both
statutes, i.e., the general prohibition[ ] against discrimination,
is materially the same,'' and holding ``that the service animal
regulations, although technically interpreting the ADA, are no less
relevant to the interpretation of the RA'') (cleaned up); Argenyi v.
Creighton Univ., 703 F.3d 441, 448 (8th Cir. 2013) (stating, in a
communications access case, that ``[s]ince the ADA and the
Rehabilitation Act are similar in substance,'' we treat the case law
interpreting them as interchangeable.'') (cleaned up); Zukle v.
Regents of Univ. of Cal., 166 F.3d 1041, 1045 n.11 (9th Cir. 1999)
(``There is no significant difference in analysis of the rights and
obligations created by the ADA and the Rehabilitation Act.'') See
also, Abrahams v. MTA Long Island Bus., 644 F. 3d 110, 115 (2d Cir.
2011) (``Because the ADA and the Rehabilitation Act impose nearly
identical requirements, we focus on the ADA but our analysis applies
to the Rehabilitation Act as well.''); Weixel v. Bd. of Educ., 287
F. 3d 138, 146 n. 6 (2d Cir. 2002) (``. . . the reach and
requirements of both statutes are precisely the same. . . .'');
Rodriguez v. City of N.Y., 197 F. 3d 611, 618 (2d Cir. 1999)
(``Because section 504 of the Rehabilitation Act and the ADA impose
identical requirements, we consider these claims in tandem.'');
Theriault v. Flynn, 162 F. 3d 46, 48 n. 3 (1st Cir. 1998) (``Title
II of the ADA was expressly modeled after section 504 of the
Rehabilitation Act, and is to be interpreted consistently with that
provision.''); Doe v. Univ. of Md. Med. Sys. Corp., 50 F. 3d 1261,
1265 n. 9 (4th Cir. 1995) (``Because the language of the two
statutes is substantially the same, we apply the same analysis to
both.''); Collings v. Longview Fibre Co., 63 F. 3d 828, 832 n. 3
(9th Cir. 1995) (``The legislative history of the ADA indicates that
Congress intended judicial interpretation of the Rehabilitation Act
be incorporated by reference when interpreting the ADA.'').
\405\ In addition, the legislative history of the 1992
amendments to the Rehabilitation Act reveals congressional intent
that the policies, practices, and procedures of the ADA should guide
all titles of the Rehabilitation Act. S. Rept. 102-357, at 14 (Aug.
3, 1992); H.R. Rep. 102-822, at 81 (Aug. 10, 1992).
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In addition, there have been significant U.S. Supreme Court
decisions interpreting section 504 requirements relating to the
``direct threat'' limitation and to the obligation to provide
``reasonable modifications'' unless those modifications can be shown to
pose a fundamental alteration to the program or activity.\406\ The
proposed regulation incorporates the ``direct threat'' principle in
Sec. 84.75 and the ``reasonable modifications'' principle in Sec.
84.68(b)(7).
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\406\ See, e.g., Schl. Bd. of Nassau Cnty. v. Arline, 480 U.S.
273 (1987); Alexander v. Choate, 469 U.S. 287 (1985); Southeastern
Cmty. Coll. v. Davis, 442 U.S. 397 (1979).
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Relationship Between Section 504 and the ADA
Title II of the ADA prohibits discrimination on the basis of
disability by public entities (i.e., State and local governments and
their agencies),\407\ and is modeled on section 504 of the
Rehabilitation Act.\408\ Title II of the ADA and section 504 are
generally understood to impose similar requirements, given the similar
language employed in the ADA and the Rehabilitation Act.\409\ The
legislative history of the ADA makes clear that title
[[Page 63458]]
II of the ADA was intended to extend the requirements of section 504 to
apply to all State and local governments, regardless of whether they
receive Federal funding, demonstrating Congress's intent that title II
and section 504 be interpreted consistently.\410\
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\407\ 42 U.S.C. 12132.
\408\ See, e.g., H. Rept. 101-485(II) at 84 (May 15, 1990).
\409\ See, e.g., 42 U.S.C. 12201(a).
\410\ See H. Rep. 101-485(II) at 84 (May 15, 1990).
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The Rehabilitation Act Amendments of 1992 revised the
Rehabilitation Act's findings, purpose, and policy provisions to
incorporate language acknowledging the discriminatory barriers faced by
persons with disabilities, and recognizing that persons with
disabilities have the right to ``enjoy full inclusion and integration
in the economic, political, social, cultural and educational mainstream
of American society.'' \411\ The legislative history to the
Rehabilitation Act Amendments of 1992 states that the purpose and
policy statement is ``a reaffirmation of the precepts of the Americans
with Disabilities Act,'' \412\ and that these principles are intended
to guide the Rehabilitation Act's policies, practices, and
procedures.\413\ Further, courts interpret these statutes
consistently.\414\ Thus, the Department believes there is and should be
parity between the relevant provisions of section 504 and title II of
the ADA. Because the Department is amending its existing, longstanding
regulation and not simply issuing a new regulation, it is necessary to
incorporate its revisions in several subparts of the existing
rule.\415\ The added or revised provisions are:
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\411\ 29 U.S.C. 701(a)(3)(F), as amended.
\412\ S. Rep. 102-357, at 14 (Aug. 3, 1992).
\413\ See id.; see also H.R. Rep. 102-822, at 81 (Aug. 10,
1992).
\414\ See supra note 243.
\415\ Where HHS has made changes to this section 504 regulation
to correspond to provisions in the Department of Justice's title II
regulation, HHS encourages individuals to look to the corresponding
title II guidance and section-by-section analysis for guidance on
how to interpret these provisions. See 28 CFR part 35, app. A, B, C.
Purpose and broad coverage (Sec. 84.1): Revisions to Subpart A
Application (Sec. 84.2): Revisions to Subpart A
Relationship to other laws (Sec. 84.3): Revisions to Subpart A
Definition of disability (Sec. 84.4): Revisions to Subpart A
Notice (Sec. 84.8): Revisions to Subpart A
Definitions (Sec. 84.10): Revisions to Subpart A
Employment (Sec. 84.16): Revisions to Subpart B
Program Accessibility (Sec. Sec. 84.21-84.23): Revisions to Subpart
C
Childcare, Preschool, Elementary and Secondary, and Adult Education
(Sec. Sec. 84.31, 84.38): Revisions to Subpart D
Health, Welfare, and Social Services (Sec. Sec. 84.51-84.55):
Revisions to Subpart F
Subpart G: General Requirements (Sec. Sec. 84.68-84.76)): New
subpart
General prohibitions against discrimination (Sec. 84.68)
Illegal use of drugs (Sec. 84.69)
Maintenance of accessible features (Sec. 84.70)
Retaliation and coercion (Sec. 84.71)
Personal devices and services (Sec. 84.72)
Service animals (Sec. 84.73)
Mobility devices (Sec. 84.74)
Direct threat (Sec. 84.75)
Integration (Sec. 84.76)
Subpart H: Communications (Sec. Sec. 84.77-84.81): New subpart
Subpart K: Procedures (Sec. 84.98)
Proposed Section 504 Regulations and Existing Requirements
Recipients of Federal financial assistance from HHS that are also
State and local governments (subject to title II of the ADA) and those
that are places of public accommodation (subject to title III of the
ADA) have been obligated to comply with the ADA title II and title III
regulations since 1991 when those regulations were promulgated. Most
entities covered by section 504 that are not covered by title II are
covered by title III. Accordingly, in most instances, this proposed
section 504 regulation is not imposing new requirements on recipients.
Rather, in such instances, it is aligning section 504 requirements with
existing ADA requirements to which many entities have been subject
since 1991.
The sections of the proposed regulation that track the ADA title II
and/or III regulations are: definition of ``disability,'' notice,
general prohibitions against discrimination, maintenance of accessible
features, retaliation and coercion, personal devices and services,
service animals, mobility devices, and communications. The following
sections are similar to the ADA title II and/or title III regulations:
purpose and broad coverage, definitions, program accessibility, illegal
use of drugs, direct threat, and integration.
Terminology
When the Department's section 504 regulation was issued in 1977, it
followed the terminology of the statute, using the word ``handicap''
and the phrase ``handicapped person.'' However, the Rehabilitation Act
Amendments of 1992 changed the term ``handicapped person'' to
``individual with a disability.'' The Department's proposed revisions
incorporate these terminology changes into its rules. The revisions
also include use of the phrase ``qualified individual with a
disability'' rather than the phrase ``qualified handicapped person.''
The terminology changes also include substitution of the phrase
``individual with a substance use disorder'' for ``drug addict'' and
``individual with an alcohol use disorder'' for ``alcoholic.'' In
making these changes as well as other similar ones, the Department is
merely updating terminology and intends no substantive change to its
interpretation of section 504 and its implementing regulation.
Sec. 84.1 Purpose and Broad Coverage: Revision to Subpart A
Proposed Sec. 84.1(a) states that the purpose of this part is to
implement section 504 of the Rehabilitation Act of 1973, as amended,
which prohibits discrimination on the basis of disability in programs
and activities receiving Federal financial assistance.
Proposed Sec. 84.1(b) states that the definition of ``disability''
in this part shall be construed broadly in favor of expansive coverage.
This is consistent with the ADAAA's purpose of reinstating a broad
scope of protection under the ADA and ensuring that the Rehabilitation
Act was interpreted consistently by including a conforming amendment
for section 504. The ADAAA amended the definition of disability
provisions of the ADA and applied the same new definitional provisions
to section 504.\416\ Congress passed the ADAAA to overturn Supreme
Court decisions that had too narrowly interpreted the ADA's definition
of disability.\417\ Those narrow interpretations resulted in the denial
of the ADA's protection for many individuals with impairments who
Congress intended to cover under the law. The ADAAA provides clear
direction about what ``disability'' means under the ADA and how it
should be interpreted so that covered individuals seeking the
protection of the ADA can establish that they have a disability.\418\
Section 84.4 sets forth the definition of the term. The ADAAA codified
the broad view of disability adopted by the Supreme Court in the
section 504 case, School Board of Nassau County v. Arline.\419\ To
ensure consistency in defining disability, the ADAAA includes a
conforming amendment for section 504's definition of disability to have
the ``same meaning'' as the ADA definition.\420\
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\416\ See 29 U.S.C. 705(20)(B); ADA Amendments Act of 2008,
Public Law 110-325 section 7(2) (2008).
\417\ See ADAAA section 2(a)(6), (b)(2)-(5) (2008).
\418\ ADAAA section 4(a) (2008).
\419\ 480 U.S. 273 (1987).
\420\ ADAAA section 7 (2008).
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In the ADAAA, Congress made clear that it intended the definition
of disability to be construed very broadly.\421\ The primary object of
attention, Congress said, should be ``whether entities covered under
the
[[Page 63459]]
ADA have complied with their obligations'' and whether discrimination
has occurred, not whether the individual meets the definition of
``individual with a disability.'' \422\ According to both the ADAAA
purpose provisions and the ADA regulations, this question of whether an
individual meets the definition of disability should not demand
extensive analysis.\423\
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\421\ 42 U.S.C. 12102(4)(A).
\422\ Id. at section 2.
\423\ 42 U.S.C. 12101; 28 CFR 35.101(b) and 35.108.
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Sec. 84.2 Application: Revisions to Subpart A
Paragraph (a) states that this part applies to the recipient's
programs or activities that involve individuals in the United States.
It does not apply to the recipient's programs and activities outside of
the United States that do not involve individuals with disabilities in
the United States.
Paragraph (b) states that the section 504 requirements do not apply
to ultimate beneficiaries of any program or activity receiving Federal
financial assistance. An ultimate beneficiary is a person who is
entitled to benefits from, or otherwise participates in, a program or
activity.
In paragraph (c), the Department proposes language addressing the
issue of severability. The provision states that, if any provision at
45 CFR part 84 is held to be invalid or unenforceable by its terms, or
as applied to any person or circumstance, it shall be construed to give
maximum effect to the provision permitted by law, unless such holding
shall be one of utter invalidity or unenforceability, in which case the
provision shall be severable from this part and shall not affect the
remainder thereof or the application of the provision to other persons
not similarly situated or to other dissimilar circumstances. The
Department seeks to ensure that, if a specific regulatory provision in
this rule is found to be invalid or unenforceable, the remaining
provisions of the rule will remain in effect.
Sec. 84.3 Relationship to Other Laws: Revisions to Subpart A
This section states that this part does not invalidate or limit
remedies, rights, and procedures of other laws that provide greater or
equal protection for the rights of individuals with disabilities or
those associated with them, such as the ACA and the Fair Housing Act.
The section is substantially similar to the corresponding section in
the ADA regulations at 28 CFR 35.103(b).
Sec. 84.4 Definition of Disability: Revisions to Subpart A
One of the main purposes of the ADAAA was 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 ADAAA revised the meaning and interpretation of the
definition of ``disability'' under section 504 to ensure that the term
is interpreted consistently with the ADAAA, Public Law 110-325 (2008),
and applied the same definitional provisions to section 504, id.
section 7(2). In this section, the Department incorporates the
definition contained in the ADA title II regulations at 28 CFR 35.108,
with modifications when the terminology about a particular disability
mentioned in the regulation has changed, including capitalizing certain
impairments; substituting ``autism spectrum disorder'' for ``autism'';
substituting ``substance use disorder'' for ``drug addiction''; and
substituting ``alcohol use disorder'' for ``alcoholism.'' In addition,
long COVID, a condition that did not exist when the ADA regulations
were published, has been added to the list of physical and mental
impairments.
This proposed regulation recodifies many of the sections in the
existing rule. Section 84.4 in the existing rule contains the general
prohibitions. Those general prohibitions now appear in Subpart G,
General Requirements, Sec. 84.68. Proposed Sec. 84.4 contains the
definition of ``disability.'' Similar redesignations in the numbering
of sections occur throughout the proposed regulation.
Section 84.4(a)--Disability
Proposed Sec. 84.4(a)(1) 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.''
Proposed Sec. 84.4(a)(2)(i) states that the definition of
``disability'' is to be construed broadly in favor of expansive
coverage to the maximum extent permitted by the terms of section 504.
Proposed Sec. 84.4(a)(2)(ii) provides that an individual can
establish coverage using any of the three prongs, the ``actual
disability'' in the first prong, the ``record of'' in the second prong,
or the ``regarded as'' in the third prong. The use of the word ``actual
disability'' is a shorthand for the first prong and is not meant to
suggest that individuals covered under the first prong have any more
rights than those covered by the second or third prongs, with the
exception that the ADAAA revised the ADA to expressly state that an
individual who meets the definition of ``disability'' solely under the
``regarded as'' prong is not entitled to reasonable modifications of
policies, practices, or procedures. See 42 U.S.C. 12201(h)).
Proposed Sec. 84.4(a)(2)(iii) indicates that consideration of
coverage under the first two prongs will generally be unnecessary
except when there has been a request for reasonable modifications.
Accordingly, absent a claim of a failure to provide reasonable
modifications, typically it is not necessary to rely on the ``actual
disability'' or ``record of'' disability prongs. Instead, in such
cases, coverage can be evaluated exclusively under the ``regarded as''
prong, which does not require a showing of an impairment that
substantially limits a major life activity or a record of such an
impairment. However, individuals can proceed under the first or second
prongs if they choose.
Section 84.4(b)--Physical or Mental Impairment
Proposed Sec. 84.4(b)(1) provides an illustrative and non-
exhaustive list of examples of physiological disorders or conditions,
cosmetic disfigurement, or anatomical loss affecting one or more body
systems that may be affected by a physical impairment. It also provides
an illustrative list of mental or psychological disorders. Section
84.4(b)(2) contains a non-exhaustive list of examples of physical or
mental impairments. The preamble to the ADA title II regulations
explains why there was no attempt made to set forth a comprehensive
list of physical and mental impairments. The preamble states that
``[i]t is not possible to include a list of all the specific
conditions, contagious and noncontagious diseases, or infections that
would constitute physical or mental impairments because of the
difficulty of ensuring the comprehensiveness of such a list,
particularly in light of the fact that other conditions or disorders
may be identified in the future.'' 28 CFR part 35, app. B. This
proposed section adopts that reasoning.
On July 26, 2021, DOJ and HHS issued guidance on how ``long COVID''
can be a disability under the ADA, section 504, and Section 1557.\424\
The
[[Page 63460]]
guidance notes that some people continue to experience symptoms that
can last months after first being infected with COVID-19 or may have
new or recurring symptoms at a later time.\425\ This can happen even if
the initial illness was mild. This condition, ``long COVID,'' can meet
the definition of ``disability'' if it, or one of the conditions that
results from it, satisfies one of the three prongs of the disability
definition.
---------------------------------------------------------------------------
\424\ See U.S. Dep't of Health & Human Servs., U.S. Dep't of
Justice, Guidance on ``Long COVID'' as a Disability Under the ADA,
section 504, and section 1557 (July 26, 2021), https://www.hhs.gov/civil-rights/for-providers/civil-rights-covid19/guidance-long-covid-disability/index.html.
\425\ As the CDC has described, ``Long COVID can last weeks,
months, or years after COVID-19 illness . . .'' See Long COVID or
Post-COVID Conditions, Centers for Disease Control and Prevention,
https://www.cdc.gov/coronavirus/2019-ncov/long-term-effects/
index.html#:~:text=For%20some%20people%2C%20Long%20COVID,over%20diffe
rent%20lengths%20of%20time (last updated Dec. 16, 2022).
---------------------------------------------------------------------------
The guidance states that long COVID is a physiological condition
affecting one or more body systems and is a physical or mental
impairment. For example, some people experience lung damage, heart
damage, kidney damage, neurological damage, damage to the circulatory
system resulting in poor blood flow, and/or mental health symptoms. It,
or its symptoms, can substantially limit one or more life activities.
For example, a person with lung damage that causes shortness of breath,
fatigue, and related effects is substantially limited in respiratory
function, among other major life activities. The inclusion of long
COVID as a physical or mental impairment aligns with DOJ's
interpretation under the ADA.
Section 84.4(b)(3) states that sexual orientation is not included
in the definition of physical or mental impairment. The Rehabilitation
Act at 29 U.S.C. 705(20)(E) contains a specific exclusion of
individuals on the basis of homosexuality or bisexuality. It states
that the term ``impairment'' does not include homosexuality or
bisexuality. Therefore, the term ``individual with a disability'' does
not include individuals who are homosexual or bisexual. The ADA
likewise states that homosexuality and bisexuality are not impairments
and, as such, are not disabilities. 42 U.S.C. 12211(a). The title II
regulations incorporate this exclusion in 28 CFR 35.108(b)(3).
Section 84.4(c)--Major Life Activities
The ADAAA significantly expanded the range of major life activities
by directing that ``major'' be interpreted in a more expansive fashion
than previously. It specified that major life activities include major
bodily functions, and provided non-exhaustive lists of examples of
major life activities. Proposed Sec. 84.4(c) incorporates the title II
regulation at 28 CFR 35.108(c). ``Major life activities'' includes not
only activities such as caring for oneself, seeing, hearing, and
walking, but also includes the operation of a major bodily function
such as the functions of the immune system, normal cell growth, and
reproductive systems.
Proposed Sec. 84.2(c)(1)(i) and (ii) list examples of major life
activities. The absence of a particular life activity or bodily
function from the lists should not create a negative implication as to
whether an activity or function is a major life activity.
Proposed Sec. 84.4(c)(2) sets forth two specific principles
applicable to major life activities. Proposed Sec. 84.4(c)(2)(i)
states that the term ``major'' should not be interpreted strictly.
Proposed Sec. 84.4(c)(ii) states that whether an activity is a ``major
life activity'' is not determined by reference to whether it is of
``central'' importance to daily life. This language is included to
align with the incorporation of the ADAAA in the ADA regulations and
the ADAAA's rejection of standards articulated in Toyota Motor
Manufacturing, Kentucky, Inc. v. Williams that (1) strictly interpreted
the terms ``substantially'' and ``major'' in the definition of
``disability'' to create a demanding standard for qualifying as
disabled under the ADA, and that (2) required an individual to have an
impairment that prevents or severely restricts the individual from
doing activities that are of central importance to most people's daily
lives.\426\
---------------------------------------------------------------------------
\426\ 534 U.S. 184 (2002).
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Section 84.4(d)--Substantially Limits
Proposed Sec. 84.4(d)(1) sets forth nine rules of construction
clarifying how to interpret the meaning of ``substantially limits''
when determining whether an individual's impairment substantially
limits a major life activity. The language in these provisions reflects
the rules of construction that Congress provided in the ADAAA.
Proposed Sec. 84.4(d)(1)(i) states that the term ``substantially
limits'' should be construed broadly in favor of expansive coverage to
the maximum extent permitted by section 504. This is not meant to be a
demanding standard.
Proposed Sec. 84.4(d)(1)(ii) states that the primary object of
attention should be whether entities have complied with their
obligations and whether discrimination occurred, not the extent to
which the impairment substantially limits a major life activity. Thus,
the threshold issue of whether an impairment substantially limits a
major life activity should not demand extensive analysis.
Proposed Sec. 84.4(d)(1)(iii) indicates that an impairment that
substantially limits just one major life activity is sufficient to be
considered a substantially limiting impairment. For example, an
individual seeking to establish coverage need not show a substantial
limit in the ability to learn if that individual is substantially
limited in another major life activity, such as walking or the
functioning of the nervous or endocrine systems. The proposed section
also is intended to clarify that where the major life activity is
something that may include a range of different activities (such as
manual tasks), the ability to perform some of those tasks does not
preclude a finding that the person is substantially limited in the
major life activity. For example, an individual with cerebral palsy
could have the capacity to perform certain manual tasks and be unable
to perform others. Such an individual still has a substantial
limitation in the ability to carry out the ``major life activity'' of
performing manual tasks.
Proposed Sec. 84.4(d)(1)(iv) states that an impairment that is
episodic or in remission is a disability if it would substantially
limit a major life activity when active. This section is intended to
reject the reasoning of court decisions concluding that certain
individuals with certain conditions--such as epilepsy or post-traumatic
stress disorder--were not protected by the ADA because their conditions
were episodic or intermittent.
The legislative history provides that ``[t]his . . . rule of
construction thus rejects the reasoning of the courts in cases like
Todd v. Academy Corp., where the court found that the plaintiff's
epilepsy, which resulted in short seizures during which the plaintiff
was unable to speak and experienced tremors, was not sufficiently
limiting, at least in part because those seizures occurred
episodically.\427\ It similarly rejects the results reached in cases
[such as Pimental v. Dartmouth-Hitchcock Clinic,] where the courts have
discounted the impact of an impairment [such as cancer] that may be in
remission as too short-lived to be substantially limiting.\428\ It is
thus expected that individuals with impairments that are episodic or in
remission (e.g., epilepsy, post-traumatic stress disorder, multiple
sclerosis, cancer) will be able to establish
[[Page 63461]]
coverage if, when active, the impairment or the manner in which it
manifests (e.g., seizures) substantially limits a major life
activity.'' \429\ This language incorporates the ADAAA's rejection of
court decisions finding that individuals with certain conditions such
as epilepsy or post-traumatic stress disorder were not protected
because their conditions were episodic or in remission.
---------------------------------------------------------------------------
\427\ 57 F. Supp. 2d 448, 453 (S.D. Tex. 1999).
\428\ Pimental v. Dartmouth-Hitchcock Clinic, 236 F. Supp. 2d
177, 182-83 (D.N.H. 2002).
\429\ H.R. Rep. No. 110-730, pt. 2, at 19-20 (2008) (House
Committee on the Judiciary).
---------------------------------------------------------------------------
Proposed Sec. 84.4(d)(1)(v) states that determinations as to
whether an impairment substantially limits a major life activity should
be based on a comparison to most people in the general population. The
impairment does not need to prevent, or significantly or severely
restrict an individual from performing a major life activity to be
considered substantially limiting. For example, an individual with the
physical impairment of carpal tunnel syndrome can demonstrate that the
impairment substantially limits the major life activity of writing even
if the impairment does not prevent or severely restrict the individual
from writing. However, not every impairment will constitute a
disability within the meaning of this section.
Proposed Sec. 84.4(d)(1)(vi) states that determination as to
whether an impairment substantially limits a major life activity
requires an individualized assessment. Additionally, the paragraph
requires that, in making this assessment, the term ``substantially
limits'' shall be interpreted and applied to require a standard of
functional limitation that is lower than that the standard applied
prior to the ADAAA. These rules of construction reflect Congress's
concern that prior to the adoption of the ADAAA, courts were using too
high a standard to determine whether an impairment substantially
limited a major life activity.\430\
---------------------------------------------------------------------------
\430\ See Public Law 110-325, sec. 2(b)(4)-(5); see also 154
Cong. Rec. S8841 (daily ed. Sept. 16, 2008) (Statement of the
Managers) (``This bill lowers the standard for determining whether
an impairment constitute[s] a disability and reaffirms the intent of
Congress that the definition of disability in the ADA is to be
interpreted broadly and inclusively.'').
---------------------------------------------------------------------------
Proposed Sec. 84.4(d)(1)(vii) states that comparison of an
individual's performance of a major life activity to the performance of
the same major life activity by most people in the general population
does not usually require scientific, medical, or statistical evidence.
This section seeks to prevent an overbroad, burdensome, and generally
unnecessary requirement on individuals seeking accommodations or
modifications. Other types of evidence that are less onerous to
collect, such as statements or affidavits of affected individuals,
school records, or determinations of disability status under other
statutes should, in most cases, be considered adequate to establish
that an impairment is substantially limiting. However, nothing in this
paragraph is intended to prohibit or limit the presentation of
scientific, medical, or statistical evidence where appropriate.
Proposed Sec. 84.4(d)(1)(viii) prohibits any consideration of the
ameliorative effects of mitigating measures when determining whether an
individual's impairment substantially limits a major life activity,
except for the ameliorative effects of ordinary eyeglasses or contact
lenses. The determination as to whether an individual's impairment
substantially limits a major life activity is unaffected by an
individual's choice to forego mitigating measures. For individuals who
do not use a mitigating measure (including, for example, medication or
auxiliary aids and services that might alleviate the effects of an
impairment), the availability of such measures has no bearing on
whether the impairment substantially limits a major life activity.
Proposed Sec. 84.4(d)(1)(ix) states that the six-month
``transitory'' part of the ``transitory and minor'' exception in Sec.
84.4(f)(2), the ``regarded as'' prong of the definition, does not apply
to the ``actual disability'' or ``record of'' prongs of the definition.
The effects of an impairment lasting or expected to last less than six
months can be substantially limiting within the meaning of this section
for establishing an actual disability or a record of a disability.
Whether an impairment is both ``transitory and minor'' is a question of
fact that is dependent upon individual circumstances.
Proposed Sec. 84.4(d)(2), Predictable assessments, states that the
rules of construction in this section are intended to provide a
generous and expansive application of the prohibition on
discrimination. Specific rules of construction are contained in
subsections discussing the definition of ``disability,'' Sec.
84.4(a)(2); ``major life activities,'' Sec. 84.4(c)(2); and
``substantially limits,'' Sec. 84.4(d)(1). Proposed Sec.
84.4(d)(2)(ii) states that the individualized assessment of some types
of impairments will, in virtually all cases, result in a determination
of coverage under the first prong of the definition (``actual
disability'') or the second prong (``record of''). Therefore, with
respect to these types of impairments, the necessary individualized
assessment should be particularly simple and straightforward and should
not demand extensive analysis.
Proposed Sec. 84.4(d)(2)(iii) contains a non-exhaustive list of
eleven types of impairments and the major life activity limited by
those impairments. The list illustrates impairments that virtually
always will result in a substantial limitation of one or more major
life activities. It is consistent with the Equal Employment Opportunity
Commission's (EEOC) predictable assessment list at 29 CFR
1630.2(g)(3)(iii), except that this section adds traumatic brain injury
to the list. The section is intended to provide clear, strong,
consistent, enforceable standards.
The absence of any particular impairment from the list of examples
of predictable assessments does not indicate that the impairment should
be subject to undue scrutiny. Also, the listed impairments may
substantially limit additional major life activities not explicitly
mentioned.
Proposed Sec. 84.4(d)(3), Condition, manner, or duration, provides
guidance on determining whether an individual is substantially limited
in a major life activity. The determination is intended to be an
appropriate threshold issue but not an onerous burden. However,
individuals can still offer evidence needed to establish that their
impairment is substantially limiting if they so desire. While
condition, manner, and duration are not required factors that must be
considered, to the extent that such factors may be useful or relevant,
some or all of the factors may be considered. However, evidence
relating to each of these factors often will not be necessary to
establish coverage.
Proposed Sec. 84.4(d)(3)(i) states that it may be useful to
consider as compared to most people in the general population, the
conditions under which the individual performs the major life activity;
the manner in which the individual performs the major life activity; or
the duration of time it takes the individual to perform the major life
activity, or for which the individual can perform the major life
activity.
Proposed Sec. 84.4(d)(3)(ii) sets forth examples of the types of
evidence that might demonstrate condition, manner, or duration
limitations, including the way that an impairment affects the operation
of a major bodily function, the difficulty or effort required to
perform a major life activity, the pain experienced when performing a
major life activity, and the length of time it takes to perform a major
life activity. The section clarifies that the non-ameliorative effects
of mitigating measures may be taken into account to
[[Page 63462]]
demonstrate the impact of an impairment on a major life activity. These
non-ameliorative effects could include negative side effects of
medicine, burdens associated with following a particular treatment
regimen, and complications arising from surgery.
An impairment may substantially limit the ``condition'' or
``manner'' in which a major life activity can be performed in a number
of ways. For example, it may refer to how the individual performs a
major life activity, e.g., the condition or manner under which a person
with an amputated hand performs manual tasks will likely be more
cumbersome than the way that most people in the general population
would perform the same tasks. The terms may also describe how
performance of a major life activity affects an individual with an
impairment. For example, an individual whose impairment causes more
pain or fatigue than most people would experience when performing that
major life activity may be substantially limited. The condition or
manner under which someone with coronary artery disease performs the
major life activity of walking would be substantially limited if the
individual experiences shortness of breath and fatigue when walking
distances that most people could walk without experiencing such
effects.
Condition or manner may refer to the extent to which a major life
activity, including a major bodily function, can be performed. In some
cases, the condition or manner under which a major bodily function can
be performed may be substantially limited when the impairment causes
the operation of a bodily function to over-produce or under-produce in
a harmful fashion. For example, the pancreas, which is part of the
endocrine system, of a person with type 1 diabetes does not produce
sufficient insulin. For that reason, compared to most people in the
general population, the impairment of diabetes substantially limits the
major bodily functions of endocrine function and digestion.
``Duration'' refers to the length of time an individual can perform
a major life activity or the length of time it takes an individual to
perform a major life activity, as compared to most people in the
general population. For example, a person whose back or leg impairment
precludes them from standing for more than two hours without
significant pain would be substantially limited in standing, because
most people can stand for more than two hours without significant pain.
Some impairments, such as Attention-Deficit/Hyperactivity Disorder
(ADHD) may have two different types of impact on duration
considerations. ADHD frequently affects both an ability to sustain
focus for an extended period of time and the speed with which someone
can process information. Each of these duration-related concerns could
demonstrate that someone with ADHD, as compared to most people in the
general population, takes longer to complete major life activities such
as reading, writing, concentrating, or learning.
Proposed Sec. 84.4(d)(3)(iii) states that in determining whether
an individual has a disability under the ``actual disability'' or
``record of'' prongs, the focus should be on how a major life activity
is substantially limited, and not on what outcomes an individual can
achieve. For example, someone with a learning disability may achieve a
high level of academic success, but may nevertheless be substantially
limited in one or more of the major life activities of reading,
writing, speaking, or learning because of the additional time or effort
that he or she must spend to read, speak, write, or learn compared to
most people in the general population.
Proposed Sec. 84.4(d)(3)(iv) clarifies that analysis of condition,
manner, or duration will not always be necessary, particularly with
respect to certain impairments that can easily be found to
substantially limit a major life activity such as those included in the
list of impairments contained in Sec. 84.4(d)(2)(iii). However, should
an individual seeking coverage under the first or second prong wish to
offer evidence establishing that their impairment is substantially
limiting, they should be permitted to do so.
Proposed Sec. 84.4(d)(1)(viii) described earlier makes clear that
ameliorative effects of mitigating measures must not be considered when
determining whether an impairment substantially limits a major life
activity except that the ameliorative effects of ordinary eyeglasses or
contact lenses must be considered. Proposed Sec. 84.4(d)(4) provides a
non-exclusive list of mitigating measures that may not be considered.
As in Sec. 84.4(d)(1)(viii), this section reiterates the exception for
eyeglasses or contact lenses, stating that mitigating measures include
``low-vision devices,'' defined as devices that magnify, enhance, or
otherwise augment a visual image, but not including ordinary eyeglasses
or contact lenses. The absence of any particular measure from this list
should not convey a negative implication as to whether it is a
mitigating measure.
Section 84.4(e)--Has a Record of Such an Impairment
Proposed Sec. 84.4(e)(1) states that an individual meets the
second prong of the definition of disability, the ``record of'' prong,
if the individual has a history of, or has been misclassified as
having, a mental or physical impairment that substantially limits one
or more major life activities. An example of the first group (those who
have a history of an impairment) is a person with a history of mental
or emotional illness or cancer who is denied entry to a program based
on their record of disability. An example of the second group (those
who have been misclassified as having an impairment) is an individual
who does not have an intellectual or developmental disability, but has
been misclassified as having that disability. There could be a
violation of Sec. 84.4(e)(1) if a recipient acts based on a ``record
of'' disability. Proposed Sec. 84.4(e)(2) states that whether an
individual meets this prong shall be construed broadly to the maximum
extent permitted by section 504. The determination should not demand
extensive analysis.
There are many types of records that could potentially contain
information demonstrating a record of an impairment, including but not
limited to, education, medical, or employment records. However, past
history need not be reflected in a specific document. Any evidence that
an individual has a past history of an impairment that substantially
limited a major life activity is all that is needed to establish
coverage under this prong. An individual can meet this prong even if
the recipient does not specifically know about the relevant record.
However, the individual with a ``record of'' a substantially limiting
impairment must prove that the recipient discriminated on the basis of
the record of a disability.
Individuals who are covered under the ``record of'' prong may be
covered under the first prong of the definition of ``disability'' as
well. This is because an individual with an impairment that is episodic
or in remission can be protected under the first prong if the
impairment would be substantially limiting when active. For example, a
person with cancer that is in remission is covered under the first
``actual disability'' prong because he has an impairment that would
substantially limit normal cell growth when active. He also is covered
under the ``record of'' prong because of his history of having had an
impairment that substantially limited normal cell growth.
Proposed Sec. 84.4(e)(3) provides that an individual who falls
within this prong
[[Page 63463]]
may be entitled reasonable modifications. For example, a student with a
record of an impairment that previously was substantially limiting, but
no longer substantially limits a major life activity, may need
permission to miss a class or have a schedule change as a reasonable
modification that would permit him or her to attend follow-up or
monitoring appointments from a health care provider.
Section 84.4(f)--Is Regarded as Having Such an Impairment
The third prong of the definition of disability, ``regarded as
having such an impairment,'' was included in the ADA specifically to
protect individuals who might not meet the first two prongs of the
definition but were subject to adverse decisions based upon unfounded
concerns, mistaken beliefs, fears, myths, or prejudices about persons
with disabilities. 42 U.S.C. 12102(3). The third prong was later
amended by the ADAAA. Consistent with this amended version, proposed
Sec. 84.4(f)(1) states that an individual is regarded as having an
impairment if the individual is subjected to a prohibited action
because of an actual or perceived physical or mental impairment,
whether or not that impairment substantially limits, or is perceived to
substantially limit a major life activity, even if the recipient
asserts, or may or does ultimately establish, a defense to the action
prohibited by section 504.
The rationale for this prong was articulated by the Supreme Court
in a case involving section 504, School Board of Nassau County v.
Arline.\431\ The Court noted that although an individual may have an
impairment that does not diminish their physical or mental
capabilities, it could ``nevertheless substantially limit that person's
ability to work as a result of the negative reactions of others to the
impairment.'' \432\ Thus, individuals seeking section 504 protection
under this third prong only had to show that some action prohibited by
the statute was taken because of an actual or perceived impairment. At
the time of the Arline decision, there was no requirement that the
individual demonstrate that they, in fact had or were perceived to
have, an impairment that substantially limited a major life activity.
For example, if a childcare center refused to admit a child with burn
scars because of the presence of those scars, then the childcare center
regarded the child as an individual with a disability, regardless of
whether the child's scars substantially limited a major life activity.
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\431\ 480 U. S. 273 (1987).
\432\ Id. at 283.
---------------------------------------------------------------------------
In Sutton v. United Air Lines, Inc., the Supreme Court
significantly narrowed application of this prong, holding that
individuals who asserted coverage under the ``regarded as'' prong had
to establish either that the covered entity mistakenly believed that
the individual had a physical or mental impairment that substantially
limited a major life activity, or that the covered entity mistakenly
believed that ``an actual, nonlimiting impairment substantially
limit[ed] a major life activity'' when in fact the impairment was not
so limiting.\433\ Congress expressly rejected this standard in the
ADAAA by amending the ADA to clarify that it is sufficient for an
individual to establish that the covered entity regarded him or her as
having an impairment, regardless of whether the individual actually has
the impairment or whether the impairment constitutes a disability under
the Act.\434\ This amendment restores Congress's intent to allow
individuals to establish coverage under the ``regarded as'' prong by
showing that they were treated adversely because of an actual or
perceived impairment without having to establish the covered entity's
beliefs concerning the severity of the impairment.\435\
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\433\ 527 U.S. 471, 489 (1999).
\434\ 42 U.S.C. 12102(3)(A).
\435\ See H.R. Rep. No. 110-730, pt. 2, at 18 (2008).
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This clarification of the ``regarded as'' prong by the ADAAA
responded primarily to narrow interpretations of the ADA but ensured
that the same amendments were made to 504 since the definitions were
intended to be the same.
Thus, it is not necessary for an individual to demonstrate that a
recipient perceived him as substantially limited in the ability to
perform a major life activity to meet the ``regarded as'' requirements.
Nor is it necessary to demonstrate that the impairment relied on by a
recipient is (in the case of an actual impairment) or would be (in the
case of a perceived impairment) substantially limiting for an
individual to be ``regarded as having such an impairment.'' In short,
to be covered under this prong, an individual is not subject to any
functional test. The concepts of ``major life activities'' and
``substantial limitation'' are not relevant in evaluating whether an
individual meets this prong.
Proposed Sec. 84.4(f)(2) states that an individual is not
``regarded as'' having an impairment if the recipient demonstrates that
the impairment is, objectively, both ``transitory'' and ``minor.'' It
is not enough for a recipient to simply demonstrate that it
subjectively believed that the impairment was transitory and minor;
rather, the recipient must demonstrate that it is (in the case of an
actual impairment) or would be (in the case of a perceived impairment),
objectively, both ``transitory'' and ``minor.'' For purposes of this
section, ``transitory'' is defined as lasting or expected to last six
months or less. This section makes clear that the ``transitory and
minor'' exception to a claim under this prong is a defense to a claim
of discrimination and not part of the individual's prima facie case.
For example, an individual with a minor back injury could be ``regarded
as'' an individual with a disability if the back impairment lasted or
was anticipated to last more than six months.
The relevant inquiry is whether the actual or perceived impairment
is objectively ``transitory and minor,'' not whether the recipient
claims it subjectively believed the impairment was transitory or minor.
Moreover, as an exception to the general rule for broad coverage under
the ``regarded as'' prong, this limitation on coverage should be
construed narrowly. For example, a school that expelled a student whom
it believes has Bipolar Disorder cannot take advantage of this
exception by asserting that it believed the student's impairment was
transitory and minor, because Bipolar Disorder is not objectively
transitory and minor. It is important to note that the six-month
``transitory'' part of the ``transitory and minor'' exception does not
apply to the ``actual disability'' or ``record of'' prongs of the
disability definition.
Proposed Sec. 84.4(f)(3) provides that an individual who is
``regarded as'' having an impairment does not establish liability based
on that showing alone. Instead, the individual must prove that the
recipient discriminated on the basis of disability within the meaning
of section 504. This provision was intended to make clear that to
establish liability, an individual must establish coverage as a person
with a disability, as well as establish that they had been subjected to
an action prohibited by section 504.
Section 84.4(g)--Exclusions
Proposed Sec. 84.4(g), is taken directly from the Rehabilitation
Act, 29 U.S.C. 705(20)(F), and is consistent with similar exclusions
contained in the ADA.\436\ The section states that the term
``disability'' does not include:
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\436\ 42 U.S.C. 12211.
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[[Page 63464]]
(1) transvestism, transsexualism, pedophilia, exhibitionism,
voyeurism, gender identity disorders not resulting from physical
impairments, or other sexual behavior disorders;
(2) compulsive gambling, kleptomania, or pyromania; or
(3) psychoactive substance use disorders resulting from current
illegal use of drugs.
The issue of gender identity disorders was recently addressed by
the Fourth Circuit in Williams v. Kincaid, a case brought under both
section 504 and the ADA.\437\
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\437\ Williams v. Kincaid, 45 F. 4th 759 (4th Cir. 2022), cert.
denied, 600 U.S. _(U.S. June 30, 2023)(No. 22-633).
---------------------------------------------------------------------------
The Fourth Circuit reversed and remanded the district court's
dismissal of the case, holding that the plaintiff ``has plausibly
alleged that gender dysphoria does not fall within section 504's and
the ADA's exclusion for ``gender identity disorders not resulting from
physical impairments.'' \438\ The court noted that the term ``gender
dysphoria,'' was not used in section 504 or the ADA nor in the then
current version of the Diagnostic and Statistical Manual of Mental
Disorders (DSM). In 2013, the phrase was changed in the DSM from
``gender identity disorder'' to ``gender dysphoria,'' a revision that
the court said was not just semantic but reflected a shift in medical
understanding. Under the court's reasoning, gender dysphoria is not
included in the scope of ``gender identity disorder'' and is thus not
excluded from coverage under the ADA or section 504.\439\
Alternatively, the court held that even if gender dysphoria were a
gender identity disorder, the exclusion would not apply in this case
because the plaintiff's complaint ``amply supports [the] inference[]''
that her gender dysphoria ``result[s] from a physical
impairment.''.\440\
---------------------------------------------------------------------------
\438\ Id. at 780.
\439\ Id. at 769.
\440\ Id. at 773-774 (citing 42 U.S.C. 12211(b)); see also id.
at 770-772.
---------------------------------------------------------------------------
Recognizing ``Congress' express instruction that courts construe
the ADA in favor of maximum protection for those with disabilities,''
\441\ the court said that it saw ``no legitimate reason why Congress
would intend to exclude from the ADA's protections transgender people
who suffer from gender dysphoria.'' \442\ The Department agrees that
restrictions that prevent, limit, or interfere with otherwise qualified
individuals' access to care due to their gender dysphoria, gender
dysphoria diagnosis, or perception of gender dysphoria may violate
section 504.
---------------------------------------------------------------------------
\441\ Id. at 769-70.
\442\ Id. at 773.
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Sec. 84.10 Definitions: Revisions to Subpart A
Proposed Sec. 84.10 contains the definitions. These definitions
are revised to correspond to the ADA title II regulations, to delete
terminology that is obsolete, to revise or add certain terms to
incorporate statutory changes to the Rehabilitation Act, to add terms
used in new sections specific to the Department, and to make other
minor edits.
To ensure consistency of terminology between section 504 and title
II of the ADA and include additional terms that are needed in the
proposed rule, the Department is proposing to add definitions of the
following terms: ``2004 ADA Accessibility Guidelines (ADAAG),'' ``2010
Standards,'' ``ADA,'' ``Architectural Barriers Act,'' ``Archived web
content,'' ``Auxiliary Aids and Services,'' ``Companion,''
``Conventional electronic documents,'' ``Current illegal use of
drugs,'' ``Direct threat,'' ``Disability,'' ``Drug,'' ``Existing
facility,'' ``Foster care, '' ``Illegal use of drugs,'' ``Individual
with a disability,'' ``Kiosks,'' ``Medical diagnostic equipment,''
``Mobile applications (apps),'' ``Most integrated setting,'' ``Other
power-driven mobility device,'' ``Parents,'' ``Prospective parents,''
``Qualified individual with a disability,'' ``Qualified interpreter,''
``Qualified reader,'' ``Service animal,'' ``Standards for Accessible
Medical Diagnostic Equipment,'' ``State,'' ``Ultimate beneficiary,''
``Video remote interpreting (VRI) services,'' ``WCAG 2.1,'' ``Web
content,'' and ``Wheelchair.''
Terms added without change from the title II ADA regulations are:
``2004 ADA Accessibility Guidelines,'' ``2010 Standards,'' ``Auxiliary
aids and services,'' ``Current illegal use of drugs,'' ``Direct
threat,'' ``Disability,'' ``Drug,'' ``Existing facility,''
``Facility,'' ``Illegal use of drugs,'' ``Individual with a
disability,'' ``Other power-driven mobility device,'' ``Qualified
individual with a disability,'' ``Qualified interpreter,'' ``Qualified
reader,'' ``section 504,'' ``Service animal,'' ``State,'' ``Video
Remote Interpreting (VRI),'' and ``Wheelchair.''
Terms added without change from the Department of Justice title II
NPRM, ``Nondiscrimination on the Basis of Disability: Accessibility of
Web Information and Services of State and Local Government Entities''
are: ``Archived web content,'' ``Conventional electronic documents,''
``Mobile applications (apps),'' ``WCAG 2.1,'' and ``Web content.''
The Department proposes to remove ``The Act,'' ``Education of the
Handicapped Act,'' ``Handicap,'' ``Handicapped person,'' and
``Qualified handicapped person.'' The Department proposes to retain and
make minor revisions to the following terms: ``Applicant for
assistance,'' (changed to ``Applicant''), ``Federal financial
assistance,'' ``Program or activity,'' and ``section 504.''
The definition of ``Federal financial assistance'' in the existing
rule states that Federal financial assistance means ``any grant,
cooperative agreement, loan, contract (other than a procurement
contract or a contract of insurance or guaranty) . . . .'' The proposed
revision adds ``direct Federal'' so that it reads ``(other than a
direct Federal procurement contract or a contract of insurance or
guaranty''). No substantive change is intended.
Finally, the Department proposes to retain with no revisions the
terms ``Recipient,'' ``Director,'' and ``Department.''
New definitions of note are discussed below.
``Archived Web Content''
The Department proposes to add a definition for ``archived web
content'' to proposed Sec. 84.10. The proposed definition defines
``archived web content'' as ``web content that (1) is maintained
exclusively for reference, research, or recordkeeping; (2) is not
altered or updated after the date of archiving; and (3) is organized
and stored in a dedicated area or areas clearly identified as being
archived.'' The definition is meant to capture web content that, while
outdated or superfluous, is maintained unaltered in a dedicated area on
a recipient's website for historical, reference, or other similar
purposes, and the term is used in the proposed exceptions set forth in
Sec. 84.85. Throughout this rule, a recipient's ``website'' is
intended to include not only the websites hosted by the recipient, but
also websites operated on behalf of a recipient by a third party. For
example, recipients sometimes use vendors to create and host their web
content. Such content would also be covered by this rule.
``Auxiliary Aids and Services''
This section, added to be consistent with the title II regulations,
sets forth a non-exhaustive list of auxiliary aids and services that
reflect the latest technology and devices available in some places that
may provide effective
[[Page 63465]]
communication in some situations.\443\ The Department does not intend
to require that every recipient provide every device or all new
technology at all times as long as the communication that is provided
is as effective as communication with others.
---------------------------------------------------------------------------
\443\ The voice, text, and video-based communications included
in the definition for auxiliary aids and services include
Telecommunication Relay Services (such as internet Protocol Relay
Services) and Video Relay Services.
---------------------------------------------------------------------------
``Companion''
This phrase, added to be consistent with the title II regulations,
means a family member, friend, or associate of an individual seeking
access to a program or activity of a recipient, who, along with such
individual, is an appropriate person with whom the recipient should
communicate.
``Conventional Electronic Documents''
The Department proposes to add a definition for ``conventional
electronic documents.'' The proposal defines ``conventional electronic
documents'' as ``web content or content in mobile apps that is in the
following electronic file formats: portable document formats (PDFs),
word processor file formats, presentation file formats, spreadsheet
file formats, and database file formats.'' The definition thus provides
an exhaustive list of electronic file formats that constitute
conventional electronic documents. Examples of conventional electronic
documents include: Adobe PDF files (i.e., portable document formats),
Microsoft Word files (i.e., word processor files), Apple Keynote or
Microsoft PowerPoint files (i.e., presentation files), Microsoft Excel
files (i.e., spreadsheet files), and FileMaker Pro or Microsoft Access
files (i.e., database files).
The term ``conventional electronic documents'' is intended to
describe those documents created or saved as an electronic file that
are commonly available on recipients' websites and mobile apps in
either an electronic form or as printed output. The term is intended to
capture documents where the version posted by the recipient is not open
for editing by the public. For example, if a recipient maintains a Word
version of a flyer on its website, that would be a conventional
electronic document. A third party could technically download and edit
that Word document, but their edits would not impact the ``official''
posted version. Similarly, a Google Docs file that does not allow
others to edit or add comments in the posted document would be a
conventional electronic document. The term ``conventional electronic
documents'' is used in proposed Sec. 84.85(b) to provide an exception
for certain electronic documents created by or for a recipient that are
available on a recipient's website before the compliance date of this
rule and in proposed Sec. 84.85(g) to provide an exception for certain
individualized, password-protected documents, and is addressed in more
detail in the discussion regarding proposed Sec. 84.85(b) and (g).
Definitions (conventional electronic documents) Question
1: The Department's definition of ``conventional electronic documents''
consists of an exhaustive list of specific file types. Should the
Department instead craft a more feasible definition that generally
describes the types of documents that are covered or otherwise change
the proposed definition, such as by including other file types (e.g.,
images or movies), or removing some of the listed file types?
``Current Illegal Use of Drugs''
This phrase, added to be consistent with the title II regulations,
means illegal use of drugs that occurred recently enough to justify a
reasonable belief that the person's drug use is current or that
continuing use is a real and ongoing problem.
``Direct Threat''
The definition of ``direct threat'' under section 504 was added to
be consistent with the title II regulations and with the Supreme Court
case of School Board of Nassau County v. Arline,\444\ which states that
a ``direct threat'' is 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. In Arline, a case interpreting section 504, the Supreme Court
recognized that there is a need to balance the interests of people with
disabilities against legitimate concerns for public safety.
---------------------------------------------------------------------------
\444\ 480 U.S. 273 (1987).
---------------------------------------------------------------------------
Although persons with disabilities are generally entitled to the
protection of this part, a person who poses a significant risk to
others constituting a direct threat will not be ``qualified'' if
reasonable modifications to the recipient's policies, practices, or
procedures will not eliminate that risk. The determination that a
person poses a direct threat to the health or safety of others may not
be based on generalizations or stereotypes about the effects of a
particular disability.\445\ It must be based on an individualized
assessment, based on reasonable judgment that relies on current medical
evidence or on the best available objective evidence, to determine: the
nature, duration, and severity of the risk; the probability that the
potential injury will actually occur; and whether reasonable
modifications of policies, practices, or procedures will mitigate the
risk.\446\ This is the test established by the Supreme Court in Arline.
Such an inquiry is essential if the law is to achieve its goal of
protecting disabled individuals from discrimination based on prejudice,
stereotypes, or unfounded fear, while giving appropriate weight to
legitimate concerns, such as the need to avoid exposing others to
significant health and safety risks. Making this assessment will not
usually require the services of a physician. Sources for medical
knowledge include guidance from public health authorities, such as the
U.S. Public Health Service, the Centers for Disease Control and
Prevention (CDC), and the National Institutes of Health, including the
National Institute of Mental Health.\447\
---------------------------------------------------------------------------
\445\ 28 CFR pt. 35, app. B (1991) (addressing Sec. 35.139).
\446\ Id.
\447\ Id.
---------------------------------------------------------------------------
Specific provisions concerning ``direct threat'' are derived from
the ADA title II regulations and are contained in the proposed Direct
threat section at Sec. 84.75.
``Disability''
The ADAAA was passed to revise the meaning and interpretation of
the definition of ``disability'' and to ensure that the definition is
broadly construed and applied without extensive analysis. The
definition of ``disability'' can be found at Sec. 84.4. With respect
to employment, the definition of ``disability'' is found at the
regulations of the EEOC at 29 CFR 1630.2.
``Foster Care''
The term means 24-hour substitute care for children placed away
from their parents or guardians and for whom the State agency has
placement and care responsibility. This includes, but is not limited
to, placements in foster family homes, foster homes of relatives, group
homes, emergency shelters, residential facilities, childcare
institutions, and preadoptive homes. A child is in foster care in
accordance with this definition regardless of whether the foster care
facility is licensed and payments are made by the State or local agency
for the care of the child, whether adoption
[[Page 63466]]
subsidy payments are being made prior to the finalization of an
adoption, or whether there is Federal matching of any payments that are
made. Foster care providers include individuals and institutions. The
proposed rule makes clear where the language applies specifically to
foster parents. The proposed definition is consistent with the
definition of ``foster care'' in the Department's title IV-E foster
care program regulations at 45 CFR 1355.20.
``Illegal Use of Drugs''
The term, added for consistency with title II of the ADA, means the
use of one or more drugs, the possession or distribution of which is
unlawful under the Controlled Substances Act (21 U.S.C. 812 et seq.).
The term does not include the use of a drug taken under supervision by
a licensed health care professional, or other uses authorized by the
Controlled Substances Act or other provisions of Federal law. Specific
provisions are contained in the Illegal use of drugs section at Sec.
84.69.
The definitions section includes ``drug,'' which means a controlled
substance, as defined in schedules I through V of section 202 of the
Controlled Substances Act (21 U.S.C. 812 et seq.). Also defined is
``current illegal use of drugs'' which means the illegal use of drugs
that occurred recently enough to justify a reasonable belief that a
person's drug use is current or that continuing use is a real and
ongoing problem.
``Kiosks''
The Department proposes to add a definition of ``kiosks.'' Kiosks
are self-service transaction machines made available by recipients at
set physical locations for the independent use of patients or program
participants in health or human service programs or activities. The
devices usually consist of a screen and an input device, either a
keyboard, touch screen or similar device, onto which the program
participant independently types in or otherwise enters requested
information. In health and human service programs, recipients often
make kiosks available so that patients or program participants can
check in, provide information for the receipt of services, procure
services, have their vital signs taken, or perform other similar
actions. These devices may rely on web content or mobile apps or may be
closed functionality devices, i.e., devices that do not rely on web
content or mobile apps.
Definitions (kiosks) Question 2: The Department requests
comment on whether a definition of ``kiosks'' is necessary, and if so,
requests comment on the Department's proposed definition in Sec. 84.10
and any suggested revisions to it.
``Medical Diagnostic Equipment''
The term ``medical diagnostic equipment'' (MDE) comes from Section
510 of the Rehabilitation Act and means equipment used in, or in
conjunction with, medical settings by health care providers for
diagnostic purposes.\448\ It includes, for example, examination tables,
examination chairs (including those used for eye examinations or
procedures and for dental examinations or procedures), weight scales,
mammography equipment, x-ray machines, and other radiological equipment
commonly used for diagnostic purposes by health care professionals.
---------------------------------------------------------------------------
\448\ 29 U.S.C. 794f.
---------------------------------------------------------------------------
``Mobile Applications (Apps)''
Mobile apps are software applications that are downloaded and
designed to run on mobile devices such as smartphones and tablets. For
the purposes of this part, mobile apps include, for example, native
apps built for a particular platform (e.g., Apple iOS, Google Android,
among others) or device and hybrid apps using web components inside
native apps.
``Most Integrated Setting''
The most integrated setting is described in Appendix B to the
regulation implementing title II of the ADA as ``a setting that enables
individuals with disabilities to interact with nondisabled persons to
the fullest extent possible.'' \449\ As further described in DOJ's
``Guidance on Enforcement of the Integration Mandate of Title II of the
Americans with Disabilities Act and Olmstead v. L.C.,'' integrated
settings provide individuals with disabilities the opportunity to
interact with non-disabled persons to the fullest extent possible; are
located in mainstream society; offer access to community activities and
opportunities at times, frequencies and with persons of an individual's
choosing; and afford individuals choice in their daily life
activities.\450\ The Department proposes to adopt this language as its
definition for ``most integrated setting.''
---------------------------------------------------------------------------
\449\ 28 CFR pt. 35 app. B, 690 (2015) (addressing Sec.
35.130(d)).
\450\ U.S. Dep't of Justice, Statement of the Department of
Justice on Enforcement of the Integration Mandate of Title II of the
Americans with Disabilities Act and Olmstead v. L.C. (2020), https://www.ada.gov/olmstead/q&a_olmstead.htm (last visited Feb. 12, 2023).
---------------------------------------------------------------------------
Definitions (most integrated setting) Question 3: The
Department requests comment on the need to include additional language
in the definition of ``most integrated setting.''
``Other Power-Driven Mobility Device''
The term ``other power-driven mobility device'' (OPDMD) is a term
of art coined by DOJ in its regulations implementing the ADA at 28 CFR
35.104. It covers any mobility device powered by batteries, fuel, or
other engines, whether or not designed primarily for use by individuals
with mobility disabilities, that is used by individuals with mobility
disabilities for the purpose of locomotion. Common OPDMD's include golf
carts, electronic personal assistance mobility devices such as the
Segway[supreg], or other mobility devices designed to operate in areas
without defined pedestrian routes but that is not a wheelchair within
the meaning of this section.
``Parents''
The terms ``parents'' means biological or adoptive parents or legal
guardians as determined by applicable State law. For purposes of this
section, ``prospective parents'' means individuals who are seeking to
become foster or adoptive parents. The proposed definition is based on
the definition of ``parents'' in the Social Security Act title IV-
E.\451\
---------------------------------------------------------------------------
\451\ 42 U.S.C. 675.
---------------------------------------------------------------------------
``Qualified Individual With a Disability''
The Department proposes to replace the term and definition of
``qualified handicapped person'' with the term ``qualified individual
with a disability'' and the corresponding definition drawn from title
II of the ADA. The introduction of the definition from the Department's
title II regulation will ensure consistency with title II of the ADA.
Paragraph (1) states that except as provided in paragraph (2), a
``qualified individual with a disability'' is an individual with a
disability who, with or without reasonable modifications to rules,
policies, or practices, the removal of architectural, communication, or
transportation barriers, or the provision of auxiliary aids and
services, meets the essential eligibility requirements for the receipt
of services or the participation in programs or activities provided by
the recipient.
Paragraph (2) provides the definition of qualified individual with
a disability in the employment context. The language tracks the
corresponding EEOC provision at 29 CFR 1630.2(m) because the meaning of
``qualified'' is different in an employment context as compared to a
nonemployment context. The employment portion of the definition
[[Page 63467]]
incorporates the EEOC definition of ``qualified,'' thereby implementing
the employment standards of title I of the ADA in accordance with
section 503(b) of the Rehabilitation Act Amendments of 1992, at 29
U.S.C. 791(f).
Paragraph (3) sets forth the definition with respect to childcare,
preschool, elementary and secondary, and adult educational services.
The definition in Sec. 84.3 of the existing regulations limits the
definition to public preschool, elementary, secondary, or adult
education services. That rule makes a distinction between requirements
for recipients that operate public elementary and secondary education
programs and activities (Sec. 84.32 and 84.33) and recipients who
provide private education (Sec. 84.39). The proposed rule is not
retaining those provisions and makes no distinction between public and
private programs or activities. Accordingly, the reference to
``public'' is deleted from this definition. It should be noted that the
application section at Sec. 84.31, which is being retained with the
addition of ``childcare,'' states that the subpart applies to all
preschool, elementary and secondary, and adult education and does not
limit the coverage to public programs and activities. The requirement
that the entity be public is contained only in the sections dealing
specifically with recipients who operate elementary and secondary
programs, sections that are not retained in the proposed rule.
Paragraph (4) provides the definition with respect to postsecondary
education.
``Qualified Interpreter''
This definition is added for consistency with title II of the ADA.
A qualified interpreter must be able to interpret effectively,
accurately, and impartially. Qualified interpreters include sign
language interpreters, oral transliterators, and cued-language
transliterators.
This list of interpreters is illustrative. Different situations
require different types of interpreters. For example, an oral
interpreter who has special skill and training to mouth a speaker's
words silently for individuals who are deaf or hard of hearing may be
necessary for an individual who was raised orally and taught to read
lips or was diagnosed with hearing loss later in life and does not know
sign language. An individual who is deaf or hard of hearing may need an
oral interpreter if the speaker's voice is unclear, if there is a
quick-paced exchange of communications (e.g., in a meeting), or when
the speaker does not directly face the individual who is deaf or hard
of hearing. A cued-speech interpreter functions in the same manner as
an oral interpreter except that they use a hand code or cue to
represent each speech sound. The guiding criterion is that the
recipient must provide appropriate auxiliary aids and services to
ensure effective communication.
In addition to sign language interpreters, the illustrative list in
the definition includes ``cued-language transliterators'' and ``oral
transliterators.'' A cued-language transliterator is an interpreter who
has special skill and training in the use of the Cued Speech system of
handshapes and placements, along with non-manual information, such as
facial expression and body language, to show auditory information
visually, including speech and environmental sounds. An oral
transliterator is an interpreter who has special skill and training to
mouth a speaker's words silently for individuals who are deaf or hard
of hearing.
``Qualified Reader''
This definition is added for consistency with the ADA. A qualified
reader is a person who is able to read effectively, accurately, and
impartially using any necessary specialized vocabulary. Failure to
provide a qualified reader to an individual with a disability may
constitute a violation of the requirement to provide appropriate
auxiliary aids and services.
To be ``qualified,'' a reader must be skilled in reading the
language and subject matters and must be able to be easily understood
by the individual with a disability. For example, if a reader is
reading aloud the questions for a college microbiology examination,
that reader, to be qualified, must know the proper pronunciation of
scientific terminology used in the text, and must be sufficiently
articulate to be easily understood by the individual with a disability
for whom he or she is reading.
``Service Animal''
This definition was added for consistency with the ADA. Service
animals, which are limited to dogs, must be individually trained to do
work or perform tasks for the benefit of an individual with a
disability. The work and tasks must be directly related to the
individual's disability. This includes alerting individuals who are
deaf or hard of hearing to the presence of people or sounds and
providing non-violent protection or rescue work. The phrase ``non-
violent protection'' is used to exclude so-called ``attack dogs'' or
dogs with traditional ``protection training'' as service animals. The
crime-deterrent effect of a dog's presence, by itself, does not qualify
as work or tasks for purposes of the definition. The crime deterrent
effects of an animal's presence and the provision of emotional support,
well-being, comfort, or companionship do not constitute work or tasks
for the purposes of the definition.
``Standards for Accessible Medical Diagnostic Equipment''
The Department proposes that the term ``Standards for Accessible
Medical Diagnostic Equipment'' means the standards at 36 CFR part 1195,
promulgated by the Architectural and Transportation Barriers Compliance
Board (Access Board) under section 510 of the Rehabilitation Act of
1973, as amended, found in the Appendix to 36 CFR part 1195.
``Video Remote Interpreting Service (VRI)''
This definition was added for consistency with the ADA. Video
remote interpreting services are a means of providing interpreting
services for persons who are deaf or hard of hearing that use video
conference technology over dedicated lines or wireless technologies
offering high-speed, wide-bandwidth video connection that delivers
high-quality video images.
``WCAG 2.1''
The Department proposes to add a definition of ``WCAG 2.1.'' The
term ``WCAG 2.1'' refers to the 2018 version of the voluntary
guidelines for web accessibility, known as the Web Content
Accessibility Guidelines 2.1 (WCAG). The W3C[supreg], the principal
international organization involved in developing standards for the
web, published WCAG 2.1 in June 2018, and it is available at https://www.w3.org/TR/WCAG21/.\452\ WCAG 2.1 is discussed in more detail in
proposed Sec. 84.84.
---------------------------------------------------------------------------
\452\ See W3C[supreg], Web Content Accessibility Guidelines 2.1
(June 5, 2018), https://www.w3.org/TR/WCAG21/ [https://perma.cc/UB8A-GG2F].
---------------------------------------------------------------------------
``Web Content''
The Department proposes to add a definition for ``web content''
that is based on the WCAG 2.1 definition but is slightly less technical
and intended to be more easily understood by the public generally. The
Department's proposal defines ``web content'' as ``information or
sensory experience--including the encoding that defines the content's
structure, presentation, and interactions--that is communicated to the
user by a web browser or other software. Examples of web content
include text, images, sounds, videos, controls, animations, and
conventional
[[Page 63468]]
electronic documents.'' WCAG 2.1 defines web content as ``information
and sensory experience to be communicated to the user by means of a
user agent, including code or markup that defines the content's
structure, presentation, and interactions.'' \453\
---------------------------------------------------------------------------
\453\ See W3C[supreg], Web Content Accessibility Guidelines 2.1
(June 5, 2018), https://www.w3.org/TR/WCAG21/#glossary [https://perma.cc/YB57-ZB8C].
---------------------------------------------------------------------------
The definition of ``web content'' attempts to describe the
different types of information and experiences available on the web.
The Department's NPRM proposes to cover the accessibility of
recipients' web content available on public entities' websites and web
pages regardless of whether the web content is viewed on desktop
computers, laptops, smartphones, or other devices.
The definition of ``web content'' also includes the encoding used
to create the structure, presentation, or interactions of the
information or experiences on web pages that range in complexity from,
for example, pages with only textual information to pages where users
can complete transactions. Examples of languages used to create web
pages include Hypertext Markup Language (HTML), Cascading Style Sheets
(CSS), Python, SQL, PHP, and JavaScript.
Definitions (web content) Question 4: Are there
refinements to the definition of ``web content'' the Department should
consider? Consider, for example, WCAG 2.1's definition of ``web
content'' as ``information and sensory experience to be communicated to
the user by means of a user agent, including code or markup that
defines the content's structure, presentation, and interactions.''
``Wheelchair''
The proposed rule adopts the definition of wheelchair used by the
DOJ in its ADA rules. It defines wheelchair as a manually-operated or
power-driven device designed primarily for use by an individual with a
mobility disability for the main purpose of indoor, or of both indoor
and outdoor locomotion.
Sections Retained
This proposed rule is retaining existing sections on (1) Assurances
(Sec. 84.5); (2) Remedial action, voluntary action, and self-
evaluation (Sec. 84.6); and (3) Designation of responsible employee
and adoption of grievance procedures (Sec. 84.7). The Notice section
(Sec. 84.8) has been revised to be consistent with the title II
regulations. It states that a recipient must make available to all
employees, applicants, participants, beneficiaries, and other
interested persons information regarding the provisions of this part
and its applicability to the programs or activities of the recipient,
and make such information available to them in such manner as the head
of the recipient or his or her designee finds necessary to apprise such
persons of the protections against discrimination assured them by
section 504 and this part.
It is also retaining Administrative requirements for small
recipients, Sec. 84.9. That section states that recipients with fewer
than 15 employees need not comply with the Designation of responsible
employee and adoption of grievance procedures section or the Notice
section unless the Director determines that compliance is appropriate
because of a finding of a violation or a finding that such compliance
will not significantly impair the ability of the recipient to provide
benefits or services.
Employment Practices: Revisions to Subpart B
Proposed Sec. 84.16 lists the general prohibitions in employment
practices. This proposed rule replaces the existing employment section
at Sec. 84.11. Paragraph (a) states that no qualified individual with
a disability shall be subjected to discrimination on the basis of
disability. The Rehabilitation Act Amendments of 1992, Public Law 102-
569 (Oct. 29,1992), amended title V of the Rehabilitation Act to apply
the employment standards set forth in title I of the ADA to employment
discrimination under section 504.\454\ Paragraph (b) implements this
requirement. It states that the standards to be used in determining
whether the section has been violated shall be the standards applied
under title I of the ADA of 1990 and sections 501 through 504 and 511
of the ADA, as amended (codified at 42 U.S.C. 12201-12204, 12210), as
implemented in the EEOC's regulation at 29 CFR part 1630. This
employment section recognizes the potential for jurisdictional overlap
that exists with respect to laws prohibiting discrimination in
employment. The EEOC enforces title I of the ADA and, under E.O. 12067,
has the responsibility for coordinating and leading the Federal
Government's efforts to eradicate workplace discrimination. The
Department of Labor enforces section 503 of the Rehabilitation Act; and
at least 25 Federal agencies that provide financial assistance are
responsible for enforcing section 504 in their programs. Section 107 of
the ADA requires that coordination mechanisms be developed in
connection with the administrative enforcement of complaints alleging
discrimination under title I and complaints alleging discrimination in
employment in violation of the Rehabilitation Act. This provision
ensures that Federal investigations of title II and section 504
complaints will be coordinated on a government-wide basis.
---------------------------------------------------------------------------
\454\ 29 U.S.C. 794(d). See also 29 CFR pt. 1630 (Regulations to
Implement the Equal Opportunity Provisions of the ADA); 29 CFR pt.
1640 (Procedures for Coordinating the Investigation of Complaints or
Charges of Employment Discrimination Based on Disability Subject to
the Americans with Disabilities Act and section 504 of the
Rehabilitation Act of 1973.
---------------------------------------------------------------------------
Program Accessibility: Revisions to Subpart C
Section 84.21 states that except as provided in Sec. 84.22, no
qualified individual with a disability shall, because a recipient's
facilities are inaccessible to or unusable by individuals with
disabilities, be excluded from participation in, or be denied the
benefits of the programs or activities of a recipient, or be subjected
to discrimination by any recipient. This subpart addresses
accessibility to the built environment with two approaches: (1)
providing standards for new construction and alterations, and (2)
applying the concept of program access for programs or activities
carried out in new as well as previously existing facilities, even when
those facilities are not directly controlled by the recipient. For
example, where a recipient hospital contracts out certain health care
activities to another entity, and those activities are inaccessible,
then the recipient hospital may have impermissibly denied qualified
individuals with disabilities the benefits of the programs and
activities and subjected those individuals to discrimination.
The Department's existing rule at Sec. 84.22, which is retained in
part in the proposed rule, states that a recipient is not required to
make each of its existing facilities accessible if its program as a
whole is accessible. Access to a program may be achieved by a number of
means, including reassignment of services to already accessible
facilities, redesign of equipment, delivery of services at alternate
accessible sites and, if necessary, structural changes.
Section 84.22(a)(2), which mirrors the ADA title II regulation and
the section 504 regulations for federally conducted programs, provides
that in meeting the program accessibility requirement, a recipient is
not required to take any action that would result in a fundamental
alteration in the program
[[Page 63469]]
or activity or undue financial and administrative burdens. A similar
limitation is provided in Sec. 84.22 (Existing facilities), Sec.
84.81 (Communications), Sec. 84.88 (Web, mobile, and kiosk
accessibility), and Sec. 84.93 (Accessible medical equipment.)
This paragraph does not establish an absolute defense: it does not
relieve a recipient of all obligations to individuals with
disabilities. Although a recipient is not required to take actions that
would result in a fundamental alteration in the nature of a program or
activity or undue financial and administrative burdens, it nevertheless
must take any other steps necessary to ensure that individuals with
disabilities receive the benefits or services provided by the
recipient.
It is the Department's view that compliance with Sec. 84.22(a),
like compliance with the corresponding provisions of the ADA title II
regulation and the section 504 regulations for federally conducted
programs, would in most cases not result in undue financial and
administrative burdens on a recipient. In determining whether financial
and administrative burdens are undue, all recipient resources available
for use in the funding and operation of the program or activity should
be considered. The burden of proving that compliance with Sec.
84.22(a) would fundamentally alter the nature of a program or activity
or would result in undue financial and administrative burdens rests
with the recipient.
The decision that compliance would result in such alterations or
burdens must be made by the head of the recipient or their designee and
must be accompanied by a written statement of the reasons for reaching
that conclusion. The Department recognizes the difficulty of
identifying the official responsible for this determination, given the
variety of organizational forms that may be taken by recipients and
their components. The intention of this paragraph is that the
determination must be made by a high level official or senior leader
who has budgetary authority and responsibility for making spending
decisions.
Section 84.22 (b), methods, is identical to the title II provision
at 28 CFR 35.150 (b) and, with minor changes, the existing section 504
regulation at Sec. 84.22(b). Any differences between this proposed
section and the existing section are intended to be non-substantive.
The proposed rule retains provisions based in the existing rule
relating to small health, welfare, or other social services providers
(Sec. 84.22(c)); time period for compliance (Sec. 84.22(d));
transition plan (Sec. 84.22(e)); and notice (Sec. 84.22(f)).
The requirements for new construction and alterations, set forth in
Sec. 84.23, are more stringent than Sec. 84.22, which contains the
requirements for existing facilities. Section 84.23(a)), Design and
construction, requires each facility or part of a facility constructed
by, on behalf of, or for the use of a recipient to be designed and
constructed in such a manner that the facility or part of the facility
is ``readily accessible to and usable by'' individuals with
disabilities, if the construction was commenced after June 3, 1977.
Section 84.23(b), Alterations, states that each facility or part of
a facility constructed by, on behalf of, or for the use of a recipient
that affects or could affect the usability of the facility or part of
the facility, shall, to the maximum extent feasible, be altered in such
a manner that the altered portion is readily accessible and usable by
individuals with disabilities, if the alteration was commenced after
June 3, 1977.
Section 84.23(c) addresses accessibility standards and compliance
dates for recipients that are public entities. The term ``public
entities'' is derived from DOJ's ADA title II regulation and is
incorporated in subsection (c)(1) and means any State or local
government; any department, agency, special purpose district, or other
instrumentality of a State or states or local government; and The
National Railroad Passenger Corporation, and any commuter authority (as
defined in section 103(8) of the Rail Passenger Service Act). (45
U.S.C. 541). Section 84.23(d) addresses accessibility standards and
compliance dates for recipients that are private entities. The term
``private entities'' is derived from DOJ's ADA title III regulation and
is incorporated in subsection (d)(1) and means any person or entity
other than a public entity.
Section 84.23(c)(1) states that as of January 18, 1991, design,
construction, or alteration of buildings in conformance with sections
3-8 of the Uniform Federal Accessibility Standards (UFAS) \455\ shall
be deemed to comply with the requirements of Sec. 84.23(a). When the
Department first issued its section 504 rule in 1977, it included a
different standard, the ANSI (American National Standard Institute's
Specifications for Making Buildings and Facilities Accessible to, and
Usable by, the Physically Handicapped), known as ANSI A117.1-
1961(R1971). This standard covered facilities built or altered during
the time period from June 3, 1977 until January 18, 1991. In 1990, the
Department changed its standard to sections 3-8 of the Uniform Federal
Accessibility Standards (``UFAS'') and applied the standard to all
facilities constructed by recipients of HHS funding after January 18,
1991.
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\455\ Appendix A to 41 CFR 101-19.6 (July 1, 2002 ed.), 49 FR
31528, app. A (Aug. 7, 1984).
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In its regulations implementing the ADA, DOJ adopted more up-to-
date and comprehensive accessibility standards, first the 1991 ADA
Accessibility Guidelines (ADAAG) Standards and then the 2010 ADAAG
Standards. For example, the 2010 Standards contain requirements for
children's facilities, standards for a series of recreation facilities,
higher requirements for the number of accessible entrances, and more
detailed provisions on accessible toilet facilities. In addition, these
Standards are written in a different format that follows the approach
of private accessibility standards that are commonly used in state and
local building codes. Under title II of the ADA, these Standards apply
to all public entities; under title III of the ADA, these Standards
apply to a wide range of private entities, including hospitals, the
offices of health care providers, pharmacies, childcare centers, senior
citizen centers, homeless shelters, food banks, adoption agencies, or
other social service center establishments. Therefore, these Standards
have applied to many recipients of HHS funding for many years.\456\
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\456\ For private entities subject to title III of the Americans
with Disabilities Act, any facility designed and constructed for
first occupancy after January 26, 1993, would be required to meet
the accessibility requirements of DOJ's 1991 Accessibility
Standards. 28 CFR 36.401. For such facilities for which the start of
physical construction or alterations occurred on or after March 15,
2012, the facility would be required to meet DOJ's 2010
Accessibility Standards. 28 CFR 36.406(a).
For public entities subject to title II of the Americans with
Disabilities Act, any facility, where construction was commenced
after January 26, 1992, would be required to meet the accessibility
requirements of either UFAS or the DOJ's 1991 Accessibility
Standards, excluding the elevator exemption. 28 CFR 35.151(a). For
such facilities where the physical construction commenced on or
after March 15, 2012, the facility would be required to meet the
accessibility requirements of DOJ's 2010 Accessibility Standards. 28
CFR 35.151(c).
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In this rule, the Department seeks to use the Standards currently
used in the ADA: the 2010 Standards. The 2010 Standards for Accessible
Design consist of the 2004 ADAAG and the requirements contained in 28
CFR 35.151. To avoid making this regulation overly cumbersome, the
Department incorporates the components of the 2010 Standards (that is,
the 2004
[[Page 63470]]
ADAAG and 28 CFR part 151, as defined in Sec. 84.10 of this rule) by
reference. Sections (c) and (d) clarify the considerations for choosing
between UFAS and the 2010 Standards for new construction and
alterations. Unlike the Department's previous provision for new
construction in Sec. 84.23, which used a ``deeming'' approach, Sec.
84.23(c)(5) and (d)(5) of the amended rule, which will apply to
physical construction or alterations that commence on or after one year
from the publication date of the final rule in the Federal Register,
will require recipients to comply with the 2010 Standards. Section
84.23(c)(2) and (3) and (d)(2) and (3) of the amended rule, which will
apply to physical construction and alterations that commenced before
the rule's effective date, will still use the ``deeming'' approach.
Section 84.23(c)(4) and (d)(4) of the amended rule, which will apply to
physical construction or alterations that commence (or, in certain
situations set forth in Section (d)(4), construction or alterations
that are permitted) on or after the effective date of the final rule
and before the date one year from the publication date of the final
rule in the Federal Register, will require recipients to comply either
with UFAS or the 2010 Standards. This will make the Department's
approach under section 504 parallel to the approach under the ADA.
Similar to its approach in the existing section 504 regulation, the
Department will allow recipients that are public entities to depart
from particular technical and scoping requirements by the use of other
methods where those methods provide equivalent or greater access to and
usability of the building or facility.
One of the major advantages of using the 2010 Accessibility
Standards rather than UFAS is that the 2010 Standards have been
harmonized with private sector codes that form the basis for many State
and local building codes. In addressing building accessibility, HHS
recipients must now comply with local and State building codes as well
as UFAS--distinct bodies of regulation that in many instances impose
overlapping and sometimes inconsistent requirements. Because the 2010
Standards were designed to harmonize with other accessibility codes,
HHS recipients will face less confusion and difficulty in determining
how to undertake alterations to existing facilities or to construct new
facilities. In addition, the 2010 Standards are much more complete,
providing specific requirements for certain types of facilities,
including medical care facilities and social service care
establishments, and providing specific guidance on the types of
features in buildings, such as standards for toilet rooms, assembly
areas, and accessible routes both within a facility and from outside
features like parking areas and public transportation stops. The new
Standards also include technical requirements based on children's
dimensions and anthropometrics.
The Department proposes that this new Standard will take effect on
the effective date of this rule, which is 60 days after the publication
date in the Federal Register.
To address how recipients of Federal financial assistance from the
Department should address construction standards for projects that are
being built during a variety of time periods, the proposed rule offers
a detailed blueprint on how construction should proceed. The series of
scenarios detailed in Sec. 84.23(c) follow the approach used by the
DOJ in its 2010 regulation implementing the ADA at 28 CFR 35.151(c).
For example, proposed Sec. 84.23(c)(3) states that physical
construction or alterations that commence after January 18, 1991, but
before the effective date of the final rule, will be deemed in
compliance with the new construction obligation if the recipient's
construction meets the requirements of UFAS. Under proposed Sec.
84.23(c)(4), if the construction commences after the effective date of
the final rule but before one year from that publication date, the
recipient will be in compliance if it follows either UFAS or the 2010
Standards. (However, if the recipient is also covered by the ADA, it
will be required by the ADA and the proposed regulation to follow the
2010 Standards.) All new construction and alterations projects that
start physical construction one year from the publication date in the
Federal Register, i.e., this date for which the last application for a
building permit is certified as complete, must follow the 2010
Standards. This approach is necessary because of the delays that often
occur in the construction process between the design process and the
permitting and actual construction process.
Program Accessibility and the ``Safe Harbor'' Under Sec. 84.22(g)
The adoption of a new standard for accessible buildings and
facilities necessitates a change to the Department's existing
regulation for existing facilities. The ``program accessibility''
requirement in regulations implementing section 504 requires that each
program or activity, when viewed in its entirety, be readily accessible
to and usable by individuals with disabilities.\457\ Section 504
requires recipients' programs and activities to be accessible in their
entirety, and recipients generally have flexibility in how to address
accessibility issues or barriers as long as program access is achieved.
Program access does not necessarily require a recipient to make each of
its existing facilities accessible to and usable by individuals with
disabilities, and recipients are not required to make structural
changes to existing facilities where other methods are effective in
achieving program access.\458\ Recipients do, however, have program
access considerations that are independent of, but may coexist with,
requirements imposed by new construction or alteration requirements in
those same facilities.
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\457\ 45 CFR 84.21-22.
\458\ See id.
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Where a recipient opts to alter existing facilities to comply with
its program access requirements, the recipient must look to the
accessibility requirements in Sec. 84.23(c). Under the Department's
rule, these alterations will be required to comply with the 2010
Standards. The 2010 Standards introduce technical and scoping
specifications for many elements not covered by UFAS, the Department's
existing standard. In existing facilities, these supplemental
requirements need to be taken into account by a recipient in ensuring
program access. Also included in the 2010 Standards are revised
technical and scoping requirements for a number of elements that were
addressed in earlier standards. These revised requirements reflect
incremental changes that were added either because of additional study
by the Access Board or to harmonize Federal access requirements with
those of private model codes.
Although the program accessibility standard offers recipients a
level of discretion in determining how to achieve program access, in
the NPRM, the Department proposes to follow the lead established by DOJ
in its ADA regulations and include an addition to the existing
facilities requirements, a new paragraph, Sec. 84.22(g), entitled
``Safe harbor,'' to clarify that if a recipient has constructed or
altered elements in accordance with the specifications of UFAS (or for
facilities constructed or altered under ANSI), such recipient is not,
solely because of the Department's proposed use of the 2010 Standards,
required to retrofit such elements to reflect incremental changes in
the
[[Page 63471]]
proposed standards. In these circumstances, the recipient would be
entitled to a safe harbor for the already compliant elements until
those elements are altered. The safe harbor does not negate a
recipient's new construction or alteration obligations; it must comply
with the new construction or alteration requirements in effect at the
time of the construction or alteration. With respect to existing
facilities designed and constructed after the effective date of the
first section 504 regulation, but before the recipients were required
to comply with the 2010 Standards (between June 3, 1977 and one year
from the publication date of this NPRM in final in the Federal
Register), the rule is that any elements in these facilities that were
not constructed in conformance with accessibility requirements are in
violation of section 504 and must be brought into compliance. See
proposed Sec. 84.23(a), (c)(5), and (d)(5). Similarly, if elements in
existing facilities were altered during this time period, and those
alterations were not made in conformance with the alteration
requirements in effect at the time, then those alteration violations
must be corrected. See proposed Sec. 84.23(b), (c)(5), and (d)(5).
Section 84.23(g) states that nothing in this section relieves
recipients whose facilities are covered by the Architectural Barriers
Act from their responsibility of complying with that Act.
Section 84.23(h) sets forth requirements with regard to mechanical
rooms.
Childcare, Preschool, Elementary and Secondary, and Adult Education:
Revisions to Subpart D
The proposed rule clarifies two sections from the existing
regulation: Sec. 84.31, Application, and Sec. 84.38, Preschool and
adult education. The existing application section states that it
applies to adult education among other things, but childcare is not
mentioned. However, the existing Sec. 84.38 refers both to day care
(which was intended to include childcare) and adult education. We
propose to add childcare to Sec. 84.31, the application section, since
the regulation was intended to broadly reach any form of childcare,
whether or not it would be considered ``day care.'' We also propose to
change the heading of Sec. 84.38 to ``Childcare, preschool, and adult
education'' to reflect the text of the section. In addition, we propose
to add Child Care and Adult Education to the subpart heading to reflect
what is contained in the two sections we are retaining. Other sections
in the existing regulation concerning elementary and secondary
education are reserved.
HHS administers the largest Federal funding source for childcare
through the Child Care and Development Fund (CCDF) and provides
significant Federal financial assistance to early childhood education
through Early Head Start, Head Start, and the Preschool Development
Birth through Five (PDG B-5) programs.
Although ``day care'' is included in the existing Sec. 84.38, in
recent years, there has been national attention to the lack of
availability and accessibility of inclusive childcare and preschool for
children with disabilities. Section 504 follows the precedent set by
other civil rights laws based on the receipt of Federal funds, most
prominently, Title VI of the Civil Rights Act of 1964, and Title IX of
the Education Amendments of 1972. Thus, section 504 applies to
recipients of Federal funding, including public or private preschools,
childcare centers, family childcare homes, and other entities that
receive Federal funds including through a grant, loan, contract, or
voucher.\459\
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\459\ See, e.g., Grove City Coll. v. Bell, 465 U.S. 555 (1988)
(addressing Title IX, the Supreme Court held that the method by
which the assistance reached the entity operating a program or
service was not determinative of whether the assistance was Federal
financial assistance under the Spending Clause civil rights
statutes. The Court held that Basic Educational Opportunity Grants
were Federal financial assistance to a college, even though the
grants were dispersed to students, who in turn used those funds for
education-related expenses).
---------------------------------------------------------------------------
The proposed regulation clarifies existing obligations for
childcare providers under subpart D of section 504 (childcare,
preschool, elementary and secondary, and adult education.) Childcare
providers must also comply with obligations in subpart A (general), B
(employment), C (program accessibility), F (health, welfare, and social
services), G (general requirements), H (communications), and I (web and
mobile accessibility), subparts that apply to all recipients. The
Department is aware that some childcare providers that receive
financial assistance from HHS may not be familiar with these
obligations.\460\
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\460\ Because childcare providers are covered by both titles II
and III of the ADA, the obligations of this proposed regulation will
be coextensive with the existing disability rights obligations for
most childcare entities, except for those private childcare entities
that are controlled and operated by a religious entity and are
exempt from coverage by the ADA.
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Child Care, Preschool, Elementary and Secondary, and Adult
Education Question 1: The Department wants to better understand
potential impacts of the proposed rule on these recipients and requests
comment on the application of the proposed rule to childcare providers
and any potential barriers to compliance.
Upon finalizing this regulation, the Department would provide
additional guidance to childcare providers to ensure that they
understand the requirements of these provisions.
In January 2020, the Center for American Progress (CAP) issued a
report, ``The Child Care Crisis Disproportionately Affects Children
With Disabilities.'' Analyzing the 2016 Early Childhood Program
Participation Survey and a combined sample of the 2016-2018 National
Survey of Children's Health, as well as family interviews, CAP found
that ``compared with parents of nondisabled children, a larger
proportion of parents with disabled children experience at least some
difficulty finding care (34 percent vs. 25 percent).'' \461\ These
parents face many barriers to care, ``including a lack of available
slots, scheduling challenges, and concerns about quality.'' \462\
``Compared with parents of nondisabled children, parents of young
children with disabilities are three times more likely to experience
job disruptions because of problems with childcare.'' \463\
---------------------------------------------------------------------------
\461\ Ctr. for Am. Progress, The Child Care Crisis
Disproportionately Affects Children With Disabilities, (Jan. 29,
2020), https://www.americanprogress.org/article/child-care-crisis-disproportionately-affects-children-disabilities/.
\462\ Id.
\463\ Id.
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In 2015, the Department and the Department of Education issued a
joint ``Policy Statement on Inclusion of Children With Disabilities in
Early Childhood Programs'' that cited the ADA and section 504 as part
of the legal foundation for inclusion.\464\ The Department stated that
``all young children with disabilities should have access to inclusive
high-quality early childhood programs, where they are provided with
individualized and appropriate support in meeting high expectations.''
In 1997, DOJ issued guidance titled ''Commonly Asked Questions About
Child Care Centers and the Americans with Disabilities Act,'' \465\
which set forth requirements for childcare services, programs, and
activities covered by title II of the ADA and privately-run childcare
centers covered by title III of the ADA. The
[[Page 63472]]
guidance provides that, barring an applicable limitation, childcare
centers must make reasonable modifications to their policies,
practices, and procedures to integrate children, parents, and guardians
with disabilities into their programs unless their presence would pose
a direct threat to the health or safety of others or require a
fundamental alteration of the program. In addition, centers must make
reasonable modifications to their policies and practices to integrate
children, parents, and guardians with disabilities into their programs
unless doing so would constitute a fundamental alteration. Centers must
generally make their facilities accessible to persons with
disabilities. Existing facilities are subject to the readily achievable
standard for barrier removal, while newly constructed facilities and
any altered portions of existing facilities must be fully accessible.
---------------------------------------------------------------------------
\464\ U.S. Dep't of Health & Hum. Servs., U.S. Dep't of Ed.,
Policy Statement on Inclusion of Children with Disabilities in Early
Childhood Programs (Sept. 14, 2015), https://www2.ed.gov/policy/speced/guid/earlylearning/joint-statement-full-text.pdf.
\465\ U.S. Dep't of Justice, Commonly Asked Questions About
Child Care Centers and the Americans with Disabilities Act (2020),
https://www.ada.gov/childqanda.htm (last accessed Feb. 15, 2023).
---------------------------------------------------------------------------
In past years, OCR has received several complaints about
discrimination on the basis of disability in childcare services. For
example, OCR investigated a complaint filed by the parent of a child
with autism spectrum disorder who was denied an opportunity to
participate in the childcare program based on the child's disability.
The childcare center committed to a corrective action plan aimed at
remedying its discriminatory policy, including a requirement to provide
staff training and to implement a grievance procedure. In another
complaint, a child with a disability was denied enrollment in a
childcare program because he needed assistance with toileting.
Following the complaint, the program revised its policies. Diapering,
medication assistance, and the need for one-on-one support are common
reasons children with disabilities are denied enrollment. These
complaints demonstrate that some covered childcare entities lack
awareness of their obligations to comply with section 504. By
explicitly including ``childcare'' providers in the regulatory
language, the Department clarifies obligations for these recipients.
Recipients generally are subject to all the general and specific
prohibitions against discrimination contained at proposed Sec. 84.68
as well as the specific prohibition applicable to childcare and early
education programs in Sec. 84.38. Accordingly, recipients must provide
auxiliary aids and services; make reasonable modifications to their
policies, practices, and procedures; and integrate children, parents,
and guardians with disabilities into their programs. The question of
what is a ``reasonable modification'' will depend on a number of
factors including the size of the entity, the types of services
provided at the center, and staffing demands. For example, as explained
in DOJ's ``Commonly Asked Questions About Child Care Centers and the
Americans with Disabilities Act'' guidance document, ``[c]enters that
provide personal services such as diapering or toileting assistance for
young children must reasonably modify their policies and provide
diapering services for older children who need it due to a disability.
Generally speaking, centers that diaper infants should diaper older
children with disabilities when they would not have to leave other
children unattended to do so.'' However, if the program never provides
toileting assistance to any child, the program is not required to do so
for a child with a disability.\466\
---------------------------------------------------------------------------
\466\ Id.
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The Department is retaining current subpart E, Postsecondary
Education.
Health, Welfare, and Social Services: Revisions to Subpart F
The Department proposes to retain Sec. 84.51, Application, as well
as the general prohibitions in Sec. 84.52(a) and the notice
requirement in Sec. 84.52(b). It is deleting paragraph (c), concerning
emergency treatment of [individuals who are deaf or hard of hearing]
and paragraph (d) concerning auxiliary aids, and is substituting in
their place proposed new subpart H, Sec. Sec. 84.77-84.81,
Communications.\467\ That subpart provides detailed requirements for
communications and is not limited to requirements with regard to
auxiliary aids.
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\467\ Throughout the regulation, brackets are used to indicate
substitution of an obsolete word or phrase, unless they are being
used in a direct quotation.
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The Department also proposes to retain Sec. 84.53, which states
that a recipient that operates a general hospital or outpatient
facility may not discriminate in admission or treatment against an
individual with a [substance use disorder] who is suffering from a
medical condition, because of the person's [substance use disorder].
The Appendix states that the section was included ``pursuant to section
407, Public Law 92-255, the Drug Abuse Office and Treatment Act of 1972
(21 U.S.C. 1174), as amended, and section 321, Public Law 901-616, the
Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and
Rehabilitation Act of 1970 (42 U.S.C. 4581), as amended, and section
321, Public Law 93-282.'' It notes that the section prohibits
discrimination against [individuals with substance use disorders] not
just by hospitals as in section 407 of the Drug Abuse Office and
Treatment Act but it also includes outpatient facilities ``because of
the broader application of section 504.'' \468\
---------------------------------------------------------------------------
\468\ 45 CFR part 84, app. A (addressing Sec. 84.53).
---------------------------------------------------------------------------
Health, Welfare, and Social Services Question 1: The
Department seeks comment on whether the application of the section
should extend beyond hospitals (including inpatient, long-term
hospitals, and psychiatric hospitals) and outpatient facilities. If so,
what types of treatment programs, providers, or other facilities should
be included in this section?
This section should be read in conjunction with Sec. 84.69,
Illegal use of drugs.
The Department proposes to retain Sec. 84.54, Education of
institutionalized persons, which provides that individuals with
disabilities who are institutionalized must be provided with an
appropriate education. The existing regulation states that the
appropriate education must be consistent with Sec. 84.33(b), a section
not retained in this rule. In its place, the proposed rule references
the section 504 regulations of the Department of Education, 34 CFR
104.33(b).
The Department is also retaining paragraphs (a) and (f) of Sec.
84.55, Procedures relating to health care for [infants with
disabilities]. Paragraphs (b)-(e) are not retained because they are
subject to an injunction prohibiting their enforcement. In Bowen v.
American Hospital Association, the Supreme Court upheld the action of
the United States District Court declaring invalid and enjoining
enforcement of those provisions.\469\
---------------------------------------------------------------------------
\469\ 476 U.S. 610 (1986), (aff'g Am. Hosp. Ass'n v. Heckler,
585 F. Supp. 541 (S.D.N.Y. 1984).
---------------------------------------------------------------------------
Paragraph (a) encourages, but does not require, that recipients
that provide health care services to infants establish an Infant Care
Review Committee (ICRC) to assist the provider in delivering health
care services to infants. The committee would assist in the development
of standards, policies, and procedures for providing treatment to
infants with disabilities and in making decisions concerning medically
beneficial treatment in specific cases. The ICRC should be composed of
individuals representing a broad range of perspectives and should
include a practicing physician, a representative of a disability
organization, a practicing nurse, and other individuals. A suggested
model ICRC is set forth in paragraph (f).
[[Page 63473]]
Subpart G--General Requirements
To accommodate provisions needed to update the Department's section
504 regulation to be consistent with the ADA and to incorporate these
provisions in the Department's existing section 504 regulatory
framework, the Department is proposing to add a new subpart G--General
Requirements. This new subpart will house the provisions dealing with
general prohibitions against discrimination, the illegal use of drugs,
the maintenance of accessible features, retaliation and coercion,
personal devices or services, service animals, mobility devices, and
direct threat. In addition, it will address integration.
Sec. 84.68 General Prohibitions Against Discrimination
The Department proposes several changes to ensure consistency
between section 504 and the ADA by revising and adding several
paragraphs to the general existing prohibitions contained in Sec.
84.4, Discrimination prohibited. The general prohibitions are now
contained in Sec. 84.68, General prohibitions against discrimination.
These proposed regulations are intended to be interpreted in the same
manner as the corresponding ADA regulatory provisions.\470\
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\470\ 28 CFR 35.130-139.
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The Department is adopting these changes in order to preserve
parity with the ADA regulations given Congress's intent that the ADA
and section 504 be interpreted consistently. Both recipients and
individuals with disabilities benefit from establishing consistent
regulations. The preamble to the general prohibitions section contained
at 28 CFR 35.130 of the title II ADA regulations explains that ``[t]he
general prohibitions against discrimination in the rule are generally
based on the prohibitions in existing regulations implementing section
504 and, therefore, are already familiar to State and local entities
covered by section 504. In addition, [this regulation] includes a
number of provisions derived from title III of the Act that are
implicit to a certain degree in the requirements of regulations
implementing section 504.'' \471\
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\471\ 56 FR 35702 (July 26, 1991).
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Existing Sec. 84.4(a), the general prohibition against
discrimination, is now contained in Sec. 84.68(a). The Department has
inserted the word ``solely'' in the text of this provision to be
consistent with the statute because this regulatory language tracks the
general nondiscrimination statement of the statute. This change is a
technical amendment and is not intended to alter the Department's 46-
year history of interpretation or alter the decades-long reach of the
Department's regulations under this rule. As used in this part, solely
on the basis of disability is consistent with, and does not exclude,
the forms of discrimination delineated throughout the rule.
Paragraphs (b)(1)(i) to (vii) list prohibited actions that apply
directly to recipients as well as those with whom it is connected
through contractual, licensing, or other arrangements.
Paragraph (b)(1)(i) states that a recipient may not deny a
qualified individual with a disability the opportunity to participate
in or benefit from an aid, benefit, or service.
Paragraph (b)(1)(ii) states that a recipient may not afford an
opportunity that is not equal to or as effective as that given to
individuals without disabilities.
Paragraph (b)(1)(iii) states that a recipient may not provide a
qualified individual with a disability an aid, benefit, or service that
is not as effective in affording equal opportunity to obtain the same
result, to gain the benefit of or to reach the same level of
achievement as that provided to others.
Paragraphs (b)(1)(iv) states that a recipient may not provide
different or separate aids, benefits, or services unless necessary to
be as effective as provided to others.
Paragraph (b)(1)(v) states that a recipient may not provide
significant assistance to an entity that discriminates on the basis of
disability.
Paragraph (b)(1)(vi) states that a recipient may not deny the
opportunity to be a member of a planning or advisory board.
Paragraph (b)(1)(vii) states that a recipient may not otherwise
limit an individual with disabilities in the enjoyment of any right,
privilege, advantage, or opportunity enjoyed by others.
Paragraph (b)(2) states that a recipient may not deny a qualified
individual with a disability the opportunity to participate in programs
or activities that are not separate or different, despite the existence
of permissibly separate or different programs or activities.
Paragraph (b)(3) states that a recipient may not, directly or
through contractual or other arrangements, utilize criteria or methods
of administration (1) that have the effect of subjecting qualified
individuals with disabilities to discrimination or (2) that have the
purpose or effect of defeating or substantially impairing
accomplishment of the objectives of the program or activity or (3) that
perpetuate the discrimination of another recipient if both recipients
are subject to common administrative control or are agencies of the
same State.
Paragraph (b)(4) prohibits the same actions when determining the
site or location of a facility although, as in the title II
regulations, the third type of discrimination above is not included.
ProposedSec. 84.68(b)(5) states that the regulation applies to
recipients' selection of procurement contractors and includes proposed
language prohibiting the use of criteria that would subject qualified
individuals with disabilities to discrimination on the basis of
disability This provision is contained in the Department's section 504
regulations for federally conducted programs at 45 CFR 85.21(b)(5),
which were issued in 1988.\472\
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\472\ 53 FR 25603 (July 8, 1988).
---------------------------------------------------------------------------
Proposed Sec. 84.68(b)(6) includes language prohibiting a
recipient from administering a licensing or certification program in a
manner that subjects qualified individuals with disabilities to
discrimination on the basis of disability and from establishing
requirements for the programs or activities of licensees that subject
qualified individuals with disabilities to discrimination on the basis
of disability.\473\ It makes clear that the programs or activities of
entities that are licensed or certified by the recipient are not,
themselves, covered by the proposed regulation. This provision is also
contained in the Department's section 504 regulations for federally
conducted programs at 45 CFR 85.21(b)(6).
---------------------------------------------------------------------------
\473\ This proposed provision reflects existing case law. See,
e.g., Ramsay v. Nat'l. Bd. Of Med. Examiners, 968 F.3d 251, 254 (3d
Cir. 2020) (affirming the lower court's preliminary injunction
requiring reasonable accommodations for a medical exam board
licensing exam under section 504 and the ADA). See also Singh v.
Prasifka, No. B302113 (Cal. Ct. Of App. Oct. 22, 2021) (finding that
the failure to provide reasonable accommodations for a medical exam
required to become a physician violated section 504 and the ADA).
---------------------------------------------------------------------------
The Department proposes to add a new paragraph, Sec. 84.68(b)(7),
which reflects section 504's longstanding obligation that a recipient
make reasonable modifications in policies, practices, or procedures
when such modifications are necessary to avoid discrimination on the
basis of disability, unless the recipient can demonstrate that making
the modifications would fundamentally alter the nature of the program
or activity.
The ``reasonable modification'' provision is the same as that in
the ADA title II regulations.\474\ Despite a body of case law and
history of agency practice, the Department's existing section 504
[[Page 63474]]
regulation has lacked a specific provision implementing this
requirement outside of the employment and education context.\475\
Consistent with this case law and agency practice, as well as with the
ADA title II regulations, the Department is proposing to include a
provision setting forth the requirement for recipients of Federal
financial assistance from the Department at Sec. 84.68(b)(7).
---------------------------------------------------------------------------
\474\ 35 CFR 130(b)(7).
\475\ See 45 CFR 84.12 (employment) and 84.44 (education).
---------------------------------------------------------------------------
To distinguish this requirement in the employment versus the non-
employment context and to conform the Department's section 504
regulation to the ADA title II regulation, the regulation uses the term
``reasonable modifications'' when referring to the requirement to
modify policies, procedures, and practices outside the employment
context and ``reasonable accommodations'' when referring to its use in
the employment context.
Although the reasonable modification concept is not contained in
the Department's existing section 504 regulations, two major Supreme
Court cases make clear that the statute imposes a reasonable
modification requirement. Since those cases, the Department has
consistently required the provision of reasonable modifications of
policies, practices, or procedures when such modifications are
necessary to avoid discrimination on the basis of disability, unless
the recipient can demonstrate that making the modifications would
fundamentally alter the nature of the health service or program.
The obligation to modify policies, practices, or procedures was
first enunciated by the Supreme Court in Southeastern Community College
v. Davis, which held that, while section 504 prohibits the exclusion of
an otherwise qualified individual with a disability from participation
in a federally funded program solely by reason of the individual's
disability, that person is not protected by section 504 if, in order to
meet essential eligibility standards, the person needs program or
policy modifications that would fundamentally alter the nature of the
recipient's program.\476\ Subsequently, in Alexander v. Choate, which
addressed a section 504 challenge to a State policy reducing the annual
number of days of inpatient hospital care covered by the State's
Medicaid program, the Court explained that recipients must provide
``meaningful access'' to programs for individuals with disabilities,
and noted that ``to assure meaningful access, reasonable accommodations
in the grantee's program or benefit may have to be made.'' \477\ Since
those cases, the Department has consistently required the provision of
reasonable modifications of policies, practices, or procedures when
such modifications are necessary to avoid discrimination on the basis
of disability, unless the recipient can demonstrate that making the
modifications would fundamentally alter the nature of the health
service or program.\478\ Similarly, over the past decades, in keeping
with these U.S. Supreme Court decisions, Federal courts and Federal
agencies have regularly acknowledged agencies' affirmative obligation
to ensure that recipients provide individuals with disabilities
reasonable modifications in programs and activities unless the
recipient can demonstrate that making these modifications would
fundamentally alter the program or activity.\479\
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\476\ 442 U.S. 397 (1979).
\477\ 469 U.S. 287, 301 (1985).
\478\ See e.g., U.S. Dep't of Health & Hum. Servs., Voluntary
Resolution Agreement between the U.S. Dep't of Health & Hum. Servs.,
Off.for Civil Rts. and Citizens Med. Ctr. (Aug. 23, 2011), https://www.hhs.gov/sites/default/files/ocr/civilrights/activities/agreements/cmcsettlementagmt.pdf (OCR entered into a settlement
agreement with CMC, after finding violations of section 504 and the
ADA, when it rejected a child with autism for enrollment in a
program based on its concern that the child would need one-on-one
care as a reasonable modification.); U.S. Dep't of Health & Hum.
Servs., Voluntary Resolution Agreement between the U.S. Dep't of
Health & Hum. Servs., Off. for Civil Rts. and R.I. Dep't Children,
Youth, & Families (Mar. 30, 2022) https://www.hhs.gov/civil-rights/for-providers/compliance-enforcement/agreements/vra-ri-dcyf/index.html (requiring the State agency to fulfill its obligations
under title II of the ADA and section 504 to provide reasonable
modifications and auxiliary aids and services in a timely manner).
\479\ Courts have held that both the ADA and section 504 create
``an affirmative obligation to make `reasonable modifications to
rules, policies, or practices, the removal of architectural,
communication, or transportation barriers, or the provision of
auxiliary aids and services' to enable disabled persons to receive
services or participate in programs or activities,'' Constantine v.
Rectors & Visitors of George Mason Univ., 411 F.3d 474, 488 (4th
Cir. 2005) (discussing title II) (quoting 42 U.S.C. 12131(2)). See
also, e.g., Pierce v. Dist.of Columbia, 128 F. Supp. 3d 250, 266
(D.D.C. 2015) (``[T]he express prohibitions against disability-based
discrimination in section 504 and Title II include an affirmative
obligation to make benefits, services, and programs accessible to
disabled people.'' (emphasis in original)); Berardelli v. Allied
Servs. Inst. of Rehab. Med., 900 F.3d 104, 115 (3d Cir. 2018)
(discussing the Rehabilitation Act's affirmative obligation ``to
make reasonable accommodations or reasonable modifications'').
---------------------------------------------------------------------------
Proposed Sec. 84.68(b)(7) only addresses fundamental alterations
but does not mention undue financial and administrative burdens, which
is a limitation applied to other sections of the rule. The Department
does not propose an express limitation for undue financial and
administrative burdens in this reasonable modifications provision
because it believes this explicit limitation is unnecessary since the
``reasonableness'' limitation circumscribes the scope of the underlying
obligation. The Department believes this approach is appropriate in
this section because the degree to which a modification would create a
financial or administrative burden could bear on whether the
modification is ``reasonable.'' By contrast, other obligations in this
proposed rule--Sec. 84.22 (Existing facilities); Sec. 84.81,
(Communications) Sec. 84.88 (Web, mobile, and kiosk accessibility);
and Sec. 84.92(e), Accessible medical equipment--are framed in
categorical terms. An explicit undue burdens limitation applies to
those provisions because no ``reasonableness'' limitation is included.
This approach is consistent with the Department's understanding of the
Supreme Court precedent on limitations discussed above.
Reasonable modifications may include, but are not limited to,
permitting the use of supported decision-making or a third-party
support, where needed by a person with a disability. Supported
decision-making is an approach used to assist individuals with
disabilities in making decisions in an informed and accessible way,
through the provision of person-centered decision-making that focuses
on the wants and needs of the individual receiving support.
Supported decision-making allows an individual with a disability to
collaborate with trusted sources and make their own decisions without
the need for a substitute decision-maker. Supported decision-making
reinforces an individual's autonomy in decision-making, involves the
individual in the decision-making process, and recognizes that in some
instances assistance may be needed.\480\ It is the role of the
supporter to help the individual with a disability understand the range
of options and the implications of each, leaving the ultimate decision
to the individual with a disability.
---------------------------------------------------------------------------
\480\ Nat'l Council on Disability, Beyond Guardianship: Toward
Alternatives that Promote Greater Self-Determination for People with
Disabilities, 130-31 (2018), https://ncd.gov/sites/default/files/NCD_Guardianship_Report_Accessible.pdf.
---------------------------------------------------------------------------
As defined in the Uniform Guardianship, Conservatorship and Other
Protective Arrangements Act,\481\
[[Page 63475]]
supported decision-making means assistance from one or more persons of
an individual's choosing in understanding the nature and consequences
of potential personal and financial decisions, including health-related
decisions, which enables the individual to make the decisions, and in
communicating a decision once made, consistent with the individual's
wishes. NCD has recognized the potential autonomy benefits of supported
decision-making.\482\ In health care, supported decision-making may
mean supports and services from friends, family members, and
professionals that help an adult with a disability make their own
decisions, including assistance monitoring health; obtaining,
scheduling, and coordinating service; understanding information and
options; making decisions; and communicating those decisions to others.
---------------------------------------------------------------------------
\481\ Uniform Guardianship, Conservatorship, and Other
Protective Arrangements Act (UGCOPAA) Sec. 102(31) (UNIF. L. COMM'N
2017). UGCOPAA is intended as a ``comprehensive guardianship statute
for the twenty-first century,'' completed by the Uniform Law
Association, endorsed by the National Guardianship Association,
approved by the American Bar Association, and enacted or partially
enacted in a number of states.
\482\ Nat'l Council on Disability, Beyond Guardianship: Toward
Alternatives that Promote Greater Self-Determination for People with
Disabilities, 131 (2018), https://ncd.gov/sites/default/files/NCD_Guardianship_Report_Accessible.pdf.
---------------------------------------------------------------------------
The supporter's role may include helping an individual to
understand the range of possible treatment options and their
implications, placing that information in terms they can understand,
and helping the individual apply their own values to the decision. In
research contexts, supported decision-making may include a supporter
providing such assistance in the informed consent process.\483\
---------------------------------------------------------------------------
\483\ Benjamin C. Silverman et al., Supported Decision-Making
Can Advance Clinical Research Participation for People with
Disabilities, 28 Nature Med. 2250 (2022), https://doi.org/10.1038/s41591-022-02035-3.
---------------------------------------------------------------------------
As an example of a reasonable modification in supported decision-
making, a health care provider may need to modify their policy on
disclosing information to third parties about a medical procedure, if
the individual with a disability needs their supporter to help
understand their treatment options. A human service provider who
normally does not share benefit applicant information with third
parties may need to make additional copies of information about an
individual with a disability's benefits eligibility to share with their
supporter so the supporter can help explain the options available.
In the context of human services, supported decision-making may be
used to assist an individual with a disability who requires decision-
making support to make decisions regarding different options, choose
whether or not to continue a particular course of service-provision,
and otherwise express their will and preference with the assistance of
a supporter to ensure that the individual fully understands the range
of options available and the implications of each. Once the individual
has made a decision, the supporter can help to translate, explain, or
substantiate that position to medical professionals, human services
systems, or other relevant entities. In some instances, however, the
use of supported decision-making will not require any modification at
all. For example, a person with a disability may decide to obtain
support for a decision by consulting with others ahead of time, but be
in a position to communicate a decision to a provider without any
reasonable modifications.
When Congress enacted the ADAAA, it expressly provided that a
covered entity need not provide a reasonable modification to policies,
practices, or procedures to an individual who meets the definition of
disability solely under the ``regarded as'' prong.\484\ Consistent with
Congress' intent that section 504 and the ADA impose similar
requirements and be interpreted consistently, the Department proposes
to adopt this limitation to reasonable modifications at Sec.
84.68(b)(7)(ii) to ensure parity between section 504 and title II of
the ADA. The Department notes, however, that while individuals who meet
the definition of disability only under the ``regarded as'' prong are
not entitled to reasonable modifications, they are still protected from
discrimination under the general prohibitions against discrimination.
---------------------------------------------------------------------------
\484\ ADAAA section 6(h) (2008); 42 U.S.C. 12201(h).
---------------------------------------------------------------------------
Proposed Sec. 84.68(b)(8) prohibits imposing or applying
eligibility criteria that screen out or tend to screen out individuals
with disabilities or classes of individuals with disabilities from
``fully and equally'' enjoying any program or activity, unless the
criteria can be shown to be necessary for the provision of the program
or activity being offered. This provision concerning eligibility
criteria is contained in the current regulation at Sec. 84.13(a) but
there it is only applicable in the employment context.
The title II ADA regulations at Sec. 35.130(b)(8) expanded the
application of the provision to all covered services, programs, and
activities. In the preamble to the title II ADA regulation, DOJ
explained that this language comes directly from the HHS section 504
regulation at 45 CFR 84.13, Employment criteria.\485\ Proposed Sec.
84.68(b)(8) tracks that ADA provision.
---------------------------------------------------------------------------
\485\ 56 FR 35705 (July 26, 1991).
---------------------------------------------------------------------------
For example, assume that a researcher employed by an entity
receiving Federal financial assistance develops a protocol for use in
clinical research evaluating a new intervention for diabetes care. In
doing so, the researcher articulates inclusion and exclusion criteria
for the study and includes a requirement that study participants must
not have a visual impairment, based on the determination that patients
who have diabetes-related visual impairments would be medically
contraindicated from making use of the intervention. In this case,
potential study participants with any form of visual impairment are
excluded. A determination as to whether a qualified individual with a
disability is eligible to participate in a clinical research program
made based on broad-based categorical judgments related to their
disability but unrelated to the study screens out individuals with
disabilities from participating in the research study without being
necessary for the operation of the research program. In contrast, a
researcher in similar circumstances who excludes only patients with
diabetes-related visual impairments from the study is not likely to be
unnecessarily screening out individuals with disabilities, as these
patients are medically contraindicated while patients with other forms
of visual impairment may not be.
Proposed Sec. 84.68(c) states that nothing in the part prohibits a
recipient from providing benefits, services, or advantages beyond those
required by this part. This paragraph maintains the longstanding
approach of the Department, as reflected in Sec. 84.4(c) of the
Department's existing section 504 regulations, as well as DOJ's
longstanding approach in its title II regulation. In its title II
preamble, DOJ explained the rationale for this provision, noting that
the ADA provision is derived from existing section 504 regulations.
Those regulations permit programs conducted pursuant to Federal statute
or Executive order that are designed to benefit only individuals with
disabilities or a given class of individuals with disabilities to be
limited to those with disabilities.
In explaining the revisions to the section in the ADA regulations,
the title II preamble states that ``section 504 ensures that federally
assisted programs are made available to all individuals, without regard
to disabilities, unless the Federal program under which the assistance
is provided is specifically
[[Page 63476]]
limited to individuals with disabilities or a particular class of
individuals with disabilities.'' \486\ The preamble explains that
although based on existing section 504 regulations, the provision has
been revised so that it no longer contains the requirement that the
covered program or activity be conducted pursuant to a Federal statute
or Executive order designed to benefit only individuals with
disabilities. Instead, covered entities ``may provide special benefits,
beyond those required by the nondiscrimination requirements of this
part, that are limited to individuals with disabilities or a particular
class of individuals with disabilities, without thereby incurring
additional obligations to persons without disabilities or to other
classes of individuals with disabilities.'' \487\
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\486\ 28 CFR part 35, app. A (addressing 84.130(c)).
\487\ Id.
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Proposed Sec. 84.68(d) states that a recipient shall administer
programs and activities in the most integrated setting appropriate to
the needs of qualified individuals with disabilities. This provision is
discussed in detail in proposed Sec. 84.76.
Proposed Sec. 84.68(e)(1) states that nothing requires an
individual with a disability to accept a modification, aid, service,
opportunity, or benefit if the individual chooses not to so accept. As
noted above in the discussion of Sec. 84.68(b)(7), the concept of
reasonable modifications is derived from section 504 case law.
Proposed Sec. 84.68(e)(2) states that nothing in section 504
authorizes the representative or guardian of an individual with a
disability to decline food, water, medical treatment, or medical
services for that individual.
Proposed Sec. 84.68(f) includes language that would prohibit a
recipient from placing a surcharge on a particular individual with a
disability or any group of individuals with disabilities to defray the
costs of measures that are required by section 504 or this regulation
to ensure nondiscriminatory treatment. In explaining the related ADA
provision, DOJ stated in the preamble to the title II ADA regulations
that the origin of the provision came from its section 504 regulation
which stated that the imposition of the cost of courtroom interpreter
services is impermissible under section 504.\488\ This provision is an
extension of that established section 504 principle.
---------------------------------------------------------------------------
\488\ 45 CFR part 84, app. A (addressing Sec. 84.130(f)).
---------------------------------------------------------------------------
Proposed Sec. 84.68(g) prohibits discrimination against an
individual or an entity because of the known disability of an
individual with whom the individual or the entity is known to have a
relationship or association. In McCullum v. Orlando Regional Healthcare
System, Inc., the court said that ``[i]t is widely accepted that under
both the [Rehabilitation Act] and the ADA, non-disabled individuals
have standing to bring claims when they are injured because of their
association with a disabled person.'' \489\ Many circuit courts that
have analyzed section 504 for associational discrimination have agreed
with this interpretation.\490\ This interpretation accords with the
Department's longstanding approach to this issue under section 504.
---------------------------------------------------------------------------
\489\ 768 F. 3d 1135, 1142 (11th Cir. 2014).
\490\ See e.g., Loeffler v. Staten Island Univ. Hosp., 582 F.3d
268, 279 (2d Cir. 2009) (permitting associational discrimination
claim under section 504); Addiction Specialists v. Twp. of Hampton,
411 F. 3d 399, 405 (3d Cir. 2005) (``. . . the broad language of the
. . . [Rehabilitation Act] evidences a Congressional intent to
confer standing on entities like ASI to bring discrimination claims
based on their association with disabled individuals.''); Durand v.
Fairview Health Servs., 902 F.3d 836, 844 (8th Cir. 2018)
(recognizing associational standing under ADA and RA as discussed in
Loeffler and McCullum). Despite several circuit court holdings, case
law is not unanimous in recognizing associational claims under
section 504. In Todd v. Carstarphen, 236 F. Supp. 3d 1311, 1341-42
(N.D. Ga. 2017), the court distinguished associational claims under
title II and title III, finding no associational standing under
title II and requiring the Rehabilitation Act associational claims
to be analyzed in parallel with the relevant ADA title. That case
did acknowledge that it was in tension with existing case law
outside of its circuit. See id. at 1342 n.59.
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Proposed Sec. 84.68(h) allows recipients to impose legitimate
safety requirements that are necessary for the safe operation of their
programs or activities as long as the safety requirements are based on
actual risks, not on mere speculation, stereotypes, or generalizations
about individuals with disabilities. This concept is derived from
School Board of Nassau County, Florida v. Arline,\491\ a section 504
case that held that individuals with disabilities cannot be excluded
from programs based on concerns that they pose a risk to others unless
the recipient can provide current, objective evidence regarding the
nature, severity, and duration of the risk and the likelihood that the
risk will occur. The basic purpose of section 504 is to ensure that
individuals with disabilities are not ``denied jobs or other benefits
because of the prejudiced attitudes or ignorance of others.'' \492\
---------------------------------------------------------------------------
\491\ 480 U.S. 273 (1987).
\492\ Id. at 284.
---------------------------------------------------------------------------
Proposed Sec. 84.68(i) states that this rule does not provide a
basis for a claim that an individual without a disability is subject to
discrimination because of a lack of disability, including any claim
that an individual with a disability was granted a reasonable
modification that was denied to an individual without a disability.
Sec. 84.69 Illegal Use of Drugs
Proposed Sec. 84.4 adopts the ADA's definition of disability. That
definition states that a ``physical or mental impairment'' includes
drug addiction and alcoholism.\493\ Although the existing section 504
regulation at Sec. 84.3(j)(2)(i) does not include drug addiction and
alcoholism as physical or mental impairments, the interpretive guidance
states that alcoholism and drug addiction are ``physical or mental
impairments'' within the meaning of the Rehabilitation Act. Therefore,
an individual with alcoholism or drug addiction is included within
section 504's definition of an individual with a disability if the
impairment substantially limits one or more of their major life
activities.\494\ Accordingly, while the definition of ``disability'' in
this proposed rule adopts the ADA's definition, which states that
physical or mental impairments include drug addiction and alcoholism,
the inclusion of these impairments is consistent with HHS's
longstanding interpretation of its Rehabilitation Act regulation. An
individual with a substance or alcohol use disorder is a protected
individual with a disability if their impairment substantially limits
one of their major life activities.
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\493\ 28 CFR 35.108(b)(2).
\494\ 45 CFR part 84, app. A (addressing Sec. 84.3).
---------------------------------------------------------------------------
However, proposed Sec. 84.69 generally excludes from protection
individuals engaged in the current illegal use of drugs if a recipient
takes action against them based on that current illegal drug use,
except as specified in proposed Sec. 84.69(b). The ADA amended the
Rehabilitation Act to exclude individuals currently engaging in the
illegal use of drugs from section 504 coverage when a covered entity
acts on the basis of such use.
Proposed Sec. 84.69(a)(1) states that, except as provided in
paragraph (b), this part does not prohibit discrimination based on an
individual's current illegal use of drugs. Consistent with the language
in section 705(10) of the Rehabilitation Act, the proposed section
distinguishes between illegal use of drugs and the legal use of
substances, whether or not those substances are ``controlled
substances,'' as defined in the Controlled Substances Act (21 U.S.C.
812). Some controlled substances are prescription drugs that have
legitimate medical uses. Proposed Sec. 84.69 does not affect use of
controlled substances pursuant to a valid
[[Page 63477]]
prescription under supervision by a licensed health care professional,
or other use that is authorized by the Controlled Substances Act or any
other provision of Federal law. It does apply to illegal use of those
substances, as well as to illegal use of controlled substances that are
not prescription drugs. The key question is whether the individual's
use of the substance is illegal, not whether the substance has
recognized legal uses. Alcohol is not a controlled substance, so use of
alcohol is not addressed by this section (although persons with alcohol
use disorders are individuals with disabilities, subject to the
protections of the statute).
A distinction is made between the use of a substance and the status
of being addicted to that substance. Section 84.4, the definition of
disability, includes substance use disorder in the list of physical
impairments. Since the addiction substantially limits major life
activities, addicts are individuals with disabilities protected by the
Act. In other words, an individual with a substance use disorder cannot
use the fact of their substance use as a defense to an action based on
illegal use of drugs. This distinction is not artificial. Congress
intended to deny protection to people who engage in the illegal use of
drugs, whether or not they are individuals with substance use
disorders, but to provide protection to individuals with substance use
disorders as long as they are not currently using drugs.
Another distinction is the difficult one between current use and
former use. As defined in proposed Sec. 84.10 and 28 CFR 35.104 of the
ADA title II regulations, ``current illegal use of drugs'' means
``illegal use of drugs that occurred recently enough to justify a
reasonable belief that a person's drug use is current or that
continuing use is a real and ongoing problem.'' Proposed Sec.
84.69(a)(2) describes the circumstances in which recipients are
prohibited from discriminating against an individual who is not
engaging in current illegal use of drugs. Paragraph (a)(2)(i) specifies
that such an individual who has successfully completed a supervised
drug rehabilitation program or has otherwise been rehabilitated
successfully is protected. Paragraph (a)(2)(ii) clarifies that such an
individual who is currently participating in a supervised
rehabilitation program is protected. Paragraph (a)(2)(iii) provides
that such an individual who is erroneously regarded as engaging in
current illegal use of drugs is protected.
Paragraph (b)(1) provides an exception to the exclusion of current
illegal users of drugs from the protections of section 504. It
prohibits exclusion of an individual from the benefits of programs or
activities providing health services and services provided under the
Rehabilitation Act subchapters I (Vocational Rehabilitation Services),
II (Research and Training), and III (Professional Development and
Special Projects and Demonstrations) on the basis of that individual's
current illegal use of drugs if the individual is otherwise entitled to
such services.
The exception is different in some respects than the one contained
in the ADA. The ADA prohibits the denial of health and drug
rehabilitation services to an individual on the basis of that
individual's current illegal use of drugs if the individual is
otherwise entitled to such services.\495\ However, while section 504,
like the ADA, prohibits the denial of health and drug rehabilitation
services to such an individual, on the basis of that individual's
current illegal use of drugs if the individual is otherwise entitled to
such services, section 504 prohibits the denial of other services as
well, including vocational rehabilitation services provided under
subchapter I of the Rehabilitation Act.\496\ Thus, if an individual who
is currently using illegal drugs approaches a recipient requesting
health or drug rehabilitation services, the recipient must provide
those services if the individual is otherwise entitled to such
services. Failure to do so would violate the ADA and would also violate
section 504.
---------------------------------------------------------------------------
\495\ 42 U.S.C. 12114.
\496\ 29 U.S.C. 705 (20)(C)(iii).
---------------------------------------------------------------------------
However, assume that the individual who is currently using illegal
drugs is not seeking health or drug rehabilitation services but,
instead, is seeking vocational rehabilitation services and is otherwise
entitled to these services, and a recipient denies those vocational
rehabilitation services on the basis of the individual's current
illegal use of drugs. In this situation, proposed Sec. 84.69(b) has
been violated because vocational rehabilitation services are provided
under subchapter I of the Rehabilitation Act. However, the ADA has not
been violated because, in the ADA, the exception that mandates
treatment even for current users of illegal drugs applies only to
health and drug rehabilitation services. Although Sec. 84.69(a), the
general prohibitions paragraph, is added to align with the ADA title II
regulations, the statutory language of the ADA is different than the
statutory language of the Rehabilitation Act with regard to required
provision of services to current illegal drug users. Accordingly,
proposed Sec. 84.69(b) reflects that difference.
A recipient may not refuse treatment to an individual in need of
the services it provides on the grounds that the individual is
illegally using drugs, but it is not required by this section to
provide services that it does not ordinarily provide. For example, a
health care facility that specializes in a particular type of
treatment, such as care of burn victims, is not required to provide
drug rehabilitation services, but it cannot refuse to treat an
individual's burns on the grounds that the individual is illegally
using drugs. This is a longstanding position of the Department under
section 504. Appendix A to the existing rule makes clear that denying
treatment to an individual with a [substance use disorder] who is
otherwise entitled to such treatment for unrelated conditions is
prohibited.\497\
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\497\ 45 CFR part 84, app. A (addressing Sec. 84.3).
---------------------------------------------------------------------------
Paragraph (b)(2) provides that a drug rehabilitation or treatment
program may deny participation to individuals who engage in illegal use
of drugs while they are in the program.
Paragraph (c)(1) addresses testing for illegal use of drugs. This
paragraph is derived from the Rehabilitation Act at 29 U.S.C.
705(20)(C), and similar language in the title II regulations, which
allows recipients to ``adopt or administer reasonable policies or
procedures, including but not limited to drug testing,'' designed to
ensure that an individual who formerly engaged in the illegal use of
drugs is not now engaging in current illegal use of drugs. This
paragraph does not authorize inquiries, tests, or other procedures that
would disclose use of substances that are not controlled substances or
are taken under supervision by a licensed health care professional, or
other uses authorized by the Controlled Substances Act or other
provisions of Federal law, because such uses are not included in the
definition of ``illegal use of drugs.''
Paragraph (c)(2) states that the section is not to be ``construed
to encourage, prohibit, restrict, or authorize the conducting of
testing for the illegal use of drugs.''
Sec. 84.70 Maintenance of Accessible Features
This provision provides that a recipient must maintain in operable
working condition those features of facilities and equipment that are
required to be readily accessible to and usable by individuals with
disabilities. The failure to maintain accessible features can deny
equal opportunities,
[[Page 63478]]
and thus discriminate against individuals with disabilities, as surely
as the failure to construct those accessible features in the first
place. The ADA and the Rehabilitation Act generally are interpreted
using the same legal standards and, accordingly, the ADA analysis
applies with full force to the Rehabilitation Act.\498\ Failure of a
recipient to ensure that accessible routes are properly maintained and
free of obstructions, or failure to arrange prompt repair of inoperable
elevators or other equipment intended to provide access would also
violate this part. Similarly, storing excess furniture or supplies in
the larger, accessible toilet stall, putting potted plants in front of
the elevator buttons in the building lobby, or, in northern climates,
placing the ploughed snow in the accessible spaces in the hospital
parking lot could make these facilities and the programs they support
inaccessible to persons with disabilities.
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\498\ See, e.g., Frame v. City of Arlington, 657 F.3d 215, 223-
24 (5th Cir. 2011) (en banc) ('' The ADA and the Rehabilitation Act
generally are interpreted in pari materia.''); Liberty Res. v. City
of Phila., Civ. Action 9-3846, *2 n.4 (E.D. Pa. Oct. 27, 2021)
(``The court will consider the Rehabilitation Act claims together
with the ADA claims because the substantive standards for
determining liability are the same.'' (quotation marks and citation
omitted)). It further held that ``[p]ractical reasons also demand
this result: while a street resurfacing is a discrete act, the
failure to maintain a curb ramp is not'').
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This provision also addresses the situation where the 2010
Standards reduce either the technical requirements or the number of
required accessible elements below that required by UFAS. In such a
case, the recipient may choose to reduce the technical requirements or
the number of accessible elements in a covered facility in accordance
with the requirements of the 2010 Standards.
This paragraph is intended to clarify that temporary obstructions
or isolated instances of mechanical failure would not be considered
violations of section 504. However, allowing obstructions or ``out of
service'' equipment to persist beyond a reasonable period of time would
violate this part, as would repeated mechanical failures due to
improper or inadequate maintenance.
Sec. 84.71 Retaliation or Coercion
Proposed Sec. 84.71(a) provides that a recipient shall not
discriminate against an individual because that individual has opposed
any act or practice made unlawful by this part, or because that
individual has made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing under section
504 or this part.
Proposed Sec. 84.71(b) provides that a recipient shall not coerce,
intimidate, threaten, or interfere with any individual in the exercise
of his or her rights under this part or because that individual aided
or encouraged any other individual in the exercise or enjoyment of any
right granted or protected by section 504 or this part.
This provision protects not only individuals who allege a violation
of section 504 or this part, but also any individuals who support or
assist them. This section applies to all investigations or proceedings
initiated under section 504 or this part without regard to the ultimate
resolution of the underlying allegations.
Sec. 84.72 Personal Devices and Services
Proposed Sec. 84.72, Personal devices and services, states that
the provision of personal devices and services is not required by the
section 504 regulation. The existing section addressing personal
devices and services is contained in Sec. 84.44(d)(2), the
communications section in Subpart D, Postsecondary Education, which is
retained in the proposed rule. Section Sec. 84.72 supplements that
section. A wide range of the programs funded by the Department
incorporate the provision of personal care services. For example,
hospitals, nursing homes, child welfare services, and home and
community-based care by their very nature include the provision of
personal care devices and services. Where personal services are
customarily provided as part of recipient's programs or activities,
then these personal services should also be provided to persons with
disabilities.
Sec. 84.73 Service Animals
The Department proposes to add a new ``service animals'' section to
its regulation, which tracks the title II regulations. This new
regulation is consistent with the recognition by the Third Circuit in
Berardelli v. Allied Services Institute of Rehabilitation Medicine
\499\ that the ADA's ``service animal regulations, although technically
interpreting the ADA, are no less relevant to the interpretation of the
RA [Rehabilitation Act].'' \500\ There are many similar service animal
cases that were brought both under section 504 and the ADA.\501\
Throughout the years, OCR has processed numerous complaints alleging
that exclusions of service animals violated section 504, including
instances where service animals were denied entry to hospitals,
specialist clinics, and emergency departments.\502\ OCR has provided
technical assistance to many recipients concerning service animal
issues.
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\499\ 900 F. 3d 104 (3d Cir. 2019).
\500\ Id. at 120.
\501\ See, e.g., C.G. v. Saucon Valley Sch. Dist., 571 F.Supp.3d
430, 443-44 (E.D. Pa. Nov. 18, 2021) (``C.G. has shown a substantial
likelihood of success on the merits because there is a substantial
likelihood that George qualifies as a service animal because he has
been trained to perform tasks that related to one or more of C.G.'s
disabilities.''); E.F. v. Napoleon Cty. Sch., No. 12-15507, 15, 32
(E.D. Mich. Sept. 25, 2019) (finding that section 504 and the ADA
``are quite similar in purpose and scope, such that the analysis of
a title II ADA claim roughly parallels one brought under Section 504
of the Rehabilitation Act.'' The court further stated that ``. . .
E.F. has the right to request a service dog as an accommodation for
her disability.''); Alboniga v. Sch. Bd. of Broward Cty., 87 F.
Supp. 3d 1319, 1345 (S.D. Fla. 2015) (``Defendant is permanently
enjoined to provide the minor plaintiff A.M. reasonable
accommodation in assisting him with use of his service animal. . .
.''); Hurley v. Loma Linda Univ. Med. Ctr., No. CV12-5688 DSF, 15,
18 (C.D. Cal. Feb. 12, 2014) (noting that Casey repeatedly asking
Hurley for documentation providing that her dog was indeed a service
animal ``clearly violated the ADA'' and ``[b]ecause Hurley was
subjected to disability discrimination under the ADA, she was also
subjected to discrimination under Section 504.'' Id. at 18).
\502\ For example, one OCR complaint alleged that the recipient
refused to allow a service animal when an individual was visiting
his son in the hospital. Other complaints have alleged that service
animals have been barred from accompanying individuals in hospital
emergency rooms and specialty clinics.
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As defined in proposed Sec. 84.10, a service animal is ``any dog
that is individually trained to do work or perform tasks for the
benefit of an individual with a disability, including a physical,
sensory, psychiatric, intellectual, or other mental disability. Other
species of animals, whether wild or domestic, trained or untrained, are
not service animals for the purposes of this definition. The work or
tasks performed by a service animal must be directly related to the
individual's disability. Examples of work or tasks include, but are not
limited to, assisting individuals who are blind or have low vision with
navigation and other tasks, alerting individuals who are deaf or hard
of hearing to the presence of people or sounds, providing non-violent
protection or rescue work, pulling a wheelchair, assisting an
individual during a seizure, alerting individuals to the presence of
allergens, retrieving items such as medicine or the telephone,
providing physical support and assistance with balance and stability to
individuals with mobility disabilities, and helping persons with
psychiatric and neurological disabilities by preventing or interrupting
impulsive or destructive behaviors. The crime deterrent effects of an
animal's presence and the provision of emotional support, well-being,
comfort, or companionship do not constitute work or tasks for the
purposes of this definition.''
The definition limits service animals to dogs. No other species of
animals is
[[Page 63479]]
included. Limiting the species recognized as service animals provides
greater predictability to recipients and provides added assurance of
access for individuals with disabilities who use dogs as service
animals.
The proposed definition states that a service animal must be
``individually trained to do work or perform tasks for the benefit of
an individual with a disability.'' The work or tasks must be directly
related to the individual's disability. The definition provides an
illustrative and non-exhaustive list of examples of work or tasks.
These include alerting individuals who are deaf or hard of hearing to
the presence of people or sounds and providing non-violent protection
or rescue work. The phrase ``non-violent protection'' is used to
exclude so-called ``attack dogs'' or dogs with traditional ``protection
training'' as service animals. The proposed regulation also notes that
the crime-deterrent effect of a dog's presence, by itself, does not
qualify as work or tasks for purposes of the service animal definition.
The proposed definition states that ``the provision of emotional
support, well-being, comfort, or companionship do not constitute work
or tasks for purposes of this definition.'' Unless the dog is
individually trained to do something that qualifies as work or a task,
the animal is a pet or support animal and does not qualify for coverage
as a service animal. A pet or support animal may be able to discern
that the individual is in distress, but it is what the animal is
trained to do in response to this awareness that distinguishes a
service animal from a pet or support animal.
An example of a service animal would be a psychiatric service dog
that can help some individuals with dissociative identity disorder
remain grounded in time or place. This animal does work or performs a
task that would qualify it as a service animal as compared to an
untrained emotional support animal whose presence affects a person's
disability. It is the fact that the animal is trained to respond to the
individual's needs that distinguishes an animal as a service animal.
The process must have two steps: recognition and response. For example,
if a service animal senses that a person is about to experience an
exacerbation of their mental health symptoms, and it is trained to
respond, for example, by nudging, barking, or removing the individual
to a safe location until the episode subsides, then the animal has
performed a task or done work on behalf of the individual with the
disability, as opposed to merely sensing an event. Other tasks
performed by psychiatric service animals may include reminding the
individual to take medicine, providing safety checks or room searches
for persons with post-traumatic stress disorder, interrupting self-
harming behaviors, and removing disoriented individuals from dangerous
situations. The difference between an emotional support animal and a
psychiatric service animal is the work or tasks that the animal
performs.
Proposed Sec. 84.73(a) states that, generally, a recipient shall
modify its policies, practices, or procedures to permit the use of a
service animal by an individual with a disability. The section reflects
a specific application of the general requirement in proposed Sec.
84.68(b)(7) that a recipient make reasonable modifications to its
policies, practices, or procedures when such modifications are
necessary to avoid discrimination on the basis of disability, unless
the modifications would fundamentally alter the nature of the health
service, program or activity.
For example, assume that a recipient permits a service animal in a
waiting area of a clinic where an individual with severe allergies to
dog dander is sitting. As DOJ has explained in guidance entitled ``ADA
Requirements: Service Animals,'' ``Allergies and fear of dogs are not
valid reasons for denying access or refusing service to people using
service animals. When a person who is allergic to dog dander and a
person who uses a service animal must spend time in the same room or
facility, for example, in a school classroom or at a homeless shelter,
they both should be accommodated by assigning them, if possible, to
different locations within the room or different rooms in the
facility.'' \503\
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\503\ U.S. Dep't of Justice, ADA Requirements: Service Animals
(2010), www.ada.gov/resources/service-animals-2010-requirements.
---------------------------------------------------------------------------
Although permitting the presence of a service animal will usually
not constitute a fundamental alteration, there are some exceptions. In
its guidance entitled ``Frequently Asked Questions about Service
Animals and the ADA,'' \504\ DOJ provided the following example: ``[A]t
a boarding school, service animals could be restricted from a specific
area of a dormitory reserved specifically for students with allergies
to dog dander.'' Similarly, as applied to the health care context, for
example, at a hospital, a service animal could be restricted from a
specific area of patient rooms in a hospital reserved specifically for
individuals with allergies to dog dander. A service animal could also
be restricted from a class being given at a long-term care facility if
it continually barks and interrupts the class as long as other types of
noise are likewise not tolerated.
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\504\ U.S. Dep't of Justice, Frequently Asked Questions about
Service Animals and the ADA (2015), https://archive.ada.gov/regs2010/service_animal_qa.html.
---------------------------------------------------------------------------
Proposed Sec. 84.73(b) contains two exceptions to the requirement
that a recipient permit the use of service animals by individuals with
disabilities: (1) if the animal is out of control and the animal's
handler does not take effective actions to control it, or (2) if the
animal is not housebroken.
There are occasions when service animals are provoked to disruptive
or aggressive behavior by agitators or troublemakers, as in the case of
a blind individual whose service dog is taunted or pinched. While all
service animals are trained to ignore and overcome these types of
incidents, misbehavior in response to provocation is not always
unreasonable. In circumstances where a service animal misbehaves or
responds reasonably to a provocation or injury, the recipient must give
the handler a reasonable opportunity to gain control of the animal.
Further, if the individual with a disability asserts that the animal
was provoked or injured, or if the recipient otherwise has reason to
suspect that provocation or injury has occurred, the recipient should
seek to determine the facts and, if provocation or injury occurred, the
recipient should take effective steps to prevent further provocation or
injury, which may include asking the provocateur to leave the
recipient's facility.
Proposed Sec. 84.73(c) states that if a recipient properly
excludes a service animal under Sec. 84.73(b), it shall give the
individual with a disability the opportunity to participate in the
program or activity without having the service animal on the premises.
Proposed Sec. 84.73(d) states that a service animal shall be under
the control of its handler. It shall have a harness, leash, or other
tether, unless either the handler is unable because of a disability to
use a harness, leash, or other tether, or the use of a harness, leash,
or other tether would interfere with the service animal's safe,
effective performance of work or tasks, in which case the service
animal must be otherwise under the handler's control (e.g., voice
control, signals, or other effective means).
Proposed Sec. 84.73(e) states that a recipient is not responsible
for the care or supervision of a service animal. There may be occasions
when a person with a disability is confined to bed in a hospital for a
period of time and may not be able to walk or feed the service animal.
In such cases, if the individual
[[Page 63480]]
has a family member, friend, or other person willing to take on these
responsibilities in the place of the individual with disabilities, the
individual's obligation to be responsible for the care and supervision
of the service animal would be satisfied.
Proposed Sec. 84.73(f) states that a recipient shall not ask about
the nature or extent of a person's disability. In its guidance entitled
``Frequently Asked Questions about Service Animals and the ADA,'' \505\
DOJ explained: ``In situations where it is not obvious that the dog is
a service animal, [a recipient] may ask . . . two specific questions:
(1) [I]s the dog a service animal required because of a disability? and
(2) [W]hat work or task has the dog been trained to perform?''
Generally, these inquiries cannot be made when it is readily apparent
that an animal is trained to do work or perform tasks for an individual
with a disability. A recipient shall not require documentation, such as
proof that the animal has been certified, trained, or licensed as a
service animal.
---------------------------------------------------------------------------
\505\ U.S. Dep't of Justice, Frequently Asked Questions about
Service Animals and the ADA (2015), https://archive.ada.gov/regs2010/service_animal_qa.html.
---------------------------------------------------------------------------
Proposed Sec. 84.73(g) provides that individuals with disabilities
shall be permitted to be accompanied by their service animals in all
areas of the recipient's facilities where members of the public,
participants in programs or activities, or invitees, as relevant, are
allowed to go.
Proposed Sec. 84.73(h) provides that a recipient shall not ask or
require an individual with a disability to pay a surcharge, even if
people accompanied by pets are required to pay fees, or to comply with
other requirements generally not applicable to people without pets. If
a recipient normally charges individuals for the damage they cause, an
individual with a disability may be charged for damage caused by their
service animal.
Proposed Sec. 84.73(i) addresses miniature horses. This provision
is added to ensure consistency between this regulation and the
regulation under title II of the ADA which has long recognized that use
of miniature horses may need to be permitted as a reasonable
modification. The section states that a recipient shall make reasonable
modifications in policies, practices, or procedures to permit the use
of a miniature horse by an individual with a disability if the
miniature horse has been individually trained to work or perform tasks
for the benefit of the individual with a disability. The traditional
service animal is a dog, which has a long history of guiding
individuals who are blind or have low vision, and over time dogs have
been trained to perform an even wider variety of services for
individuals with all types of disabilities. Miniature horses can be a
viable alternative to dogs for individuals with allergies, or for those
whose religious beliefs preclude the use of dogs. Also, miniature
horses have a longer life span and greater strength as compared to
dogs. Specifically, miniature horses can provide service for more than
25 years while dogs can provide service for approximately seven years
and, because of their strength, miniature horses can provide services
that dogs cannot provide. Accordingly, use of miniature horses reduces
the cost involved to retire, replace, and train replacement service
animals.
The miniature horse is not one specific breed, but may be one of
several breeds, with distinct characteristics that produce animals
suited to service animal work. They generally range in height from 24
inches to 34 inches and generally weigh between 70 and 100 pounds.
These characteristics are similar to those of large breed dogs. Like
dogs, miniature horses can be trained to be housebroken. They are
trained to provide a wide array of services, primarily guiding
individuals who are blind or have low vision, pulling wheelchairs,
providing stability and balance for individuals with disabilities that
impair the ability to walk, and supplying leverage that enables a
person with a mobility disability to get up after a fall. They are
particularly effective for large stature individuals.
The miniature horse is not included in the definition of service
animal, which is limited to dogs. However, the proposed section makes
it clear that a recipient must make reasonable modifications in
policies, practices, or procedures to permit use of a miniature horse
by an individual with a disability if the animal has been individually
trained to do work or perform tasks for the benefit of the individual
with a disability. The recipient may take into account a series of
assessment factors in determining whether to allow a miniature horse
into a specific facility. These include the type, size, and weight of
the miniature horse; whether the handler has sufficient control of the
miniature horse; whether the miniature horse is housebroken; and
whether the miniature horse's presence in a specific facility
compromises legitimate safety requirements that are necessary for safe
operation. In addition, paragraphs (c)-(h) of this section, which are
applicable to dogs, also apply to miniature horses.
Sec. 84.74 Mobility Devices
The title II regulations were amended in 2010 to include a section
on mobility devices. In 1991 when the initial ADA regulations were
published, there was no pressing need to define the terms
``wheelchair'' or ``other power-driven mobility device,'' because
relatively few individuals with disabilities were using nontraditional
mobility devices in 1991. However, since the 1991 title II regulations
and amendments to the ADA regulations in 2010, the choices of mobility
devices available to individuals with disabilities have increased
dramatically. The ADA regulation, 28 CFR 35.137, on which proposed
Sec. 84.74 is modeled, addresses the use of unique mobility devices,
concerns about their safety, and the parameters for the circumstances
under which these devices must be accommodated. section 504 cases have
also addressed power-driven mobility devices.\506\ Advances in
technology have given rise to new power-driven devices that are not
necessarily designed specifically for people with disabilities but are
being used by some people with disabilities for mobility. The term
``other power-driven mobility devices'' was developed in the ADA
regulations and is adopted here to refer to any mobility device powered
by batteries, fuel, or other engines, whether or not they are designed
primarily for use by individuals with mobility disabilities, for the
purpose of locomotion. The term ``other power-driven mobility devices''
is defined in Sec. 84.10 of this proposed rule. Such devices include
Segways[supreg], golf carts, and other devices designed to operate in
non-pedestrian areas.
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\506\ See, e.g., Meagley v. City of Little Rock, Case No. 4:09-
cv-226-DPM, 16 (E.D. Ark. Aug. 13, 2010) aff'd, 639 F. 3d 384 (8th
Cir. 2011). In Meagley, the plaintiff rented an electric scooter at
a city zoo, the scooter slipped on a bridge, and the plaintiff
suffered injuries. The court held that both the ADA and section 504
had been violated, stating that ``Meagley proved, without question,
that the City violated her rights under both Title II of the ADA and
section 504 of the Rehabilitation Act. The steep-sloped bridge where
Meagley's accident occurred did not comply with the ADA
Accessibility Guidelines.''
---------------------------------------------------------------------------
The Department is aware that its recipients have encountered the
increased use of ``other power-driven mobility devices,'' such as
Segways[supreg]. Including regulatory provisions on how recipients
should approach allowing such vehicles in a variety of health care
settings is necessary to provide access to persons with disabilities
who use these devices and also to ensure the safe and efficient
operations of the programs and activities.
[[Page 63481]]
Under this proposed regulation, recipients must allow individuals
with disabilities who use these devices into all areas where the public
is allowed to go, unless the recipient can demonstrate that the
particular type of device cannot be accommodated because of legitimate
safety requirements. Such safety requirements must be based on actual
risks, not on speculation or stereotypes about a particular class of
devices or how individuals will operate them.
The proposed rule at Sec. 84.74(b)(2) lists the factors that
recipients must consider in determining whether to permit other power-
driven mobility devices on their premises. They include the type, size,
weight, dimensions, and speed of the device; the volume of pedestrian
traffic (which may vary at different times of the day, week, month, or
year); the facility's design and operational characteristics, such as
its square footage, whether it is indoors or outdoors, the placement of
stationary equipment, or devices, and whether it has storage space for
the device if requested by the individual; whether legitimate safety
standards can be established to permit the safe operation of the
device; and whether the use of the device creates a substantial risk of
serious harm to the environment or natural or cultural resources or
poses a conflict with Federal land management laws and regulations.
As DOJ has set forth in a guidance document entitled ``Wheelchairs,
Mobility Aids, and Other Power-Driven Mobility Devices,'' using these
assessment factors, a recipient may decide, for example, that it can
allow smaller electric devices like Segways[supreg] in a facility, but
cannot allow the use of larger electric devices like golf carts for
safety reasons, because the facility's corridors or aisles are not wide
enough to accommodate these vehicles.\507\ It is likely that many
recipients will allow the use of Segways[supreg] generally, although
some may determine that it is necessary to restrict their use during
certain hours or on particular days when pedestrian traffic is
particularly dense. Large hospitals with multiple departments and
specialties may also decide that such devices can be safely and
appropriately allowed in certain parts of the facilities, but not in
others. It is also likely that recipients will prohibit the use of
combustion-powered devices from all indoor facilities and perhaps some
outdoor facilities with heavy pedestrian traffic.
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\507\ ADA Requirements: Wheelchairs, Mobility Aids, and Other
Power-Driven Mobility Devices, U.S. Dep't of Justice, Civil Rts.
Div., https://www.ada.gov/resources/opdmds/ (last updated Jan.
2014).
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Proposed Sec. 84.74(c) addresses the types of questions that a
recipient's staff may ask of those using other power-driven mobility
devices. Recipients may not ask individuals using such devices about
their disability but may ask for a credible assurance that the device
is required because of a disability. If the person presents a valid,
State-issued disability parking placard or card or a State-issued proof
of disability, that must be accepted as credible assurance on its face.
However, recipients cannot demand or require the presentation of a
valid disability placard or card, or state-issued proof of disability,
as a prerequisite for use of a power-driven mobility device, because
not all persons with mobility disabilities have such means of proof. If
the person does not have this documentation, but states orally that the
device is being used because of a mobility disability, that also must
be accepted as credible assurance, unless the person is observed doing
something that contradicts the assurance. For example, as DOJ's
guidance document sets forth, if a person is observed running and
jumping, that may be evidence that contradicts the person's assertion
of a mobility disability. However, the fact that a person with a
disability is able to walk for a short distance does not necessarily
contradict a verbal assurance--many people with mobility disabilities
can walk but need their mobility device for longer distances or uneven
terrain. This is particularly true for people who lack stamina, have
poor balance, or use mobility devices because of respiratory, cardiac,
or neurological disabilities.
Sec. 84.75 Direct Threat
Proposed Sec. 84.10 defines ``direct threat'' as 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. This is similar to the definition in the
title II ADA regulations although this proposed definition contains a
subsection applicable to employment. Proposed Sec. 84.75 likewise is
similar to the direct threat provisions in the title II ADA regulations
at 28 CFR 35.139 but, as in the definition, it contains a subsection
applicable to employment, which uses a distinct definition of direct
threat.
This provision of the ADA regulation is modeled on the section 504
Supreme Court case of School Board of Nassau County v. Arline.\508\ In
that case, the Supreme Court established that exclusion of persons with
disabilities from programs based on concerns that they pose risk to
others can violate section 504 unless the recipient can provide
current, objective evidence regarding the nature, severity, and
duration of the risk and the likelihood that the risk will occur.
Although persons with disabilities are generally entitled to the
protection of this part, a person who poses a significant risk to
others will not be ``qualified,'' if reasonable modifications to the
recipient's policies, practices, or procedures will not eliminate that
risk.\509\
---------------------------------------------------------------------------
\508\ 480 U.S. 273 (1987).
\509\ Id. at 288 n.16.
---------------------------------------------------------------------------
The determination that a person poses a direct threat to the health
or safety of others may not be based on generalizations or stereotypes
about the effects of a particular disability. It must be based on an
individualized assessment, based on reasonable judgment that relies on
current medical knowledge or on the best available objective evidence,
to determine: the nature, duration, and severity of the risk; the
probability that the potential injury will actually occur; and whether
reasonable modifications of policies, practices, or procedures will
mitigate the risk. This is the test established by the Supreme Court in
Arline.\510\ Such an inquiry is essential if the law is to achieve its
goal of protecting disabled individuals from discrimination based on
prejudice, stereotypes, or unfounded fear, while giving appropriate
weight to legitimate concerns, such as the need to avoid exposing
others to significant health and safety risks. Making this assessment
will not usually require the services of a physician. Sources for
medical knowledge include guidance from public health authorities, such
as the U.S. Public Health Service, the Centers for Disease Control, and
the National Institutes of Health, including the National Institute of
Mental Health. These principles have been the law since Arline was
decided in 1987, and this proposed section would merely codify them
into regulatory text.
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\510\ Id. at 287-88.
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[[Page 63482]]
In the medical treatment context, when determining whether a
recipient is required to treat an individual with a disability, the
recipient must assess whether an individual poses a direct threat to
the health or safety of others. Proposed Sec. 84.56(b)(1) prohibits
denial of medical treatment based on bias or stereotypes about a
patient's disability.\511\ A recipient cannot refuse to treat patients
they would normally treat but for the patient having a separate
disability (for which the recipient does not normally provide
treatment). For example, an Ebola specialist who refuses to treat an
Ebola patient--who also has HIV--on the basis of the patient's HIV
status cannot refuse to treat the patient because of an assessment that
the individual poses a direct threat to physician's health or safety
unless there are no reasonable modifications that could mitigate the
risk.
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\511\ The medical treatment provisions of this rule involve a
straightforward application of the general prohibitions against
disability discrimination and, therefore, do not alter the direct
threat analysis in any way.
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Sec. 84.76 Integration
The current section 504 regulation includes an ``integration
mandate'' that requires recipients of Federal funds to administer
programs and activities ``in the most integrated setting appropriate to
the . . . needs'' of the person with a disability.\512\ The ADA title
II regulation similarly requires a public entity to ``administer
services, programs, and activities in the most integrated setting
appropriate to the needs of qualified individuals with disabilities.''
\513\ In the decades since the Department's initial integration mandate
language was published in the 1977 section 504 regulation, a
substantial body of case law has developed with respect to obligations
of covered entities to serve individuals with disabilities in the most
integrated setting appropriate to the qualified person's needs under
section 504 and title II of the ADA. The respective integration
obligations under section 504 and the ADA have been interpreted
consistently, with claims brought under both laws ``generally treated
identically.'' \514\ The Department proposes to update the section 504
regulation consistent with cases from the U.S. Supreme Court and lower
courts, as well as DOJ's interpretation of the integration mandate
under title II,\515\ adding greater specificity to the obligations of
recipients to serve persons with disabilities in the most integrated
setting appropriate.
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\512\ 45 CFR 84.4(b)(2).
\513\ 28 CFR 35.130(d).
\514\ See U.S. Dep't of Justice, Statement of the Department of
Justice on Enforcement of the Integration Mandate of Title II of the
Americans with Disabilities Act and Olmstead v. L.C., note 4 (2020),
https://www.ada.gov/olmstead/q&a_olmstead.htm (last visited June 18,
2022); see also, e.g., Gorman v. Bartch, 152 F.3d 907, 912 (8th Cir.
1998) (``cases interpreting either are applicable and
interchangeable.''); Pashby v. Delia, 709 F.3d 307, 321 (4th Cir.
2013) (``We consider their Title II and section 504 claims together
because these provisions impose the same integration
requirements.''). See also Radaszewski ex Rel. Radaszewski v. Maram,
383 F.3d 599, 607 (7th Cir. 2004); Frederick L. v. Dep't of Public
Welfare of Pennsylvania, 364 F.3d 487, 491 (3d Cir. 2004); Fisher v.
Oklahoma Health Care Auth., 335 F.3d 1175, 1179 n. 3 (10th Cir.
2003); Bruggeman ex Rel. Bruggeman v. Blagojevich, 324 F.3d 906, 912
(7th Cir. 2003); M.R. v. Dreyfus, 697 F.3d 706, 733 (9th Cir. 2012).
\515\ U.S. Dep't of Justice, Statement of the Department of
Justice on Enforcement of the Integration Mandate of Title II of the
Americans with Disabilities Act and Olmstead v. L.C. (2020), https://www.ada.gov/olmstead/q&a_olmstead.htm (last visited Feb. 22, 2023).
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In Olmstead v. L.C., the Supreme Court established that unjustified
isolation is a form of discrimination under the title II integration
mandate. \516\ As the Court interpreted the law, public entities are
required to provide community-based services to persons with
disabilities when such services are appropriate,\517\ the affected
persons do not oppose community-based treatment, and the placement in a
community setting can be reasonably accommodated, taking into account
the resources available to the entity and the needs of others who are
receiving disability services from the entity.\518\ Since Olmstead,
courts have interpreted analysis of the integration mandate of the ADA
and section 504 consistently.\519\ The proposed rule applies Olmstead
in the context of section 504. The most integrated setting is defined
in proposed Sec. 84.10 as ``a setting that provides individuals with
disabilities the opportunity to interact with nondisabled persons to
the fullest extent possible; is located in mainstream society; offers
access to community activities and opportunities at times, frequencies
and with persons of an individual's choosing; and affords individuals
choice in their daily life activities. This language is consistent with
the description of ``most integrated setting'' in title II
guidance.\520\
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\516\ 527 U.S. 581 (1999).
\517\ Courts and the Department of Justice have recognized that
the ``appropriateness'' of community-based services is not
necessarily limited to the determination of a treating professional.
DOJ's Olmstead guidance states ``An individual may rely on a variety
of forms of evidence to establish that an integrated setting is
appropriate. A reasonable, objective assessment by a public entity's
treating professional is one, but only one, such avenue . . . People
with disabilities can also present their own independent evidence of
the appropriateness of an integrated setting, including, for
example, that individuals with similar needs are living, working and
receiving services in integrated settings with appropriate supports.
This evidence may come from their own treatment providers, from
community-based organizations that provide services to people with
disabilities outside of institutional settings, or from any other
relevant source.'' U.S. Dep't of Justice, Statement of the
Department of Justice on Enforcement of the Integration Mandate of
Title II of the Americans with Disabilities Act and Olmstead v. L.C.
(2020), Question 4 https://www.ada.gov/olmstead/q&a_olmstead.htm
(last visited Feb. 22, 2023). This guidance is consistent with court
holdings that the public entity's determination of appropriateness
is not required for the individual with a disability to show that a
community based setting is appropriate. See Frederick L. v. Dep't of
Pub. Welfare, 157 F.Supp.2d 509, 539-40 (E.D.Pa. 2001) (denying
defendants' motion to dismiss Olmstead claims and rejecting the
argument that Olmstead ``require[s] a formal recommendation for
community placement.''); Disability Advocates, Inc. v. Paterson, 653
F.Supp.2d 184, 258-59 (E.D.N.Y. 2009) (requiring a determination by
treating professionals, who are contracted by the State, ``would
eviscerate the integration mandate'' and ``condemn the placements of
[individuals with disabilities in adult homes] to the virtually
unreviewable discretion'' of the State and its contractors); Day v.
DC, 894 F. Supp. 2d 1, 23-24 (D.D.C. 2012) (rejecting District's
assertion that plaintiffs must be subject to the District's
determination of whether or not such services are appropriate to
meet their needs).
\518\ Olmstead, 527 U.S. at 607.
\519\ See, e.g., Guggenberger v. Minn., 198 F. Supp. 3d 973,
1024 (D. Minn. 2016) (applying same analysis to title II and section
504 integration mandate claims).
\520\ 28 CFR pt. 35, app. A (2010) (addressing Sec. 35.130);
see also U.S. Dep't of Justice, Statement of the Department of
Justice on Enforcement of the Integration Mandate of Title II of the
Americans with Disabilities Act and Olmstead v. L.C. (2020), https://www.ada.gov/olmstead/q&a_olmstead.htm (last visited June 18, 2022).
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HHS has played a significant role in implementation of the Olmstead
decision for decades. Through the Medicaid program, HHS is also the
nation's primary funder of home and community-based services (HCBS).
OCR has intervened and assisted in scores of Olmstead complaints, many
of which involved State agencies administering long-term services and
supports. OCR has received complaints filed by or on behalf of a wide
range of individuals, including individuals with physical, psychiatric,
intellectual, and developmental disabilities, and individuals of all
ages. OCR also coordinates with DOJ on Olmstead complaints, including
through consultations, case referrals (both to and from DOJ) and
collaboration on cases. As a result of OCR's efforts, many individuals
have transitioned from an institution to the community, and many
individuals have avoided unnecessary institutionalization. OCR has also
played an important role in providing technical assistance to states
and other entities about the integration mandate. Despite this work,
Olmstead issues continue to comprise a significant
[[Page 63483]]
portion of disability-related complaints received by OCR.
Additionally, changes in the administration of health services and
long-term services and supports necessitate rulemaking to address
unnecessary segregation in evolving service models. In recent years,
there has been a growing shift away from traditional fee-for-service
health care towards alternative payment models and other new
approaches. Many recipients have adopted pay-for-performance frameworks
and contract with third-party entities, such as accountable care
organizations, pharmaceutical benefit managers, and managed care
organizations, for the delivery or management of services to
individuals with disabilities. The growing reliance on managed care in
State Medicaid programs and other changes, such as quality incentives,
quality assurance activities, and risk-sharing arrangements,
necessitate addressing unnecessary segregation in these emerging models
in this proposed rule.
The COVID-19 public health emergency underscored the importance of
the integration mandate. During the pandemic, community services to
people with disabilities have frequently been disrupted, forcing many
to enter or remain in segregated settings that elevated their risk of
infection and death and isolated them from the broader community.\521\
Such segregation is not made permissible by virtue of a public
emergency. The Department notes that civil rights protections,
including the integration mandate, remain applicable during public
health emergencies, natural disasters, and other public crisis.\522\
While the Department is also proposing an integration mandate provision
under Section 1557, that provision relates to benefit design in health
insurance coverage or other health-related coverage. The proposed
integration provision in this rule does not relate to benefit design or
other health insurance coverage issues. The obligations in this
proposed provision include many that are also articulated in Section
1557, but also extend to a broader range of programs and activities by
recipients of Federal financial assistance.
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\521\ See Nat`l Council on Disability, 2021 Progress Report: The
Impact of COVID-19 on People with Disabilities, 89-91 (2021),
https://ncd.gov/progressreport/2021/2021-progress-report; see also,
e.g., Scott D. Landes et al., Covid-19 Outcomes Among People With
Intellectual and Developmental Disability Living in Residential
Group Homes in New York State, 13 Disability & Health J. 13, no. 4
(2020); Scott D. Landes et al., Covid-19 Outcomes Among People With
Intellectual and Developmental Disability in California: The
Importance of Type of Residence and Skilled Nursing Care Needs, 14
Disability & Health J. 14, no. 2 (2021) (COVID-19 death rates were
consistently higher for people with IDD living in congregate
residential settings (such as group homes) and receiving 24/7
nursing services.).
\522\ See, e.g., U.S. Dep't of Health & Hum. Servs., Off. for
Civil Rts., FAQs for Healthcare Providers during the COVID-19 Public
Health Emergency: Federal Civil Rights Protections for Individuals
with Disabilities under section 504 and Section 1557 (Feb. 4, 2022),
https://www.hhs.gov/civil-rights/for-providers/civil-rights-covid19/disabilty-faqs/index.html.
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The Department proposes a new Sec. 84.76 articulating the
obligations of recipients under section 504 to serve individuals with
disabilities in the most integrated setting appropriate to their needs,
as mandated in proposed Sec. 84.68(d).
Application
Proposed Sec. 84.76(a) clarifies that the integration mandate
applies to programs or activities that receive Federal financial
assistance from the Department and to recipients that operate such
programs and activities.
Although the specific factual context of the Olmstead decision
involved residential services financed through the Medicaid program,
the integration mandate by its terms has always been applied more
broadly to any administration of programs or activities by a recipient.
The integration mandate has been applied to State and local government
service systems that rely on a range of residential and non-residential
settings, including nursing facilities,\523\ publicly and privately
operated mental health facilities,\524\ Intermediate Care Facilities
for Individuals with Intellectual Disabilities (ICF-IIDs) \525\ and
board and care homes.\526\ Courts and DOJ have also applied Olmstead to
segregated non-residential settings such as sheltered employment
programs.\527\ Segregation can occur in residential services, day and
employment services, and other services that people with disabilities
may receive. For example, a recipient State agency that provides
employment or day habilitation services to individuals with
disabilities only in congregate settings may violate section 504.
Consistent with this longstanding body of precedent and administrative
pronouncements and the existing section 504 regulation, we propose to
apply the requirement to administer a program or activity in the most
integrated setting appropriate to the person's needs to all programs
and activities of recipients of HHS funding.
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\523\ See, e.g., Radaszewski ex Rel. Radaszewski v. Maram, 383
F. 3d 599 (7th Cir. 2004); Brantley v. Maxwell-Jolly, 656 F. Supp.
2d 1161 (N.D. Cal. 2009); Vaughn v. Walthall, 968 F. 3d 814 (7th
Cir. 2020).
\524\ See, e.g., Pa. Protection and Advocacy, Inc. v. Pa. Dep't
of Pub. Welfare, 402 F. 3d 374 (3d Cir. 2005); Martin v. Taft, 222
F. Supp. 2d 940, 981 (D. Ohio 2002); United States v. Miss., 400 F.
Supp. 3d 546 (S.D. Miss. 2019); Frederick L. v. Dep't of Pub.
Welfare of Pa. 364 F. 3d 487 (3d Cir. 2004); Guggenberger v. Minn,
198 F. Supp. 3d 973 (D. Minn. 2016).
\525\ See, e.g., ARC of Wash. State, Inc. v. Braddock, 427 F. 3d
615 (9th Cir. 2005); Ball v. Kasich, 244 F. Supp. 3d 662 (S.D. Ohio
2017).
\526\ See, e.g., Pashby v. Delia, 709 F. 3d 307 (4th Cir. 2013).
\527\ See U.S. v. R.I., 1:14-CV-00175 (D.R.I. 2014); U.S. v.
R.I. and City of Providence, 1:13-CV-00442 (D.R.I. 2013); Lane v.
Brown (formerly Lane v. Kitzhaber), 166 F. Supp. 1180 (D. Or. 2016);
Steward v. Roppe Corp, 3:18-CV-2905 (N.D. Oh. Nov. 12, 2020).
---------------------------------------------------------------------------
The Department also notes that although the plaintiffs in Olmstead
had intellectual and mental health disabilities, the integration
mandate applies to all types of disabilities. Courts and Federal
enforcement agencies have applied Olmstead in cases involving people
with a wide range of disabilities, including people with intellectual
and developmental disabilities, other mental disabilities, physical
disabilities, older adults with disabilities, and children with complex
medical needs.\528\ OCR has received Olmstead complaints filed by or on
behalf of a wide range of individuals, including individuals with
physical and mental disabilities.
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\528\ See, e.g., Townsend v. Quasim, 328 F. 3d 511 (9th Cir.
2003) (finding covered disabilities included diabetic peripheral
vascular disease and bilateral amputation); Davis v. Shah, 821 F. 3d
231 (2d Cir. 2016) (plaintiff had multiple sclerosis, paraplegia,
lymphedema, cellulitis, psoriatic arthritis, peripheral neuropathy,
and trans-metatarsal amputation.); U.S. v. State of Fla., 1:13-cv-
61576, (S.D. Fla. 2013) (children with complex medical needs);
Vaughn v. Walthall, 968 F. 3d 814 (7th Cir. 2020) (quadriplegia);
M.R. v. Dreyfus, 663 F. 3d 1100 (9th Cir. 2011) (one plaintiff had
IDD, daily seizures, scoliosis, cerebral palsy, hypothyroidism, and
mood disorder; second plaintiff had spinal stenosis, congestive
heart failure, emphysema, hepatitis B and C, chronic bacterial
infections, neuropathy in both hands and feet, high blood pressure,
depression, and bipolar disorder; third plaintiff had diabetes,
congenital glaucoma, macular degeneration, and clinical depression);
Steimel v. Wernert, 823 F. 3d 902 (7th Cir. 2016) (first plaintiff
had cerebral palsy; second plaintiff had cerebral palsy and ID;
third and fourth plaintiffs had cerebral palsy, additional
plaintiffs had intellectual and developmental disabilities); Fisher
v. Okla. Health Care Auth., 335 F. 3d 1175 (10th Cir. 2003)
(wheelchair user with insulin-dependent diabetes, hypertension,
asthma, congestive heart failure, residual bilateral paresis, and
deep-vein thrombosis; second plaintiff used a wheelchair, had
cerebral palsy, and had two strokes; third plaintiff had difficulty
walking and standing and had acute mixed connective tissue disease
with seizure disorder, residual from a stroke and cardiac
malfunction); Rogers v. Cohen, No. 5:18-CV-193-D (E.D.N.Y. Feb. 25,
2019) (first plaintiff had cerebral palsy; second plaintiff had a
rare chromosomal abnormality that caused her to be intellectually
and physically disabled).
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[[Page 63484]]
Discriminatory Action Prohibited
Proposed Sec. 84.76(b) articulates the integration obligation in
broad terms, indicating that a recipient of Federal financial
assistance shall 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--
including through the failure to make reasonable modifications to
policies, practices, or procedures, as required in proposed Sec.
84.68(b)(7)--constitutes discrimination under this section.
Recipients cannot avoid their obligations under section 504 and
Olmstead by characterizing as a ``new service'' those services that
they currently or plan to in the future offer only in institutional
settings. Where a recipient provides a service, it cannot discriminate
against individuals with disabilities in the provision of that service,
including through denial of access to the most integrated setting
appropriate for their needs. Once a recipient chooses to provide
certain services, it must do so in a nondiscriminatory fashion by
ensuring access to such services in the most integrated setting
appropriate to the needs of the qualified individual.\529\
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\529\ See U.S. Dep't of Justice, Statement of the Department of
Justice on Enforcement of the Integration Mandate of Title II of the
Americans with Disabilities Act and Olmstead v. L.C., Question 8
(2020), https://www.ada.gov/olmstead/q&a_olmstead.htm; see also,
e.g., Steimel v. Wernert, 823 F.3d 902, 914 (7th Cir. 2016).
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Segregated Settings
Proposed Sec. 84.76(c) describes characteristics of segregated
settings. In the context of the integration mandate, segregation means
the unnecessary separation of people with disabilities from people
without disabilities. Unnecessary segregation may occur in a variety of
settings, such as board-and-care homes, sheltered workshops, and other
congregate settings populated exclusively or primarily with individuals
with disabilities. It is not limited to residential institutions such
as a psychiatric hospital, an Intermediate Care Facility, or a nursing
home. DOJ provides guidance that ``[s]egregated settings include, but
are not limited to: (1) congregate settings populated exclusively or
primarily with individuals with disabilities; (2) congregate settings
characterized by regimentation in daily activities, lack of privacy or
autonomy, policies limiting visitors, or limits on individuals' ability
to engage freely in community activities and to manage their own
activities of daily living; or (3) settings that provide for daytime
activities primarily with other individuals with disabilities.'' \530\
Such settings may be in compliance with applicable regulations under
Medicaid or another payer but may nonetheless not meet their
obligations under the integration requirement, as discussed in more
detail below.
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\530\ See U.S. Dep't of Justice, Statement of the Department of
Justice on Enforcement of the Integration Mandate of Title II of the
Americans with Disabilities Act and Olmstead v. L.C., Question 1
(2020), https://www.ada.gov/olmstead/q&a_olmstead.htm (last visited
Feb. 13, 2023).
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Even in smaller, disability-specific congregate settings located in
mainstream society, regimentation in daily activities, lack of privacy
or autonomy, policies limiting visitors, or limits on individuals'
ability to engage freely in community activities and to manage their
own activities of daily living may further isolate and segregate people
with disabilities.\531\ All of these sorts of restrictions limit the
opportunity for people with disabilities to interact as members of the
community with nondisabled individuals.
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\531\ U.S. Dep't of Justice, Statement of the Department of
Justice on Enforcement of the Integration Mandate of Title II of the
Americans with Disabilities Act and Olmstead v. L.C., Question 1
(2020), https://www.ada.gov/olmstead/q&a_olmstead.htm (last visited
Feb. 13, 2023); See also Disability Advocates Inc. v. Patterson, 653
F. Supp. 2d 184 (E.D.N.Y. 2009) (finding adult care facilities,
although physically located in the community, were segregated
settings because they failed to allow free interaction between
disabled and non-disabled individuals).
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We note that these characteristics need not be present for a
setting to be considered segregated.
Integration Question 1: In the discussion in the preamble
of the proposed definition of ``most integrated setting,'' we solicit
comments on whether the definition should be expanded.
Examples of Discrimination on the Basis of Disability
Proposed Sec. 84.76(d) includes a non-exhaustive list of actions
that may lead to unnecessary segregation and violate this section to
the extent that such actions result in unnecessary segregation, or
serious risk of unnecessary segregation, of persons with disabilities.
These include: (1) establishing or applying policies and practices that
limit or condition individuals with disabilities' access to the most
integrated setting appropriate to their needs; \532\ (2) providing
greater benefits or benefits under more favorable terms in segregated
settings than integrated settings; \533\ (3) establishing or applying
more restrictive eligibility rules and requirements for individuals
with disabilities in integrated settings than for individuals with
disabilities in segregated settings; and (4) failure to provide
community-based services as alternatives to institutional services that
results in institutionalization, placement in a segregated setting, or
serious risk of institutionalization. This category includes, but is
not limited to planning, service system design, funding, or service
implementation practices that result in such risk. Individuals with
disabilities need not wait until the harm of institutionalization or
segregation occurs to assert their right to avoid unnecessary
segregation.\534\ These examples are all drawn from existing case law
and Federal agency guidance.\535\
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\532\ Olmstead v. L.C., 527 U.S. 581 (1999).
\533\ Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175 (10th
Cir. 2003) (finding State's decision to cease providing unlimited,
medically-necessary prescription benefits for participants in
community-based Medicaid program while continuing to provide such
benefits to disabled persons who had been institutionalized, could
place participants in community-based program with high prescription
drug costs and limited monthly income at high risk for premature
entry into nursing homes).
\534\ See e.g., M.R. v. Dreyfus, 697 F.3d 706, 733 (9th Cir.
2012) (finding a reduction in service hours for personal care
assistance may pose a serious risk of institutionalization).
\535\ See e.g., U.S. Dep't of Justice, Statement of the
Department of Justice on Enforcement of the Integration Mandate of
Title II of the Americans with Disabilities Act and Olmstead v.
L.C., Question 1 (2020), https://www.ada.gov/olmstead/q&a_olmstead.htm.
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For example, a policy that individuals with mental health
disabilities residing in institutional settings have access to
additional hours of services not made available to individuals with
comparable mental health disabilities residing in community-based
settings may constitute a violation of section 504's integration
mandate if it leads to unnecessary institutionalization or serious risk
of such institutionalization.\536\ As another example, a hospital or
acute care provider that routinely discharges persons with serious
health disabilities into nursing homes due to inadequate discharge
planning procedures that fail to assess patients for home-based
supportive services and refer them to community-based providers, might
be in violation of section 504's integration mandate, based on
discharge practices that result in serious risk of unnecessary
[[Page 63485]]
placement within an institution or other segregated setting.
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\536\ See, e.g., Pashby v. Delia, 709 F. 3d 307 (4th Cir. 2013)
(finding stricter eligibility requirements for personal care
services for individuals residing in their own homes compared to
those residing in adult care homes violated the integration
mandate).
---------------------------------------------------------------------------
Protections from discrimination on the basis of disability are
violated by policies that place individuals at serious risk of
institutionalization or segregation. Fisher v. Oklahoma Health Care
Authority, decided shortly after Olmstead, recognized that the
integration mandate prohibited practices that place individuals at
serious risk of institutionalization. In Fisher, the Tenth Circuit held
that ``disabled persons . . . who stand imperiled with segregation''
were not required to already be institutionalized to assert claims
under Olmstead.\537\ Instead, the court held, they need only show that
they were ``at high risk for premature entry.'' \538\ In the years
since Fisher, numerous courts have applied Olmstead to protect
individuals at risk of unnecessary segregation.\539\ They have also
held that the integration mandate extends not only to a serious risk of
institutionalization but also to a serious risk of unjustified
isolation.\540\
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\537\ Fisher v. Okla. Health Care Auth., 335 F.3d 1175 (10th
Cir. 2003).
\538\ Id. at 1185, quoting Joint App. at 70.
\539\ See, e.g., Steimel v. Wernert, Nos. 15-2377, 15-2389, 2016
WL 2731505, 8 (7th Cir. May 10, 2016) (holding that at-risk claims
were ripe because the State's provided services were inadequate to
prevent life-threatening gaps in care.)); Pashby v. Delia, 709 F.3d
307, 317 (4th Cir. 2013) (holding that at-risk claims were ripe even
though plaintiffs had not perfected administrative appeals of
service reductions because plaintiffs' claim focused not on the
outcome of their individual appeals, but on the state's decision to
reduce services); Guggenberger v. Minn. 198 F. Supp. 3d 973 (D.
Minn. 2016) (holding that the state's denial to young adults with
disabilities living with parental caregivers of ``essential Waiver
Services based on Defendants' purported mismanagement and
administration'' presented a decision ripe for judicial review);
U.S. Dep't of Justice, Statement of Interest of the United States,
Ball v. Kasich, 244 F. Supp 3d 662 (S.D. Oh. 2017), https://www.ada.gov/olmstead/documents/ball_kasich_soi.pdf.2017), https://archive.ada.gov/olmstead/documents/ball_kasich_soi.pdf. But see E.B.
ex rel. M.B. v. Cuomo, 16-CIV-735 (W.D. NY, July 11, 2020).
\540\ See, e.g., Guggenberger v. Minn., 198 F. Supp. 3d 973,
1029, n. 22 (D. Minn. 2016) In Guggenberger, the court held that
``the integration mandate also applies to non-institutional
segregated settings.'' The court concluded that the plaintiffs
``have plausibly alleged that they are not living, working, and
receiving services'' in `a setting that enables [them] to interact
with nondisabled persons to the fullest extent possible,' '' Id. at
1030-31, quoting 28 CFR pt. 35, app. B (1977) (addressing Sec.
35.130)).
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DOJ has promulgated guidance stating the ADA's integration mandate
extends ``to persons at serious risk of institutionalization or
segregation and are not limited to individuals currently in
institutional or other segregated settings.'' \541\ Proposed Sec.
84.76(d)(4) makes clear that the same obligation would apply under
section 504 to recipients of HHS funding. In Davis v. Shah, the Second
Circuit cited the DOJ guidance to make clear that ``a plaintiff `need
not wait until the harm of institutionalization or segregation occurs
or is imminent' in order to bring a claim. . . .'' \542\
---------------------------------------------------------------------------
\541\ See U.S. Dep't of Justice, Statement of the Department of
Justice on Enforcement of the Integration Mandate of Title II of the
Americans with Disabilities Act (emphasis added) and Olmstead v.
L.C., Note 4 (2020), https://www.ada.gov/olmstead/q&a_olmstead.htm
(last visited June 18, 2022).
\542\ In Davis v. Shah, 821 F.3d 231, 262-63 (2d Cir. 2016), the
court adopted as its standard the DOJ Olmstead guidance. The court
quoted DOJ: ``a plaintiff ``need not wait until the harm of
institutionalization or segregation occurs or is imminent'' to bring
a claim under the ADA. Plaintiff establishes a ``sufficient risk of
institutionalization to make out an Olmstead violation if a public
entity's failure to provide community services . . . will likely
cause a decline in health, safety, or welfare that would lead to the
individual's eventual placement in an institution.''
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The Department proposes to codify this longstanding case law and
DOJ guidance. A recipient could place individuals with disabilities at
serious risk of unnecessary segregation in a variety of ways. It could
do so by failing to provide services that are necessary for those
individuals to live, work, and receive services in community-based
settings. A recipient could also create such a risk by cutting services
or budgets where those cuts will likely cause a decline in health,
safety, or welfare that would lead to an individual's placement in an
institution or other segregated setting. Examples include failing to
provide services or alternatives other than institutional care to
people with urgent needs who are on waiting lists for community
services,\543\ or a recipient's decision to deny or reduce services on
which people with disabilities rely to live, work, and recreate
independently in the community.\544\ While the ADA and section 504 do
not require a recipient to provide services at a specified standard of
care or tailored to an individual's needs, a recipient cannot
discriminate by providing some services only in less integrated
settings.\545\
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\543\ See, e.g., Olmstead v. L.C., 527 U.S. 581, 605-06 (1999)
(``If . . . the State were to demonstrate that it had a
comprehensive, effectively working plan for placing qualified
persons with mental disabilities in less restrictive settings, and a
waiting list that moved at a reasonable pace not controlled by the
State's endeavors to keep its institutions fully occupied, the
reasonable modifications standard would be met. (emphasis added)).
See also Makin v. Haw., 114 F.Supp.2d 1017, 1034 (D. Haw. 1999), a
case decided 11 months after Olmstead, in which the court found that
individuals in the community on the waiting list for community-based
services offered through Hawaii's Medicaid program could challenge
administration of program for violating title II integration mandate
because the program could potentially force the plaintiffs into
institutions; Cruz v. Dudek, No. 10-23048-CIV, 2010 WL 4284955 (S.D.
Fla. Oct. 12, 2010), report and recommendation adopted sub nom. Cruz
v. Arnold, No. 10-23048-CIV, 2010 WL (finding that plaintiffs on
waiting list for services met burden for a preliminary injunction
based on imminent risk of institutionalization.); Arc of Wash. State
v. Braddock, 427 F. 3d 615, 621 (9th Cir. 2005) (finding no
violation of the ADA by the state of Washington because ``there is a
waiting list that admits new participants when slots open up.'' The
court further stated that ``all Medicaid-eligible disabled persons
will have an opportunity to participate in the program once space
becomes available, based solely on their mental-health needs and
position on the waiting list'').
\544\ See, e.g., Steimel v. Wernert, 823 F.3d 902, 913 (7th Cir.
2016) (holding that at-risk claims were ripe because the plaintiffs
``have provided evidence that they need constant supervision and,
despite their best efforts, the services [the state] provided . . .
have proved inadequate to prevent life-threatening gaps in care.'');
Pashby v. Delia, 709 F.3d 307, 317 (4th Cir. 2013) (holding that the
state's denial to young adults with disabilities living with
parental caregivers of ``essential Waiver Services based on
Defendants' purported mismanagement and administration'' presented a
decision ripe for judicial review. ``[T]here is nothing in the plain
language of the regulations that limits protection to persons who
are currently institutionalized'').
\545\ See Radaszewski ex rel. Radaszewski v. Maram, 383 F.3d
599, 611 (7th Cir. 2004)(``Although a State is not obliged to create
entirely new services or to otherwise alter the substance of the
care that it provides to Medicaid recipients in order to accommodate
an individual's desire to be cared for at home, the integration
mandate may well require the State to make reasonable modifications
to the form of existing services in order to adapt them to
community-integrated settings.'').
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Service reductions resulting from budget cuts--even where permitted
under Medicaid and other public program rules--may violate the
integration mandate if they create a serious risk of
institutionalization or segregation.\546\ In making such service
reductions, recipients have a duty to take reasonable steps to avoid
placing individuals at risk of institutionalization or segregation. For
example, recipients may be required to make exceptions to the service
reductions or to provide alternative services to individuals who would
be forced into institutions as a result of the cuts. If providing
alternative services, recipients must ensure that those services are
actually available and that individuals can
[[Page 63486]]
actually secure them to avoid institutionalization or segregation.\547\
Budget cuts or other otherwise permissible actions may also violate
obligations under section 504's integration mandate if they result in
more favorable access to services in segregated settings than in
integrated settings.
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\546\ See, e.g., M.R. v. Dreyfus, 663 F. 3d 1100 (9th Cir. 2011)
(finding across-the-board service reductions in Medicaid personal
assistance services posed a serious risk of institutionalization);
Oster v. Lightbourne, No. C 09-4668 CW, 36 (N.D. Cal. Mar. 2, 2012)
(finding a twenty percent reduction in service hours ``will
compromise the health and well-being of . . . recipients such that
they will be at serious risk of institutionalization''); Steimel v.
Wernert, 823 F. 3d 902 (7th Cir. 2016) (holding that a changed cap
in waiver services hours, which dramatically curtailed plaintiffs'
ability to participate in community activities, violated integration
mandate); U.S. Dep't of Justice, Statement of the Department of
Justice on Enforcement of the Integration Mandate of Title II of the
Americans with Disabilities Act and Olmstead v. L.C., Question 9
(2020) https://www.ada.gov/olmstead/q&a_olmstead.htm https://www.ada.gov/olmstead/q&a_olmstead.htm (last visited Feb.13, 2023).
\547\ See U.S. Dep't of Justice, Statement of the Department of
Justice on Enforcement of the Integration Mandate of Title II of the
Americans with Disabilities Act and Olmstead v. L.C., Question 9
(2020) https://www.ada.gov/olmstead/q&a_olmstead.htm https://www.ada.gov/olmstead/q&a_olmstead.htm (last visited Feb.13, 2023).
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Civil Rights Obligations as Distinct From Medicaid Law and Regulations
The Medicaid program, established in Title XIX of the Social
Security Act, is a voluntary, joint Federal-State program. Under the
program, the Federal Government matches a portion of expenses incurred
by participating states for expenditures for Medicaid beneficiaries.
State participation in the Medicaid program is not mandatory, but if a
State chooses to participate, the Social Security Act requires it to
comply with Federal statutory and regulatory requirements--and all
states participate in the program.\548\ Among other functions, Medicaid
is the major source of financing for long-term services and supports
provided to people with disabilities to facilitate living independently
in the community. The majority of home and community-based services are
provided through section 1915(c) Medicaid waivers, as well as through
Medicaid State plan authorities (such as 1915(i), (j) and (k)), and
section 1115 Medicaid demonstrations. States have significant
discretion in how they design these programs, including setting
eligibility requirements and limitations for home and community-based
waiver services. Unlike Medicaid State plan benefits, waiver enrollment
can be capped, resulting in waiting lists when the number of people
seeking services exceeds the amount of available funding. HHS and DOJ
have made clear that obligations under the integration mandate ``are
independent from the requirements of the Medicaid program,'' \549\ and
courts have also recognized this distinction.\550\
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\548\ 42 U.S.C. 1396a.
\549\ See U.S. Dep't of Justice, Statement of the Department of
Justice on Enforcement of the Integration Mandate of Title II of the
Americans with Disabilities Act and Olmstead v. L.C., Question 7
(2020), https://www.ada.gov/olmstead/q&a_olmstead.htm (last visited
Feb.13, 2023) citing U.S. Dep't of Health & Hum. Servs., Ctrs. for
Medicare & Medicaid Servs., Olmstead Update No. 4, 4 (Jan. 10,
2001), https://www.cms.gov/smdl/downloads/smd011001a.pdf; U.S. Dep't
of Health & Hum. Servs., Ctrs. for Medicare & Medicaid Servs,
Medicaid Program: Home and Community-Based State Plan Services, 79
FR 3016 (Jan. 16, 2014), https://www.federalregister.gov/documents/2014/01/16/2014-00487/medicaid-program-state-plan-home-and-community-based-services-5-year-period-for-waivers-provider (In the
preamble to the final HCBS settings rule, CMS makes clear that
``this regulation change does not alleviate states' independent
obligations under the Americans with Disabilities Act or the Supreme
Court's Olmstead decision.''); U.S. Dep't of Health & Hum. Servs.,
Ctrs. for Medicare & Medicaid Servs, Instructions, Technical
Guidance and Review Criteria: Application for a Sec. 1915(c) Home
and Community Based-Waiver, 15 (2019), https://www.hhs.gov/guidance/sites/default/files/hhs-guidance-documents/instructions_technicalguide_v3.6_66.pdf (``Although this is guidance
with respect to the Medicaid program, we note that states have
obligations pursuant to the Americans with Disabilities Act, section
504 of the Rehabilitation Act, and the Supreme Court's Olmstead
decision interpreting the integration regulations of those statutes.
Approval of any Medicaid Waiver action does not in any way address
the State's independent obligations under the Americans with
Disabilities Act or the Supreme Court's Olmstead decision.'').
\550\ In Davis v. Shah, 821 F.3d 231, 264 (2d Cir. 2016), the
court discussed the separate obligations of the ADA and Medicaid
Act, noting ``New York's conceded discretion to decide whether to
provide coverage of orthopedic footwear and compression stockings
under the Medicaid Act, 42 U.S.C.S. Sec. 1396 et seq., does not
affect its duty to provide those services in a non-discriminatory
manner under the Americans with Disabilities Act (ADA). A state's
duties under the ADA are wholly distinct from its obligations under
the Medicaid Act.''). In Wilborn v. Martin, 965 F. Supp. 2d 834, 847
(M.D. Tenn. 2013), the court noted that CMS approval is independent
from obligations under the ADA and Rehabilitation Act (RA,
explaining ``[. . .] the ADA and the RA stand independent of the
Medicaid statute and simply require consideration of an individual
enrollee's medical needs and the impact of providing such needs for
similarly situated enrollees.''
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For example, a State might violate the integration mandate, but not
the Medicaid law or implementing regulations, by making cuts to HCBS
programs while at the same time increasing funding to institutional
services. The section 504 proposed rule would not change the
requirements of the Medicaid program in the Social Security Act or in
Medicaid regulations, nor would it require CMS to assess compliance
with section 504 as part of their work approving Medicaid proposals
(i.e., Medicaid waivers, State plans, and demonstrations).
CMS regularly communicates to states that they have separate and
independent obligations under Medicaid and other civil rights laws. For
example, CMS explicitly articulates that compliance with the Medicaid
statute and rules is a separate determination and obligation from
compliance with the ADA and section 504, in both its initial and final
approval letters for State Transition Plans (STPs) \551\ under the HCBS
settings rule.
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\551\ See, e.g., U.S. Dep't of Health & Hum. Servs., Ctrs. for
Medicare & Medicaid Servs, Alabama Initial Approval (Feb. 21, 2017),
https://www.medicaid.gov/sites/default/files/2019-12/al-initial-approval_0.pdf (``[i]t is important to note that CMS' initial
approval of an STP solely addresses the state's compliance with the
applicable Medicaid authorities. CMS' approval does not address the
state's independent and separate obligations under the Americans
with Disabilities Act, section 504 of the Rehabilitation Act, or the
Supreme Court's Olmstead decision.''); see also U.S. Dep't of Health
& Hum. Servs., Ctrs. for Medicare & Medicaid Servs, Alaska Final
Approval (Aug. 22, 2018), https://www.medicaid.gov/sites/default/files/2019-12/ak-final-appvl_0.pdf.
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A State may violate the integration mandate in administering its
system of services, including approved HCBS services under Medicaid
waivers or other authorities, if it does so in a manner that
unnecessarily segregates people with disabilities and fails to make
available sufficient services in integrated, community-based settings.
\552\ Section 504 does not require states to create new programs to
assist people with disabilities,\553\ nor does it require states to
provide a particular standard of care or level of benefits.\554\
However, states must adhere to the disability nondiscrimination
requirements--including the integration mandate--with regard to the
services they in fact
[[Page 63487]]
provide.\555\ In addition, states may be required to offer in an
integrated setting services that are only offered in a segregated
setting. Proposed Sec. 84.76(d)(2) includes as an example of a
specific prohibition ``providing greater benefits or benefits under
more favorable terms in segregated settings than in integrated
settings.'' The type and level of services needed and what services the
State provides are fact-specific inquiries.
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\552\ See 28 CFR 35.130(b),(d). See also Steimel v. Wernert, 823
F.3d 902 (7th Cir. 2016) (finding that a reduction of Medicaid
waiver hours, which results in a loss of ability to participate in
the community and increases the risk of medical complications, puts
plaintiffs at risk of institutionalization in violation of the
integration mandate).
\553\ See e.g., Rodriguez v. City of New York, 197 F.3d 611,
615-16 (2d Cir. 1999) (neither the ADA nor the Rehabilitation Act
compels the City to offer safety monitoring to people with
disabilities so that they can remain at home, where safety
monitoring was not an existing Medicaid service offered.); Alexander
v. Choate, 469 U.S. 287, 303 (Jan. 9, 1985).
\554\ The integration mandate imposes neither a ``standard of
care'' nor ``a certain level of benefits to individuals with
disabilities.'' Olmstead, 527 U.S. at 603 n. 14; Amundson ex rel.
Amundson v. Wisconsin Dep't of Health Servs., 721 F.3d 871, 875 (7th
Cir. 2013) (holding that the ADA does not support ``a claim of
absolute entitlement'' to Medicaid benefits); see also Cohon ex rel.
Bass v. New Mexico Dep't of Health, 646 F.3d 717, 729 (10th Cir.
2011) (holding that ADA did not give plaintiff ``legal entitlement''
to specific requested services and that she did not state an
Olmstead claim because she failed to allege that the program would
lead to her unjustified isolation or premature
institutionalization); Rodriguez v. City of New York, 197 F.3d at
619 (noting that ``Olmstead reaffirms that the ADA does not mandate
the provision of new benefits.'').
\555\ See Olmstead v. L.C., 527 U.S. at 603; see also
Radaszewski v. Maram, 383 F.3d at 609 (citing Olmstead v. L.C., 527
U.S. at 603 n. 14, for the principle ``that States must adhere to
the ADA's nondiscrimination requirement with regard to the services
they in fact provide'') (``While `a State is not obligated to create
new services,' it `may violate Title II when it refuses to provide
an existing benefit to a disabled person that would enable that
individual to live in a more community-integrated setting.' '').
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Providing services beyond what a State currently provides under its
Medicaid program may not be a fundamental alteration, and the ADA and
section 504 may require states to provide those services, under certain
circumstances. For example, the fact that a State is permitted to
``cap'' the number of individuals it serves in a particular waiver
program under Medicaid does not exempt the State from serving
additional people in the community to comply with the ADA or other
laws.\556\ This same logic applies to recipients under section 504, who
may be in violation of their obligations under section 504's
integration mandate even when they are in compliance with the
requirements of other public programs, such as terms and conditions for
participation for providers participating in Medicare, Federal
requirements for State Medicaid agencies, and other requirements
distinct from those of the integration mandate. For example, a long-
term care facility may violate section 504 if the facility continues an
individual's inpatient placement when the individual could live in a
more integrated setting and desires to do so.\557\ To comply with the
integration mandate, inpatient facilities may be required to discharge
patients in such circumstances. In the process of planning for such
discharges, inpatient facilities (including hospitals) may be required
to develop individualized treatment and discharge plans and coordinate
with local community-based service providers to ensure that ongoing
services, like personal care, without which an individual is at risk of
institutionalization and which are offered in the inpatient setting,
are available to the individual in the community.
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\556\ See U.S. Dep't of Justice, Statement of the Department of
Justice on Enforcement of the Integration Mandate of Title II of the
Americans with Disabilities Act and Olmstead v. L.C., Question 7
(2020), https://www.ada.gov/olmstead/q&a_olmstead.htm (last visited
Feb. 13, 2023).
\557\ U.S. Dep't of Health & Hum. Servs., Off. for Civil Rts.,
Guidance and Resources for Long Term Care Facilities: Using the
Minimum Data Set to Facilitate Opportunities to Live in the Most
Integrated Setting (May 20, 2016).
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Limitations
A recipient's obligation under the integration mandate to provide
services in the most integrated setting appropriate for the needs of a
qualified individual is not unlimited. A recipient may be excused in
instances where it can prove that the requested modification would
result in a ``fundamental alteration'' of its service, program, or
activity.\558\ Proposed paragraph (e) provides that a recipient may
establish a defense to the application of this section if it can
demonstrate that a requested modification would fundamentally alter the
nature of its program or activity. However, the recipient bears the
burden of establishing that a requested modification to its program or
activity to facilitate access to the most integrated setting would
constitute a fundamental alteration.\559\ For a recipient like a State,
a showing of a fundamental alteration would require showing ``that, in
the allocation of available resources, immediate relief for plaintiffs
would be inequitable, given the responsibility the State [or local
government] has taken for the care and treatment of a large and diverse
population of persons [with disabilities].'' \560\
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\558\ Olmstead v. L.C., 527 U.S. at 603 (1999) (quoting 28 CFR
35.130(b)(7)).
\559\ 28 CFR 35.130(b)(7)(i)(``A public entity shall make
reasonable modifications . . . unless the public entity can
demonstrate that making the modification would fundamentally alter
the nature of the service, program, or activity.'') (emphasis
added). See also Brown v. D.C., 928 F. 3d 1070, 1077 (D.C. Cir.
2019) (``Although the [Olmstead] Court did not expressly declare
that the State bears the burden of proving the unreasonableness of a
requested accommodation . . . we believe it does . . .''); Steimel
v. Wernert, 823 F. 3d 902, 914-16 (7th Cir. 2016) (``It is the
state's burden to provide that the proposed changes would
fundamentally alter their programs.'').
\560\ Olmstead v. L.C., 527 U.S. at 604-07. A public entity
raising a fundamental alteration defense based on an Olmstead plan
must show that it has developed a comprehensive, effectively working
Olmstead plan and that it is implementing the plan.
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When section 504 was enacted in 1973, Congress recognized the shift
to provide services to people with disabilities in the community
instead of in institutions and to integrate people with disabilities
into society. Congress' express goal was, in part, ``to empower
individuals with disabilities to maximize employment, economic self-
sufficiency, independence, and inclusion and integration into
society.'' \561\ The interpretive guidance to the existing regulation
explains that the phrase ``most integrated setting appropriate'' was
added to existing Sec. 84.4(b)(2), contained in Sec. 84.68(d) of the
proposed rule, to reinforce the concept that the provision of
unnecessarily separate or different services is discriminatory.\562\
The only qualification to be covered by the HHS section 504 regulations
is that an entity be a recipient of Federal financial assistance from
HHS. Accordingly, a number of individual providers who are not public
entities are covered by section 504.
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\561\ 29 U.S.C. 701(b)(1).
\562\ 45 CFR part 84, app. A (addressing Sec. 84.4(b)(2)).
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For example, in the 2016 ``Guidance and Resources for Long Term
Care Facilities,'' the Department described application of section
504's integration mandate to these recipients:
Long-term care facilities receive Federal financial assistance
by participating in programs such as Medicare and Medicaid. Section
504 prohibits discrimination based on disability, including the
unnecessary segregation of persons with disabilities. Unjustified
segregation can include continued placement in an inpatient facility
when the resident could live in a more integrated setting. This
concept was set forth in the Olmstead decision, which interpreted
the same requirements in the Americans with Disabilities Act.\563\
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\563\ U.S. Dep't of Health & Hum. Servs., Off. for Civil Rts.,
Guidance and Resources for Long Term Care Facilities: Using the
Minimum Data Set to Facilitate Opportunities to Live in the Most
Integrated Setting (May 20, 2016).
Integration Question 2: We seek comment on what may
constitute a fundamental alteration for recipients who are not public
entities, for example, an individual skilled nursing facility
responsible for identifying and preparing individuals who can and want
to be discharged to available community-based services.
Subpart H--Communications
Communication failures in the context of the receipt of health and
human services can be life-altering or even life-ending.\564\ Ensuring
that
[[Page 63488]]
communications with individuals with disabilities are as effective as
communications with others (commonly referred to as ``effective
communication'') helps to avoid such communication failures and protect
the health of individuals with disabilities. Over the years, OCR has
received numerous complaints alleging that recipients have failed to
ensure effective communication to individuals with disabilities or
failed to provide appropriate auxiliary aids and services to
individuals with disabilities in both the health care and social
services context.\565\ In many of these cases, OCR identified
compliance concerns with Federal nondiscrimination laws and entered
into agreements with recipients to address these concerns.
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\564\ The Joint Commission on Accreditation of Healthcare
Organizations found that communication failures were involved in
over 70 percent of patient safety events that result in death,
permanent harm, or severe temporary harm. Katherine Dingley et al.,
Improving Patient Safety Through Provider Communication Strategy
Enhancements, Advances in Patient Safety: New Directions and
Alternative Approaches (Vol. 3: Performance & Tools) (2008), https://www.ncbi.nlm.nih.gov/books/NBK43663/. When asked to select
contributing factors to patient care errors, nurses cited
communication issues with physicians as one of the two most highly
contributing factors, according to the National Council of State
Boards of Nursing reports.
\565\ For example, since 2015, OCR has received 523 self-
identified effective communication complaints. These numbers are
based on allegations made by complainants in OCR's system of record,
not findings by OCR on the merits after investigations.
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One such example is the VRA between OCR and a health system, that
OCR announced on January 16, 2020.\566\ In this case, OCR initiated a
compliance review following receipt of a complaint that the health
system's clinic and hospital failed to provide adequate or timely
American Sign Language (ASL) interpreter services despite multiple
requests. This complaint, combined with allegations from additional
patients, led OCR to conduct a review of the health system's policies
and procedures regarding its obligations to ensure effective
communication under section 504 and section 1557. The VRA led to the
health system strengthening its provision of auxiliary aids and
services while placing additional emphasis on effective communication.
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\566\ Examples of these resolution agreements appear on OCR's
website. U.S. Dep't of Health & Human Servs., Off. For Civil Rts.,
Recent Civil Rights Resolution Agreements & Compliance Reviews,
https://www.hhs.gov/civil-rights/for-providers/compliance-enforcement/agreements/index.html (last visited Feb. 13, 2023). See
e.g., U.S. Dep't of Health & Hum. Servs., Off. for Civil Rts., HHS
OCR Secures Voluntary Resolution with CHRISTUS Trinity Mother
Frances Health System to Strengthen its Provision of Auxiliary Aids
and Services to Individuals Who Are Deaf or Hard of Hearing (Jan.
16, 2020), https://www.hhs.gov/about/news/2020/01/16/hhs-ocr-secures-voluntary-resolution-with-christus-trinity.html?language=en.
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Similarly, OCR reached a VRA with a health institute following a
2017 complaint alleging that it failed to provide a qualified ASL
interpreter to a deaf six-year-old child requiring physical therapy, in
violation of both section 504 and section 1557.\567\ The complaint was
one of five alleging that the health institute had failed to provide
effective communication to individuals who are deaf or hard of hearing.
As a result of the resolution, the health institute agreed to take
steps to improve its review and assessment of sign language
interpreters, provide staff training with OCR's technical assistance,
and submit reports to OCR regarding its ongoing compliance
activities.\568\
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\567\ See U.S. Dep't of Health & Hum. Servs., Off. for Civil
Rts., Maryland Orthopedic Practice Agrees to Provide Deaf 6-year-old
a Qualified Interpreter (July 24, 2019), https://www.hhs.gov/about/news/2019/07/24/maryland-orthopedic-practice-agrees-provide-deaf-6-year-old-qualified-interpreter.html?language=en.
\568\ These examples are illustrative of some of the enforcement
activities OCR has undertaken concerning allegations of effective
communication discrimination. OCR periodically receives hundreds of
complaints alleging discrimination based on effective communication.
For examples of additional enforcement activities regarding
effective communication, see U.S. Dep't of Health & Hum. Servs.,
Off. for Civil Rts., Effective Communication in Hospitals--
Disability; Enforcement Success Stories Involving Persons who are
Deaf or Hard of Hearing, https://www.hhs.gov/civil-rights/for-individuals/special-topics/hospitals-effective-communication/selected-complaint-investigations-resolution-agreements/index.html.
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Notwithstanding OCR's extensive enforcement activities in this
area, including through complaint resolutions, compliance reviews, and
the provision of technical assistance, ineffective communication with
individuals with disabilities remains a persistent and significant
discrimination issue.\569\ Many of the complaints OCR receives involve
the denial of or limited access to HHS-funded services for individuals
who are deaf or hard of hearing or who are blind or have low vision.
Data from the Centers for Disease Control and Prevention indicates that
individuals with disabilities comprise more than 26 percent of adults
in the nation, over 10% of whom have a hearing or vision
disability.\570\
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\569\ See, e.g., Nicole D. Agaronnik et al., Communicating with
Patients with Disability: Perspectives of Practicing Physicians, 34
J. of Gen. Internal Med. 34(7), 1139-45 (2019), https://doi.org/10.1007/s11606-019-04911-0; see also Tyler G. James et al.,
Communication Access in Mental Health and Substance Use Treatment
Facilities for Deaf American Sign Language Users, 41 Health Aff.
1417 (Oct. 2022), https://doi.org/10.1377/hlthaff.2022.00408.
\570\ U.S. Dep't of Health & Hum. Servs., Ctrs. for Disease
Control & Prevention, Disability Impacts All of Us (Sept. 16, 2020),
www.cdc.gov/ncbddd/disabilityandhealth/infographic-disability-impacts-all.html.
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The Department is proposing to remove a limitation that currently
appears in Sec. 84.52(d) (a subsection being replaced by this
Communications subpart, the auxiliary aids provision in the Health,
Welfare, and other Social Services subpart. That subsection contains
special rules for recipients with less than 15 employees.
Section 84.52(d) directs that the obligation to provide auxiliary
aids is mandatory for recipients with 15 or more employees, but
indicates that Departmental officials may require recipients employing
fewer than 15 persons to comply with this requirement ``when
[compliance] would not significantly impair the ability of the
recipient to provide its benefits or services.'' The Department is
proposing to remove this limitation for several reasons. First, this
limitation is of minimal consequence because the vast majority of
recipients of Federal financial assistance from the Department are
already required by either title II or title III of the ADA to provide
auxiliary aids or services in order to ensure effective communication.
Second, all recipients, regardless of size, are not required, in
providing effective communication, to take any action that the
recipient can demonstrate would result in a fundamental alteration to
the program or activity or pose undue financial and administrative
burdens. Third, the Department already has the discretion whether to
impose these obligations on recipients with fewer than 15 employees,
and as of December 19, 2000, has required all recipients with fewer
than fifteen employees to provide auxiliary aids to individuals with
disabilities where the provision of such aids would not significantly
impair the ability of the recipient to provide its benefits or
services.\571\ Finally, given that Congress specifically intended that
the principles of the ADA guide the policies, practices, and procedures
developed under the Rehabilitation Act, the Department believes the
removal of this limitation better serves the purpose shared by both the
ADA and Rehabilitation Act to enable individuals with disabilities to
``enjoy full inclusion and integration into the economic, political,
social, cultural, and educational mainstream of American society.''
\572\
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\571\ 65 CFR 79368.
\572\ 29 U.S.C. 701(a)(3).
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The Department has investigated and resolved numerous complaints
regarding effective communication over the decades by recipients with
fewer than fifteen employees. The importance of ensuring that
individuals with disabilities are able to understand and engage in
health and human services programs and activities drives this proposed
change.
The current regulations implementing section 1557 require certain
covered entities to ensure effective communication for individuals with
[[Page 63489]]
disabilities.\573\ Because noncompliance in this area is so harmful to
individuals with disabilities, OCR included provisions setting out
specific and comprehensive standards relating to effective
communication and the provision of auxiliary aids and services in the
section 1557 final rule,\574\ which incorporated the effective
communication and auxiliary aids provisions from the ADA title II
regulation.\575\ In particular, the section 1557 final rule recognized
that effective communication helps ensure equal opportunities in the
health care setting, leading to better health outcomes for individuals
with disabilities.\576\ Likewise, this proposed section recognizes the
important role that effective communication plays in ensuring equal
opportunities in both health and human service programs and activities.
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\573\ See 45 CFR 92.102, requiring that health programs or
activities receiving FFA from the Department, programs or activity
administered by an Executive agency, and entities established under
Title I of the ACA, provide appropriate auxiliary aids and services
irrespective of size.
\574\ See 45 CFR 92.102. For a discussion of how adults with
communication disabilities experience poorer health outcomes, see
Michelle L. Stransky et al., Adults with Communication Disabilities
Experience Poorer Health and Healthcare Outcomes Compared to Persons
Without Communication Disabilities, 33 J. of G. Internal Med.
33(12), 2147-55 (2018), http://dx.doi.org/10.1007/s11606-018-4625-1.
\575\ See 85 FR 37160, 37213-215 (preamble addressing comments
on effective communication provisions).
\576\ 85 FR 37160, 37213.
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Part of effective communication is ensuring that individuals with
disabilities, including those with cognitive, neurological, and
psychiatric disabilities, have the appropriate information necessary to
make health care decisions. Communication between a person seeking
medical treatment and their health care provider is a basic component
of health care and in some circumstances leads to a formal process of
granting of permission for treatment, usually referred to as informed
consent. The information being provided may include information on the
names and details of procedures or treatment that the health care
provider recommends, other available alternatives, and the risks and
benefits of the treatment and other options, including foregoing any
treatment. The success of this process requires the person seeking
treatment to understand the options and make an informed choice in
determining the course of treatment. Research suggests that methods of
communication, along with the quality of the interactions between the
provider and the patient with a cognitive disability, play more
important roles in the patient's ability to make informed decisions
than intellectual and adaptive functioning.\577\ The Department is
concerned that some providers erroneously believe that certain patients
with disabilities, especially those with cognitive, neurological, or
psychiatric disabilities, are unable to understand discussions
concerning their health care, and instead of communicating directly
with the patient, communicate only with family members or companions.
In instances where providers base these communication decisions on
stereotypes or misconceptions about the patient's ability to understand
or make medical decisions, they deny the patient autonomy and control
over their health care. Fundamental concepts of Federal disability
rights laws, including rights to effective communication and reasonable
modifications, require that individuals with disabilities, including
those with cognitive, neurological, and psychiatric disabilities are
afforded the information needed to have an equal opportunity to make
informed health care decisions.\578\
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\577\ William F. Sullivan, Supporting Adults with Intellectual
and Developmental Disabilities to Participate in Health Care
Decision Making, 64 Can. Fam. Physician (Suppl 2): S32-S36 (Apr.
2018), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5906782/.
\578\ See 28 CFR 35.160 (effective communication requirements
for public entities); 28 CFR 35.130(b)(7) (requirement for public
entities to make reasonable modifications); 45 CFR 84.52(d)
(requirement to provide auxiliary aids in health, welfare, and other
social services); 45 CFR 92.105 (requirement for certain health
programs and activities to make reasonable modifications); 45 CFR
92.102 (effective communication requirements for certain health
programs and activities).
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Effective communication for patients with cognitive, neurological,
and psychiatric disabilities may require auxiliary aids and services or
strategies different from those employed with patients with other
disabilities. For example, while an individual who is deaf or hard of
hearing may require an ASL interpreter to effectively communicate with
a provider, an individual with a cognitive disability may require
additional time with the provider to ask questions and receive plain
language answers about a specific health care decision.
A specific type of auxiliary aid or service may be the acquisition
or modification of equipment or devices, including for augmentative and
alternative communication, and the provision of training and assistance
to the individual with a disability on how to use them. Augmentative
and alternative communications devices include, but are not limited to,
speech generating devices, single-message devices, computers, tablets,
smartphones, amplification devices, telecommunications devices, voice
amplifiers, artificial phonation devices, picture and symbol boards,
paper-based aids, and other equipment or devices used to compensate for
impairments to speech-language production or comprehension, including
spoken and written modes of communication.
In some instances, the use of augmentative and alternative
communication is necessary for individuals with certain disabilities
that impair speech production and comprehension to access vital health
and human services programs and activities. Often, the most effective
way for recipients to ensure effective communication is to provide
training on the use of this equipment.
Section 504 also requires recipients to provide reasonable
modifications to policies, practices, or procedures to individuals with
disabilities when necessary to avoid discrimination unless the
modification would fundamentally alter the nature of the program or
activity at issue. Reasonable modifications may include modifications
to how a provider communicates with or delivers information to a
patient with a disability. For example, a reasonable modification for a
patient with a mental disability may be to allow a third-party support
person to join the conversation and allow that person to assist the
patient in understanding their options and coming to an independent
decision on how to proceed. The person with a disability may be in a
supported decision-making arrangement with the third-party support
person, but no such formal role is required.
Another reasonable modification may be for the recipient to provide
information in a format that is accessible to individuals with
cognitive, developmental, intellectual, or neurological disabilities
such as through plain language. NCD has urged the Department to issue
guidance to medical professionals requesting that they explain
procedures and draft documents in plain language to better serve
patients with disabilities.\579\ Under some circumstances, plain
language may be a reasonable modification to remove barriers between
individuals with certain disabilities and the information necessary to
make informed health and human services decisions. Information written
in plain language may afford individuals with
[[Page 63490]]
certain disabilities an equal opportunity to comprehend important
service, program, or activity information. Sometimes, a plain language
oral explanation, instead of a written one, may be a sufficient
modification. However, in many circumstances, it may be a fundamental
alteration of the nature of a recipient's program or activity to
require extensive technical documents to be produced in plain language.
---------------------------------------------------------------------------
\579\ Nat'l Council on Disability, Beyond Guardianship: Toward
Alternatives that Promote Greater Self-Determination (Mar. 22,
2018), https://ncd.gov/sites/default/files/NCD_Guardianship_Report_Accessible.pdf.
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Communications Question 1: The Department requests comment
on the importance of providing information in plain language for
individuals with cognitive, developmental, intellectual, or
neurological disabilities.
Communications Question 2: Additionally, the Department
requests comment on whether plain language is more appropriately
considered a reasonable modification that an individual must request,
or if it should be considered an auxiliary aid or service.
Sec. 84.77 General
The Department proposes to add a new subpart H to the section 504
implementing regulations to address ongoing communication issues. The
new provisions reflect the same requirements concerning effective
communication adopted by the Department in the 2020 section 1557 Final
Rule, which are based on the effective communication requirements of
title II of the ADA.\580\ Proposed Sec. 84.77(a)(1), requires that a
recipient take appropriate steps to ensure that communications with
applicants, participants, members of the public, and companions with
disabilities are as effective as communications with others in such
programs or activities. Proposed Sec. 84.77(a)(2), as well as the
definition section at Sec. 84.10, defines a companion as a family
member, friend, or associate of an individual seeking access to a
program or activity of a recipient, who, along with such individual, is
an appropriate person with whom the recipient should communicate. The
proposed text at Sec. 84.77(b)(1) requires that a recipient provide
appropriate auxiliary aids and services to individuals with
disabilities, where necessary to afford such individuals an equal
opportunity to access the benefit or service in question. Section
84.77(b)(2) states that the type of auxiliary aid or services needed
will vary in accordance with various factors. That paragraph further
provides that, in determining what types of auxiliary aids and services
are necessary, a recipient shall give primary consideration to the
request of the individual with a disability. In addition, it states
that to be effective auxiliary aids and services must be provided in
accessible formats, in a timely manner, and in such a way as to protect
the privacy and independence of the individual with a disability.\581\
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\580\ 45 CFR 92.102, 28 CFR 35.160.
\581\ Section 1557 also requires that certain recipients and
State Exchanges provide appropriate auxiliary aids and services. 45
CFR 92.102.
---------------------------------------------------------------------------
Proposed Sec. 84.77(c) states that recipients are not allowed to
require an individual with a disability to bring another individual to
interpret for them and provides limited exceptions where accompanying
adults or children may be used to interpret or facilitate
communication.
Section 84.77(d) proposes requirements for recipients that choose
to provide qualified interpreters via Video Remote Interpreting (VRI)
services. These requirements set certain usability standards for the
instances where VRI services are appropriate auxiliary aids and
services for communication.
Sec. 84.78 Telecommunications
This section contains requirements for recipients that communicate
by telephone with applicants and beneficiaries with disabilities.
Specifically, the section would require recipients to use
telecommunications systems that ensure effective communication. When a
recipient uses an automated-attendant system, that system must provide
effective real-time communication with individuals using auxiliary aids
and services. In addition, a recipient must respond to telephone calls
from a telecommunications relay service established under title IV of
the ADA in the same manner that it responds to other telephone calls.
Sec. 84.79 Telephone Emergency Services
Proposed Sec. 84.79 states that telephone emergency services,
including 911 services, shall provide direct access to individuals who
use TTY's and computer modems.
Sec. 84.80 Information and Signage
Proposed Sec. 84.80 provides specific requirements for information
and signage to ensure that interested persons can obtain information as
to the existence and location of accessible services, activities, and
facilities while also pointing users to accessible entrances.
Sec. 84.81 Duties
Proposed Sec. 84.81 provides that, in meeting its communication
requirements, a recipient is not required to take any action that would
result in a fundamental alteration in the nature of its program or
activity or undue financial and administrative burdens.
This paragraph does not establish an absolute defense; it does not
relieve a recipient of all obligations to individuals with
disabilities. Although a recipient is not required to take actions that
would result in a fundamental alteration in the nature of a program or
activity or undue financial and administrative burdens, it nevertheless
must take any other steps necessary to ensure that individuals with
disabilities receive the benefits or services provided by the
recipient.
It is the Department's view that compliance with the communications
requirements in subpart H, like compliance with the corresponding
provisions of the ADA title II regulation and the section 504
regulations for federally conducted programs, would in most cases not
result in a fundamental alteration or undue financial and
administrative burdens on a recipient. In determining whether financial
and administrative burdens are undue, all recipient resources available
for use in the funding and operation of the program or activity should
be considered. The burden of proving that compliance with any section
in this subpart would fundamentally alter the nature of a program or
activity or would result in undue financial and administrative burdens
rests with the recipient.
The decision that compliance would result in such alteration or
burdens must be made by the head of the recipient or their designee and
must be accompanied by a written statement of the reasons for reaching
that conclusion. The Department recognizes the difficulty of
identifying the official responsible for this determination, given the
variety of organizational forms that may be taken by recipients and
their components. The intention of this paragraph is that the
determination must be made by a high level official or senior leader
who has budgetary authority and responsibility for making spending
decisions.
Subpart K--Procedures
Subpart G is redesignated as subpart K. Section 84.61, Procedures,
is retained and redesignated as Sec. 84.98. That section states that
the procedural provisions applicable to Title VI of the Civil Rights
Act of 1964 apply to this part. Those procedures are found at 45 CFR
80.6 through 80.10 and part 81. They include a requirement that
recipients cooperate with the
[[Page 63491]]
Department when it seeks to obtain compliance with this part (45 CFR
80.6(a)); keep records that the Department finds necessary to determine
compliance (45 CFR 80.6(b)); permit access by the Department to sources
of information necessary to determine compliance (45 CFR 80.6(c)); and
provide information about the regulations to beneficiaries and
participants (45 CFR 80.6(d)). The regulations also provide that the
Department shall conduct periodic compliance reviews to determine
compliance (45 CFR 80.7(a)) and will accept written complaints filed
not more than 180 days from the alleged discrimination (45 CFR
80.7(b)). In addition, the Department will conduct a prompt
investigation when any information indicates a possible failure to
comply with this part. (45 CFR 80.7(a)(c)).
IV. Executive Order 12866 and Related Executive Orders on Regulatory
Review
A. Regulatory Impact Analysis Summary
a. Statement of Need
In this proposed rule, the Department proposes to revise its
existing section 504 regulation on nondiscrimination obligations for
recipients of Federal financial assistance. More than 40 years have
passed since the Department originally issued regulations implementing
section 504, with only limited changes in the decades since. During
that time, major legislative and judicial developments have shifted the
legal landscape of disability discrimination protections under section
504, including statutory amendments to the Rehabilitation Act, the
enactment of the ADA and the ADAAA, the ACA, and Supreme Court and
other significant court cases. Section 504 should be updated and
interpreted consistently with these developments and overlapping laws
in order to bring the regulations into conformity with current law and
to protect against discrimination on the basis of disability.
b. Overall Impact
We have examined the impacts of the proposed rule under Executive
Order (E.O.) 12866, as amended by E.O. 14094; E.O. 13563; the
Regulatory Flexibility Act (5 U.S.C. 601-612); and the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4). E.O. 12866 and E.O. 13563
direct us to assess all costs and benefits of available regulatory
alternatives and, when regulation is necessary, to select regulatory
approaches that maximize net benefits (including potential economic,
environmental, public health and safety, and other advantages;
distributive impacts; and equity). This proposed rule is a significant
regulatory action under section 3(f)(1) of E.O. 12866.
The Regulatory Flexibility Act requires us to analyze regulatory
options that would minimize any significant impact of a rule on small
entities. Because the costs of the proposed rule are small relative to
the revenue of recipients, including covered small entities, and
because even the smallest affected entities would be unlikely to face a
significant impact, we propose to certify that the proposed rule will
not have a significant economic impact on a substantial number of small
entities.
The Unfunded Mandates Reform Act of 1995 (Section 202(a)) generally
requires the Department to prepare a written statement, which includes
an assessment of anticipated costs and benefits, before proposing ``any
rule that includes any Federal mandate that may result in the
expenditure by State, local, and tribal governments, in the aggregate,
or by the private sector, of $100,000,000 or more (adjusted annually
for inflation) in any one year.'' The current threshold after
adjustment for inflation is $165 million, using the most current (2021)
Implicit Price Deflator for the Gross Domestic Product. This proposed
rule is not subject to the Unfunded Mandates Reform Act because it
falls under an exception for regulations that establish or enforce any
statutory rights that prohibit discrimination on the basis of race,
color, religion, sex, national origin, age, handicap, or
disability.\582\
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\582\ 2 U.S.C. 1503(2).
---------------------------------------------------------------------------
The Background and Reasons for the Proposed Rulemaking sections at
the beginning of this preamble contain a summary of this proposed rule
and describe the reasons it is needed.
Below is a summary of the results and methodology from our
Regulatory Impact Analysis (RIA). A complete copy of this RIA will be
available at https://www.hhs.gov/sites/default/files/sec-504-rehab-act-npr-ria.pdf as well the Federal Government's online rulemaking portal
(www.regulations.gov). Interested parties are encouraged to review the
full RIA, and to provide data and other information responsive to
requests for comment posed in the RIA, also included in the Request for
Comment section in this document.
c. Summary of Costs and Benefits
Section 504 has applied to medical care providers that receive
Federal financial assistance from the Department for approximately
fifty years. The Department issued regulatory language detailing
specific requirements for health care providers in 1977.\583\ The
health care sector in the United States is quite broad, encompassing
about 490,000 providers of ambulatory health care services and 3,044
hospitals. It includes 168,459 offices of physicians; 124,384 offices
of dentists; 141,853 offices of other health care practitioners; 7,192
medical and diagnostic laboratories; 24,619 home health care service
providers; and 19,625 outpatient care centers. Most of these entities
receive Federal financial assistance. For example, the Department
estimates that approximately 92% of doctors, 43% of dentists, and all
hospitals receive Federal financial assistance from the Department and
are thus subject to section 504. The Department's section 504 NPRM
applies to this universe of recipients, updating the Department's
original regulation and adding new provisions in several areas. This
section 504 NPRM does not apply to health care programs and activities
conducted by the Department. Those programs and activities are covered
by part 85 of section 504, which covers federally conducted (as opposed
to federally assisted) programs or activities.\584\ While a majority of
the estimated costs associated with this proposed rule concern health
care providers, the proposed rule covers all recipients of HHS funding.
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\583\ For example, all recipients have been required to
construct new facilities and alter existing facilities in an
accessible manner, make changes to ensure program accessibility,
provide alternate means of communication for persons who are blind,
deaf, have low vision, or are hard of hearing (e.g., sign language
interpreters, materials in Braille or on tape), and prohibited from
denying or limiting access to their health care programs or from
otherwise discriminating against qualified persons with a disability
in their health care programs or activities.
\584\ 45 CFR 85.
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The RIA considers the various proposed sections and quantifies
several categories of costs that we anticipate recipients may incur.
The RIA quantifies benefits people with disabilities are expected to
receive due to higher percentages of accessible Medical Diagnostic
Equipment (yielding improved health outcomes) at recipients' locations
and discusses unquantified significant benefits and costs the proposed
rule is expected to generate that could not be quantified or monetized
(due to lack of data or for other methodological reasons). The RIA also
quantifies benefits that will result from accessible web content and
mobile applications while addressing unquantified benefits the proposed
rule is expected to accrue.
[[Page 63492]]
Table 1 below summarizes RIA results with respect to the likely
incremental monetized benefits and costs, on an annualized basis. All
monetized benefits and costs were estimated for a 10-year time horizon
using discount rates of 7 and 3 percent.
Table 1--Annualized Value of Monetized Costs and Benefits Under the
Proposed Rule Over a Five-Year Period
[In 2021 dollars]
------------------------------------------------------------------------
7-Percent 3-Percent
discount rate discount rate
(in millions) (in millions)
------------------------------------------------------------------------
Monetized Incremental Costs
------------------------------------------------------------------------
Subpart I--Web, Mobile, and Kiosk 1,478.0 1,422.7
Accessibility..........................
Subpart J--Accessible Medical Equipment. 352.6 347.1
Sec. 84.56--Medical Treatment......... 12.4 12.1
Sec. 84.57--Value Assessment Methods.. 0.1 0.1
Sec. 84.60--Child Welfare............. 0.1 0.1
-------------------------------
Total Monetized Incremental Costs *. 1,843.2 1,782.0
------------------------------------------------------------------------
Monetized Incremental Benefits
------------------------------------------------------------------------
Subpart I--Web, Mobile, and Kiosk 1,736.3 1,799.6
Accessibility..........................
Subpart J--Accessible Medical Equipment. 128.1 128.1
-------------------------------
Total Monetized Incremental Benefits 1,864.3 1,927.7
*..................................
------------------------------------------------------------------------
(* Note: Totals may not sum due to rounding.)
Quantified incremental costs concerning Accessible Medical
Equipment under subpart J come from updating policies and procedures,
acquiring accessible Medical Diagnostic Equipment (MDE), and ensuring
staff are qualified to successfully operate accessible MDE. Quantified
incremental costs concerning Web, Mobile, and Kiosk Accessibility under
subpart I come from reviewing and updating existing web content and
mobile apps while ensuring ongoing conformance with listed standards.
Additional costs for provisions under Sec. 84.56--Medical
Treatment, Sec. 84.57--Value Assessment Methods, and Sec. 84.60--
Child Welfare, are calculated based on limited revisions to policies
and procedures and training for employees on provisions that largely
restate existing obligations and explicitly apply them to specific
areas of health and human services. The RIA requests comment on more
extensive transition and ongoing costs.
Concerning the proposed provisions to ensure consistency with the
ADA, statutory amendments to the Rehabilitation Act, and Supreme Court
and other significant court cases, the RIA finds that these proposed
provisions will likely result in no additional costs to recipients.
Regarding costs, the RIA finds that the proposed rule would result
in annualized costs over a 5-year time horizon of $1,782.0 million or
$1,843.2 million, corresponding to a 3% or a 7% discount rate. The RIA
separately reports a full range of cost estimates of about $1,615.5
million to $2,143.7 million at a 3% discount rate, and a range of cost
estimates of about $1,674.5 million to $2,213.3 million at a 7%
discount rate.
For quantified benefits, the RIA quantifies the benefits that
people with disabilities are expected to receive due to higher
percentages of accessible Medical Diagnostic Equipment (yielding
improved health outcomes) at recipients' locations and more accessible
web content, mobile apps, and kiosks. The RIA concludes that the
proposed rule would result in total annualized benefits of $1,927.7
million at a 3% discount rate and $1,864.3 million at a 7% discount
rate.
In addition to these quantified benefit estimates, the RIA includes
discussions of potential unquantified benefits under the rule.
Generally, the RIA anticipates that the proposed rule will result in a
myriad of benefits for individuals with disabilities as a result of
greater access to necessary health and human service programs and
activities as well as limitations to discriminatory actions.
Analogously, some costs have been quantified, while for others, the RIA
requests comment that would facilitate more thorough estimation.
The RIA discusses both quantitatively and qualitatively the
regulatory alternatives the Department has considered in an attempt to
achieve the same statutory and regulatory goals while imposing lower
costs on society.
B. Regulatory Flexibility Act--Initial Small Entity Analysis
The Department has examined the economic implications of this
proposed rule as required by the Regulatory Flexibility Act. This
analysis, as well as other sections in this Regulatory Impact Analysis,
serves as the Initial Regulatory Flexibility Analysis, as required
under the Regulatory Flexibility Act.
The Department deems that a proposed rule has a significant
economic impact on a substantial number of small entities whenever the
rule generates a change in revenues of more than 3% for 5% or more of
small recipients.
The U.S. Small Business Administration (SBA) maintains a Table of
Small Business Size Standards Matched to North American Industry
Classification System Codes (NAICS).\585\ We have used SBA yearly
revenues thresholds for 2019, which for
[[Page 63493]]
recipients ranged between $8 million \586\ and $41.5 million.\587\
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\585\ The most current version became effective on October 1,
2022. See U.S. Small Bus. Admin., Table of Size Standards, (last
updated Oct. 1, 2022), https://www.sba.gov/document/support-table-size-standards. In our analyses, which pertain to 2019, we used the
version effective in the 2019 calendar year. We note that CEs'
distribution by SBA size--namely, the fraction of CEs that are small
by SBA standards--did not change in any meaningful way in the past
decades.
\586\ The $8 million yearly 2019 revenue threshold applies to
several NAICS, including 621340, Offices of Physical, Occupational
and Speech Therapists and Audiologists, and 624410, Child Day Care
Services. These $8 million yearly 2019 revenue thresholds have been
increased for three NAICS: 621340, Offices of Physical, Occupational
and Speech Therapists and Audiologists (to $11 million); 621399,
Offices of All Other Miscellaneous Health Practitioners (to $ 9
million) and 624410, Child Day Care Services (to 8.5 million).
\587\ The $41.5 million yearly 2019 revenue threshold applies to
Hospitals (NAICS 622), Direct Health and Medical Insurance Carriers
(NAICS 524114) and Kidney Dialysis Centers (NAICS 621492). These
thresholds have not changed in SBA's October 1, 2022 update. The
$41.5 million yearly revenue threshold remains the highest value for
recipients considered in our analyses.
---------------------------------------------------------------------------
As reported in the RIA, 97.4% of all firms in the Health Care and
Social Assistance sector (NAICS 62) are small. With the exception of
Hospitals (Subsector 622), at least 9 out 10 of all recipients within
each Health Care and Social Assistance NAICS code are small.
Most firms--98.3%--in the Pharmacies and Drug Stores (NAICS 446110)
group are small as well. About 60% of Direct Health and Medical
Insurance Carriers (NAICS 524114) are small. About 60% of Colleges,
Universities, and Professional Schools (NAICS 611310) are small.
Hence, almost all non-government recipients (i.e., private firms),
under the scope of the proposed rule are small businesses.
Moreover, the fraction of total small firms in each NAICS that
falls under the smallest size group (fewer than 5 employees) is greater
than 5% for all relevant NAICS.
As a consequence, it is sufficient to investigate the impact of the
proposed rule on the average recipient in the smallest size group to
determine whether the proposed rule may generate a change in revenues
of more than 3%. We need to determine whether the average firm in the
smallest size group will experience a reduction in revenues greater
than 3%.
Below we discuss the two reasons for our conclusion that firms in
the smallest groups will not experience a 3% reduction in revenues.
Hence, we propose to certify that the proposed rule will not have a
significant economic impact on a substantial number of small entities.
As for the first reason, we note that, with the exception of a
handful of HMO Medical Centers (NAICS 621491) and about 24,500 Child
Day Care Services (NAICS 624410) firms, the yearly average revenues (in
2019 dollars) for a recipient belonging to the smallest size group--for
each 6-digit NAICS separately--are $160,000 or more.
Three percent of this sum is about $5,000, which we deem is enough
to finance purchase of the limited set of inexpensive MDE the smallest
entities typically need and training.
The average yearly revenue for a Child Day Care Services firm in
the smallest size group (fewer than five employees) is about $98,000.
As we expect that recipients in this group will incur only Child
Welfare training costs (less than 1 hour per year, or less than $60 in
costs), we conclude that the impact of the proposed rule is less than
3% of revenues (about $3,000 for these small recipients) for recipients
in this group.
Even among the smallest recipient groups within the 6-digit NAICS
groups that private recipients belong to, the typical (median) yearly
revenue is about $300,000 for podiatrists' offices (the maximum is $0.5
million for general hospitals, the lowest is $98,000 for Child Day Care
Services), which signals that in many cases the 3% revenue threshold is
about $10,000. Costs of the proposed rule are mostly proportional to
the size of the recipient, and typical recipients in the smallest size
group (fewer than 5 employees) are not expected to incur $10,000
incremental costs.
In addition, we estimate that the obligation to ensure that web
content and mobile applications for the Department's recipients that
are small providers (those with fewer than fifteen employees) will be
less than 3% of their revenues. We note that the vast majority of the
Department's recipients are small providers and estimate that most of
these small providers (approximately 85.9%) have websites. The websites
of these small providers are typically one domain with up to a few
thousand pages and limited visitors per month. Thus, the Department
estimates that for a cost of approximately $440 per year these
recipients will be able to ensure that their websites can be made
accessible and kept accessible each year. The Department welcomes
comments on the cost implications of subpart I for its recipients,
particularly its small recipients.
As for the second reason, we stress that the proposed rule includes
exemptions meant to ease the burden on small firms, including exemption
when incremental compliance costs are an undue financial burden, and
the ability to meet accessibility requirements via alternative,
inexpensive methods (like reassignment of services to alternate
accessible locations or home visits for MDE requirements).
C. Executive Order 13132: Federalism
As required by Executive Order 13132 on Federalism, the Department
has examined the effects of provisions in the proposed regulation on
the relationship between the Federal Government and the states. The
Department has concluded that the proposed regulation has federalism
implications but notes that State law will continue to govern unless
displaced under standard principles of preemption.
The proposed regulation attempts to balance State autonomy with the
necessity to create a Federal benchmark that will provide a uniform
level of nondiscrimination protection across the country. It is
recognized that the states generally have laws that relate to
nondiscrimination against individuals on a variety of bases. Such State
laws continue to be enforceable, unless they prevent application of the
proposed rule. The proposed rule explicitly provides that it is not to
be construed to supersede State or local laws that provide additional
protections against discrimination on any basis articulated under the
regulation. Provisions of State law relating to nondiscrimination that
are ``more stringent'' than the proposed Federal regulatory
requirements or implementation specifications will continue to be
enforceable.
Section 3(b) of Executive Order 13132 recognizes that national
action limiting the policymaking discretion of states will be imposed
only where there is constitutional and statutory authority for the
action and the national activity is appropriate considering the
presence of a problem of national significance. Discrimination issues
in relation to health care are of national concern by virtue of the
scope of interstate health commerce.
Section 4(a) of Executive Order 13132 expressly contemplates
preemption when there is a conflict between exercising State and
Federal authority under a Federal statute. Section 4(b) of the
Executive Order authorizes preemption of State law in the Federal rule
making context when ``the exercise of State authority directly
conflicts with the exercise of Federal authority under the Federal
statute.'' The approach in this regulation is consistent with these
standards in the Executive Order in superseding State authority only
when such authority is inconsistent with standards established pursuant
to the grant of Federal authority under the statute.
Section 6(b) of Executive Order 13132 includes some qualitative
discussion of substantial direct compliance costs that State and local
governments would
[[Page 63494]]
incur as a result of a proposed regulation. We have considered the cost
burden that this proposed rule would impose on State and local
government recipients and estimate State and local government
annualized costs will be about $576.4 million per year (2021 dollars)
at a 3% discount rate and $600.6 million at a 7% discount rate.
These costs represent the sum of costs for compliance with all
provisions applying to State and local governments, namely those for
subpart I (about 38% of costs for all recipients, i.e., public and
private entities altogether), subpart J (about 10% of costs for all
recipients), section 84.56--Medical Treatment (about 10% of costs for
all recipients), 100% of costs for section 84.57--Value Assessment
Methods (only public entities--Medicaid agencies--bear these costs),
and section 84.60--Child Welfare (about 4% of costs of all recipients).
In addition, the Department is aware that DOJ has issued a
Preliminary Regulatory Impact Analysis to accompany its rule proposing
requirements for public entities covered by title II of the ADA and
that its requirements are consistent with this Department's subpart I.
DOJ examined the costs of its proposal for all public entities covered
by title II and stated that the rule will not be unduly burdensome or
costly for public entities. Because this Department's rule is
consistent with the DOJ proposed rule, we believe that the DOJ analysis
provides further support for our belief that subpart I will not be
unduly burdensome or costly for the Department's recipients that are
public entities.
The Department welcomes comments about the potential federalism
implications of the proposed rule and on the proposed rule's effects on
State and local governments.
D. Paperwork Reduction Act
This proposed rule contains information collection requirements
that are subject to review by the Office of Management and Budget (OMB)
under the Paperwork Reduction Act of 1995 (PRA).\588\ Under the PRA,
agencies are required to submit to OMB for review and approval any
reporting or record-keeping requirements inherent in a proposed or
final rule and are required to publish such proposed requirements for
public comment. The PRA requires agencies to provide a 60-day notice in
the Federal Register and solicit public comment on a proposed
collection of information before it is submitted to OMB for review and
approval.
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\588\ 44 U.S.C. 3501 et seq.
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Section 3506(c)(2)(A) of the PRA requires that the Department
solicit comment on the following issues:
1. Whether the information collection is necessary and useful to
carry out the proper functions of the agency;
2. The accuracy of the agency's estimate of the information
collection burden;
3. The quality, utility, and clarity of the information to be
collected; and
4. Recommendations to minimize the information collection burden on
the affected public, including automated collection techniques.
The PRA requires consideration of the time, effort, and financial
resources necessary to meet the information collection requirements
referenced in this section.
Paperwork Reduction Act Question 1: The Department invites
public comment on its assumptions as they relate to the PRA
requirements summarized in this section and explicitly invites comment
from potential respondents regarding the burden estimate we ascribe to
these requirements, including a discussion of respondents' basis for
their computation.
This Notice of Proposed Rulemaking does not modify several
longstanding collections of information that have been required since
1977: Sec. 84.5, (assurances); Sec. 84.6(c) (self-evaluation); Sec.
84.7(a)(designation of responsible employee and adoption of grievance
procedures; Sec. 84.22 (e) (existing facilities: transition plan); and
Sec. 84.61, redesignated as Sec. 84.98 (Procedures). The Notice of
Proposed Rulemaking slightly modifies one longstanding collection of
information required since 1977 to align more closely with the
requirement under title II of the ADA: \589\ Sec. 84.8 (notice). With
regard to assurances, Sec. 84.5, OCR has previously obtained PRA
approval (OMB control # 0945-0008) for this reporting requirement via
an updated HHS Form 690 (Consolidated Civil Rights Assurance Form),
separate from this rulemaking. The requirement to sign and submit an
assurance of compliance currently exists under section 504 and other
civil rights regulations (Title VI, section 1557, Title IX, and the Age
Act). Since the Department provides an online portal through which
covered entities submit an attestation of Assurance of Compliance, the
Department has determined that this requirement imposes no additional
reporting or recordkeeping requirements under the PRA.
---------------------------------------------------------------------------
\589\ See 28 CFR 35.106.
---------------------------------------------------------------------------
Like the assurances section, all of the other sections listed above
are being retained from the current section 504 rule issued in 1977.
Section 84.61, redesignated as Sec. 84.98, states that the procedural
provisions applicable to Title VI of the Civil Rights Act of 1964 apply
to this part. The provision raising potential PRA issues is the
requirement that recipients maintain records that the Department finds
necessary to determine compliance. However, that section, like all of
the others listed above, has existed since the original section 504
regulations were enacted in 1977. Accordingly, these sections impose no
additional burden on recipients since they have been subject to this
regulation since that time.
The notice requirement outlined in proposed Sec. 84.8 implicates
the third-party disclosure provisions of the PRA implementing
regulations, which compels an agency to request comment and submit for
OMB review any agency regulation that requires an individual ``to
obtain or compile information for the purpose of disclosure to members
of the public or the public at large, through posting, notification,
labeling or similar disclosure. . . .''
Table 6 of the Regulatory Impact Analysis reports that there are
about 453,084 recipients covered by this rulemaking. We estimate the
burden for responding to the proposed Sec. 84.8 notice requirement
assuming a single response per recipient, and that administrative or
clerical support personnel will spend 34 minutes (0.5667 of an hour) to
respond.\590\ The estimated total number of hours to respond is 256,763
(0.567 x 453,084).
---------------------------------------------------------------------------
\590\ We rely on the hourly estimate for a similar notice
provision in the NPRM for 45 CFR 92.10. 87 FR 47824, 47908 (Aug. 4,
2022).
[[Page 63495]]
----------------------------------------------------------------------------------------------------------------
Number of
Number of responses Total Burden hours Total burden
Regulation burden recipients per responses per response hours
recipient
----------------------------------------------------------------------------------------------------------------
Sec. 84.8............................... 453,084 1 453,084 .5667 256,763
----------------------------------------------------------------------------------------------------------------
Paperwork Reduction Act Question 2: The Department invites
public comment on burdens associated with the third-party disclosure
requirement under proposed Sec. 84.8, including a discussion of
respondents' basis for their computation.
E. Unfunded Mandates Reform Act
Section 4(2) of the Unfunded Mandates Reform Act of 1995, 2 U.S.C.
1503(2), excludes from coverage under that Act any proposed or final
Federal regulation that ``establishes or enforces any statutory rights
that prohibit discrimination on the basis of race, color, religion,
sex, national origin, age, handicap, or disability.'' Accordingly, this
rulemaking is not subject to the provisions of the Unfunded Mandates
Reform Act.
F. National Technology Transfer and Advancement Act of 1995
The National Technology Transfer and Advancement Act of 1995
(NTTAA) directs that, as a general matter, all Federal agencies and
departments shall use technical standards that are developed or adopted
by voluntary consensus standards bodies, which are private, generally
nonprofit organizations that develop technical standards or
specifications using well-defined procedures that require openness,
balanced participation among affected interests and groups, fairness
and due process, and an opportunity for appeal, as a means to carry out
policy objectives or activities.\591\ In addition, the NTTAA directs
agencies to consult with voluntary, private sector, consensus standards
bodies and requires that agencies participate with such bodies in the
development of technical standards when such participation is in the
public interest and is compatible with agency and departmental
missions, authorities, priorities, and budget resources.\592\
---------------------------------------------------------------------------
\591\ Public Law 104-113, section 12(d)(1) (15 U.S.C. 272 Note).
\592\ Id. at 12(d)(1).
---------------------------------------------------------------------------
The Department is proposing to adopt the Accessibility Standards
for Accessible Medical Diagnostic Equipment issued by the U.S. Access
Board to apply to the purchase and lease of medical equipment by
recipients of HHS funds that provide health care services and programs.
These Standards were adopted by the U.S. Access Board in 2017 after a
five-year review period that included an Advisory Committee, composed
of representatives from the health care industry, architects, persons
with disabilities, and organizations representing a variety of
interested stakeholders. The Standards were developed after extensive
notice-and-comment. The development of these standards was required by
Section 510 of the Rehabilitation Act of 1973, as amended, and were
developed with the participation of the Food and Drug Administration.
They have gained wide recognition in the United States. The Department
is unaware of any privately developed standards created with the same
wide participation and open process. As a result, the Department
believes that it is appropriate to use these Standards for its section
504 rule.
NTAA Question 1: The Department seeks public comment on
these standards [Accessibility Standards for Accessible Medical
Diagnostic Equipment] and whether there are any other standards for
accessible medical diagnostic equipment that the Department should
consider.
The Department is proposing to adopt the Web Content Accessibility
Guidelines 2.1 Level AA as the accessibility standard to apply to web
content and mobile apps of recipients. WCAG 2.1 was developed by the
W3C[supreg], which has been the principal international organization
involved in developing protocols and guidelines for the web. The
W3C[supreg] develops a variety of technical standards and guidelines,
including ones relating to privacy, internationalization of technology,
and accessibility. Thus, the Department believes it is complying with
the NTTAA in selecting WCAG 2.1 as the applicable accessibility
standard.
NTTAA Question 2: The Department seeks public comment on
the selection of WCAG 2.1 as the accessibility standard applicable to
web content and mobile apps of recipients and whether there are other
standards that the Department should consider.
Note that this question is similar to the questions asked in ``Web
Accessibility Question 4.''
G. Executive Order 12250 on Leadership and Coordination of
Nondiscrimination Laws
Pursuant to E.O. 12250, the Attorney General has the responsibility
to ``review . . . proposed rules . . . of the Executive agencies''
implementing nondiscrimination statutes such as section 504 ``in order
to identify those which are inadequate, unclear or unnecessarily
inconsistent.'' \161\ E.O. 12250 does not apply to the 504 provisions
relating to equal employment, which are reviewed and coordinated by the
Equal Employment Opportunity Commission. See E.O. 12250 (DOJ
Coordination authority) at 1-503 and E.O. 12067 (EEOC Coordination
authority). The Attorney General has delegated the E.O. 12250 functions
to the Assistant Attorney General for the Civil Rights Division for
purposes of reviewing and approving proposed rules. 28 CFR 0.51. The
Department will coordinate with DOJ to review and approve this proposed
rule prior to publication in the Federal Register.
V. Effective Date
The Department proposes that the effective date be 60 days after
publication of the Final Rule.
VI. Request for Comment
The Department seeks comment on all issues raised by the proposed
regulation.
List of Subjects in 45 CFR Part 84
Adoption and foster care, Civil rights, Childcare, Child welfare,
Colleges and universities, Communications, Disabled, Discrimination,
Emergency medical services, Equal access to justice, Federal financial
assistance, Grant programs, Grant programs--health, Grant programs--
social programs, Health, Health care, Health care access, Health
facilities, Health programs and activities, Individuals with
disabilities, Integration, Long term care, Medical care, Medical
equipment, Medical facilities, Nondiscrimination, Public health.
For the reasons set forth in the preamble, the Department of Health
and Human Services proposes to amend 45 CFR part 84 as follows:
[[Page 63496]]
Title 45--Public Welfare
PART 84--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN PROGRAMS
OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE
0
1. The authority citation for part 84 is revised to read as follows:
Authority: 29 U.S.C. 794.
Subpart G also issued under 21 U.S.C. 1174; 42 U.S.C. 4581.
0
2. Revise the heading for part 84 to read as set forth above.
Subpart A--General Provisions
0
3. Revise Sec. 84.1 to read as follows:
Sec. 84.1 Purpose and broad coverage.
(a) Purpose. The purpose of this part is to implement section 504
of the Rehabilitation Act of 1973, as amended, which prohibits
discrimination on the basis of disability in any program or activity
receiving Federal financial assistance.
(b) Broad coverage. The definition of ``disability'' in this part
shall be construed broadly in favor of expansive coverage to the
maximum extent permitted by the terms of section 504. The primary
object of attention in cases brought under section 504 should be
whether entities receiving Federal financial assistance have complied
with their obligations and whether discrimination has occurred, not
whether the individual meets the definition of ``disability.'' The
question of whether an individual meets the definition of
``disability'' under this part should not demand extensive analysis.
0
4. Revise Sec. 84.2 to read as follows:
Sec. 84.2 Application.
(a) This part applies to each recipient of Federal financial
assistance from the Department and to the recipient's programs or
activities that involve individuals with disabilities in the United
States. This part does not apply to the recipient's programs or
activities outside the United States that do not involve individuals
with disabilities in the United States.
(b) The requirements of this part do not apply to the ultimate
beneficiaries of any program or activity operated by a recipient of
Federal financial assistance.
(c) Any provision of this part held to be invalid or unenforceable
by its terms, or as applied to any person or circumstance, shall be
construed so as to continue to give maximum effect to the provision
permitted by law, unless such holding shall be one of utter invalidity
or unenforceability, in which event the provision shall be severable
from this part and shall not affect the remainder thereof or the
application of the provision to other persons not similarly situated or
to other dissimilar circumstances.
Sec. 84.10 [ Removed]
0
5. Remove Sec. 84.10.
Sec. 84.3 [Redesignated as Sec. 84.10]
0
6. Redesignate Sec. 84.3 as Sec. 84.10.
0
7. Add new Sec. 84.3 to read as follows:
Sec. 84.3 Relationship to other laws.
This part does not invalidate or limit the remedies, rights, and
procedures of any other Federal laws, or State or local laws (including
State common law) that provide greater or equal protection for the
rights of individuals with disabilities, or individuals associated with
them.
0
8. Revise Sec. 84.4 to read as follows:
Sec. 84.4 Disability.
(a) Definition--(1) Disability means, with respect to an
individual:
(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.
(2) Rules of construction. (i) The definition of ``disability''
shall be construed broadly in favor of expansive coverage, to the
maximum extent permitted by the terms of section 504.
(ii) An individual may establish coverage under any one or more of
the three prongs of the definition of ``disability'' in paragraph
(a)(1) of this section, the ``actual disability'' prong in paragraph
(a)(1)(i) of this section, the ``record of'' prong in paragraph
(a)(1)(ii) of this section, or the ``regarded as'' prong in paragraph
(a)(1)(iii) of this section.
(iii) Where an individual is not challenging a recipient's failure
to provide reasonable modifications, it is generally unnecessary to
proceed under the ``actual disability'' or ``record of'' prongs, which
require a showing of an impairment that substantially limits a major
life activity or a record of such an impairment. In these cases, the
evaluation of coverage can be made solely under the ``regarded as''
prong of the definition of disability, which does not require a showing
of an impairment that substantially limits a major life activity or a
record of such an impairment. An individual may choose, however, to
proceed under the ``actual disability'' or ``record of'' prong
regardless of whether the individual is challenging a recipient's
failure to provide reasonable modifications.
(b) Physical or mental impairment--(1) Definition. (i) Any
physiological disorder or condition, cosmetic disfigurement, or
anatomical loss affecting one or more body systems, such as:
neurological, musculoskeletal, special sense organs, respiratory
(including speech organs), cardiovascular, reproductive, digestive,
genitourinary, immune, circulatory, hemic, lymphatic, skin, and
endocrine; or
(ii) Any mental or psychological disorder such as intellectual
disability, organic brain syndrome, emotional or mental illness, and
specific learning disability.
(2) Physical or mental impairment includes, but is not limited to,
contagious and noncontagious diseases and conditions such as the
following: orthopedic, visual, speech and hearing impairments, and
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis,
cancer, heart disease, diabetes, intellectual disability, emotional
illness, dyslexia and other specific learning disabilities, Attention
Deficit Hyperactivity Disorder, Human Immunodeficiency Virus infection
(whether symptomatic or asymptomatic), tuberculosis, substance use
disorder, alcohol use disorder, and long COVID.
(3) Physical or mental impairment does not include homosexuality or
bisexuality.
(c) Major life activities--(1) Definition. Major life activities
include, but are not limited to:
(i) Caring for oneself, performing manual tasks, seeing, hearing,
eating, sleeping, walking, standing, sitting, reaching, lifting,
bending, speaking, breathing, learning, reading, concentrating,
thinking, writing, communicating, interacting with others, and working;
and
(ii) The operation of a major bodily function, such as the
functions of the immune system, special sense organs and skin, normal
cell growth, and digestive, genitourinary, bowel, bladder,
neurological, brain, respiratory, circulatory, cardiovascular,
endocrine, hemic, lymphatic, musculoskeletal, and reproductive systems.
The operation of a major bodily function includes the operation of an
individual organ within a body system.
(2) Rules of construction. (i) In determining whether an impairment
substantially limits a major life activity, the term major shall not be
interpreted strictly to create a demanding standard.
[[Page 63497]]
(ii) Whether an activity is a major life activity is not determined
by reference to whether it is of central importance to daily life.
(d) Substantially limits--(1) Rules of construction. The following
rules of construction apply when determining whether an impairment
substantially limits an individual in a major life activity.
(i) The term ``substantially limits'' shall be construed broadly in
favor of expansive coverage, to the maximum extent permitted by the
terms of section 504. ``Substantially limits'' is not meant to be a
demanding standard.
(ii) The primary object of attention in cases brought under section
504 should be whether recipients have complied with their obligations
and whether discrimination has occurred, not the extent to which an
individual's impairment substantially limits a major life activity.
Accordingly, the threshold issue of whether an impairment substantially
limits a major life activity should not demand extensive analysis.
(iii) An impairment that substantially limits one major life
activity does not need to limit other major life activities to be
considered a substantially limiting impairment.
(iv) An impairment that is episodic or in remission is a disability
if it would substantially limit a major life activity when active.
(v) An impairment is a disability within the meaning of this part
if it substantially limits the ability of an individual to perform a
major life activity as compared to most people in the general
population. An impairment does not need to prevent, or significantly or
severely restrict, the individual from performing a major life activity
to be considered substantially limiting. Nonetheless, not every
impairment will constitute a disability within the meaning of this
section.
(vi) The determination of whether an impairment substantially
limits a major life activity requires an individualized assessment.
However, in making this assessment, the term ``substantially limits''
shall be interpreted and applied to require a degree of functional
limitation that is lower than the standard for substantially limits
applied prior to the ADAAA.
(vii) The comparison of an individual's performance of a major life
activity to the performance of the same major life activity by most
people in the general population usually will not require scientific,
medical, or statistical evidence. Nothing in this paragraph (d)(1) is
intended, however, to prohibit or limit the presentation of scientific,
medical, or statistical evidence in making such a comparison where
appropriate.
(viii) The determination of whether an impairment substantially
limits a major life activity shall be made without regard to the
ameliorative effects of mitigating measures. However, the ameliorative
effects of ordinary eyeglasses or contact lenses shall be considered in
determining whether an impairment substantially limits a major life
activity. Ordinary eyeglasses or contact lenses are lenses that are
intended to fully correct visual acuity or to eliminate refractive
error.
(ix) The six-month ``transitory'' part of the ``transitory and
minor'' exception in paragraph (f)(2) of this section does not apply to
the ``actual disability'' or ``record of'' prongs of the definition of
``disability.'' The effects of an impairment lasting or expected to
last less than six months can be substantially limiting within the
meaning of this section for establishing an actual disability or a
record of a disability.
(2) Predictable assessments. (i) The principles set forth in the
rules of construction in this section are intended to provide for
generous coverage and application of section 504's prohibition on
discrimination through a framework that is predictable, consistent, and
workable for all individuals and entities with rights and
responsibilities under section 504.
(ii) Applying these principles, the individualized assessment of
some types of impairments as set forth in paragraph (d)(2)(iii) of this
section will, in virtually all cases, result in a determination of
coverage under paragraph (a)(1)(i) of this section (the ``actual
disability'' prong) or paragraph (a)(1)(ii) of this section (the
``record of'' prong). Given their inherent nature, these types of
impairments will, as a factual matter, virtually always be found to
impose a substantial limitation on a major life activity. Therefore,
with respect to these types of impairments, the necessary
individualized assessment should be particularly simple and
straightforward.
(iii) For example, applying these principles it should easily be
concluded that the types of impairments set forth in paragraphs
(d)(2)(iii)(A) through (K) of this section will, at a minimum,
substantially limit the major life activities indicated. The types of
impairments described in this paragraph may substantially limit
additional major life activities (including major bodily functions) not
explicitly listed in paragraphs (d)(2)(iii)(A) through (K).
(A) Deafness substantially limits hearing;
(B) Blindness substantially limits seeing;
(C) Intellectual disability substantially limits brain function;
(D) Partially or completely missing limbs or mobility impairments
requiring the use of a wheelchair substantially limit musculoskeletal
function;
(E) Autism Spectrum Disorder substantially limits brain function;
(F) Cancer substantially limits normal cell growth;
(G) Cerebral palsy substantially limits brain function;
(H) Diabetes substantially limits endocrine function;
(I) Epilepsy, muscular dystrophy, and multiple sclerosis each
substantially limits neurological function;
(J) Human Immunodeficiency Virus (HIV) infection substantially
limits immune function; and
(K) Major depressive disorder, bipolar disorder, post-traumatic
stress disorder, traumatic brain injury, obsessive compulsive disorder,
and schizophrenia each substantially limits brain function.
(3) Condition, manner, or duration. (i) At all times taking into
account the principles set forth in the rules of construction, in
determining whether an individual is substantially limited in a major
life activity, it may be useful in appropriate cases to consider, as
compared to most people in the general population, the conditions under
which the individual performs the major life activity; the manner in
which the individual performs the major life activity; or the duration
of time it takes the individual to perform the major life activity, or
for which the individual can perform the major life activity.
(ii) Consideration of facts such as condition, manner, or duration
may include, among other things, consideration of the difficulty,
effort or time required to perform a major life activity; pain
experienced when performing a major life activity; the length of time a
major life activity can be performed; or the way an impairment affects
the operation of a major bodily function. In addition, the non-
ameliorative effects of mitigating measures, such as negative side
effects of medication or burdens associated with following a particular
treatment regimen, may be considered when determining whether an
individual's impairment substantially limits a major life activity.
(iii) In determining whether an individual has a disability under
the ``actual disability'' or ``record of'' prongs of the definition of
``disability,'' the focus is on how a major life activity is
substantially limited, and not on what outcomes an individual can
achieve. For
[[Page 63498]]
example, someone with a learning disability may achieve a high level of
academic success, but may nevertheless be substantially limited in one
or more major life activities, including, but not limited to, reading,
writing, speaking, or learning because of the additional time or effort
he or she must spend to read, write, speak, or learn compared to most
people in the general population.
(iv) Given the rules of construction set forth in this section, it
may often be unnecessary to conduct an analysis involving most or all
of the facts related to condition, manner, or duration. This is
particularly true with respect to impairments such as those described
in paragraph (d)(2)(iii) of this section, which by their inherent
nature should be easily found to impose a substantial limitation on a
major life activity, and for which the individualized assessment should
be particularly simple and straightforward.
(4) Mitigating measures include, but are not limited to:
(i) Medication, medical supplies, equipment, appliances, low-vision
devices (defined as devices that magnify, enhance, or otherwise augment
a visual image, but not including ordinary eyeglasses or contact
lenses), prosthetics including limbs and devices, hearing aid(s) and
cochlear implant(s) or other implantable hearing devices, mobility
devices, and oxygen therapy equipment and supplies;
(ii) Use of assistive technology;
(iii) Reasonable modifications or auxiliary aids or services as
defined in this part;
(iv) Learned behavioral or adaptive neurological modifications; or
(v) Psychotherapy, behavioral therapy, or physical therapy.
(e) Has a record of such an impairment--(1) General. An individual
has a record of such an impairment if the individual has a history of,
or has been misclassified as having, a mental or physical impairment
that substantially limits one or more major life activities.
(2) Broad construction. Whether an individual has a record of an
impairment that substantially limited a major life activity shall be
construed broadly to the maximum extent permitted by section 504 and
should not demand extensive analysis. An individual will be considered
to fall within this prong of the definition of ``disability'' if the
individual has a history of an impairment that substantially limited
one or more major life activities when compared to most people in the
general population or was misclassified as having had such an
impairment. In determining whether an impairment substantially limited
a major life activity, the principles articulated in paragraph (d)(1)
of this section apply.
(3) Reasonable modification. An individual with a record of a
substantially limiting impairment may be entitled to a reasonable
modification if needed and related to the past disability.
(f) Is regarded as having such an impairment. The following
principles apply under the ``regarded'' as prong of the definition of
``disability'' in paragraph (a)(1)(iii) of this section:
(1) Except as set forth in paragraph (f)(2) of this section, an
individual is ``regarded as having such an impairment'' if the
individual is subjected to a prohibited action because of an actual or
perceived physical or mental impairment, whether or not that impairment
substantially limits, or is perceived to substantially limit, a major
life activity, even if the recipient asserts, or may or does ultimately
establish, a defense to the action prohibited by section 504.
(2) An individual is not ``regarded as having such an impairment''
if the recipient demonstrates that the impairment is, objectively, both
``transitory'' and ``minor.'' A recipient may not defeat ``regarded
as'' coverage of an individual simply by demonstrating that it
subjectively believed the impairment was transitory and minor; rather,
the recipient must demonstrate that the impairment is (in the case of
an actual impairment) or would be (in the case of a perceived
impairment), objectively, both ``transitory'' and ``minor.'' For
purposes of this section, ``transitory'' is defined as lasting or
expected to last six months or less.
(3) Establishing that an individual is ``regarded as having such an
impairment'' does not, by itself, establish liability. Liability is
established under section 504 only when an individual proves that a
recipient discriminated on the basis of disability within the meaning
of section 504.
(g) Exclusions. The term ``disability'' does not include--
(1) Transvestism, transsexualism, pedophilia, exhibitionism,
voyeurism, gender identity disorders not resulting from physical
impairments, or other sexual behavior disorders;
(2) Compulsive gambling, kleptomania, or pyromania; or
(3) Psychoactive substance use disorders resulting from current
illegal use of drugs.
Sec. 84.6 [Amended]
0
9. In Sec. 84.6 remove the word(s) in the left column in the following
table and add in its place the word(s) in the right column wherever it
occurs:
------------------------------------------------------------------------
Handicap Disability
------------------------------------------------------------------------
handicapped persons....................... persons with disabilities
------------------------------------------------------------------------
0
10. Revise Sec. 84.8 to read as follows:
Sec. 84.8 Notice.
A recipient shall make available to employees, applicants,
participants, beneficiaries, and other interested persons information
regarding the provisions of this part and its applicability to the
programs or activities of the recipient, and make such information
available to them in such manner as the head of the recipient or his or
her designee finds necessary to apprise such persons of the protections
against discrimination assured them by section 504 and this part.
0
11. Amend newly redesignated Sec. 84.10 as follows:
0
a. Remove the alphabetical paragraph designations and arrange the
definitions in alphabetical order;
0
b. Add definitions in alphanumerical order for ``2004 ADA Accessibility
Guidelines (ADAAG)'', ``2010 Standards'', and ``ADA'';
0
c. Remove the definition for ``Applicant for assistance'' and add in
its place a definition for ``Applicant'';
0
d. Add definitions in alphabetical order for ``Architectural Barriers
Act'', ``archived web content'', and ``auxiliary aids and services'';
0
e. Add definitions in alphabetical order for ``companion'',
``conventional electronic devices'', ``current illegal use of drugs'',
``direct threat'', ``disability'', and ``drug'';
0
f. Remove the definition of ``Education of the Handicapped Act'';
0
g. Add a definition in alphabetical order for ``Existing facility'';
0
h. Revise the definitions of ``facility'' and ``Federal financial
assistance'';
0
i. Add a definition in alphabetical order for ``foster care'';
0
j. Remove the definitions of ``handicap'', ``handicapped person'';
0
k. Add definitions in alphabetical order for ``illegal use of drugs''
and ``individual with a disability'', ``kiosks'', ``medical diagnostic
equipment MDE'', ``mobile applications (apps)'', ``most integrated
setting'', ``other power-driven mobility device,'' and ``parents'';
0
l. Revise the definition of ``program or activity'';
0
m. Add definitions in alphabetical order for ``prospective parents'',
``qualified individual with a disability'', ``qualified interpreter'',
and ``qualified reader'';
[[Page 63499]]
0
n. Remove the definition of ``qualified handicapped person'';
0
o. Revise the definition of ``section 504'';
0
p. Add definitions in alphabetical order for ``service animal'',
``Standards for Accessible Medical Diagnostic Equipment (``Standards
for Accessible MDE'')'', and ``State'';
0
q. Remove the definition of ``the Act''; and
0
r. Add definitions in alphabetical order for ``ultimate beneficiary'',
``video remote interpreting (VRI)'', ``WCAG 2.1'', ``web content'', and
``wheelchair''.
The additions and revisions read as follows:
Sec. 84.10 Definitions.
2004 ADA Accessibility Guidelines (ADAAG) means the requirements
set forth in appendices B and D to 36 CFR 1191 (2009).
2010 Standards means the 2010 ADA Standards for Accessible Design,
which consist of the 2004 ADAAG and the requirements contained in 28
CFR 35.151.
ADA means the Americans with Disabilities Act (Pub. L. 101-336, 104
Stat. 327, 42 U.S.C. 12101-12213 and 47 U.S.C. 225 and 611), including
changes made by the ADA Amendments Act of 2008 (Pub. L. 110-325), which
became effective on January 1, 2009.
Applicant means one who submits an application, request, or plan
required to be approved by the designated Department official or by a
primary recipient, as a condition of eligibility for Federal financial
assistance.
Architectural Barriers Act means the Architectural Barriers Act (42
U.S.C. 4151-4157), including the Architectural Barriers Act
Accessibility Standards at 41 CFR 102-76.60 et seq.
Archived web content means web content that--
(1) Is maintained exclusively for reference, research, or
recordkeeping;
(2) Is not altered or updated after the date of archiving; and
(3) Is organized and stored in a dedicated area or areas clearly
identified as being archived.
Auxiliary aids and services include:
(1) Qualified interpreters on-site or through video remote
interpreting (VRI) services; notetakers; real-time computer-aided
transcription services; written materials; exchange of written notes;
telephone handset amplifiers; assistive listening devices; assistive
listening systems; telephones compatible with hearing aids; closed
caption decoders; open and closed captioning, including real-time
captioning; voice, text, and video-based telecommunications products
and systems, including text telephones (TTYs), videophones, and
captioned telephones, or equally effective telecommunications devices;
videotext displays; accessible electronic and information technology;
or other effective methods of making aurally delivered information
available to individuals who are deaf or hard of hearing;
(2) Qualified readers; taped texts; audio recordings; Braille
materials and displays; screen reader software; magnification software;
optical readers; secondary auditory programs (SAP); large print
materials; accessible electronic and information technology; or other
effective methods of making visually delivered materials available to
individuals who are blind or have low vision;
(3) Acquisition or modification of equipment or devices; and
(4) Other similar services and actions.
Companion means a family member, friend, or associate of an
individual seeking access to a program or activity of a recipient, who,
along with such individual, is an appropriate person with whom the
recipient should communicate.
Conventional electronic documents means web content or content in
mobile apps that is in the following electronic file formats: portable
document formats (PDF), word processor file formats, presentation file
formats, spreadsheet file formats, and database file formats.
Current illegal use of drugs means illegal use of drugs that
occurred recently enough to justify a reasonable belief that a person's
drug use is current or that continuing use is a real and ongoing
problem.
* * * * *
Direct threat means:
(1) Except as provided in paragraph (2) of this definition, 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 as provided in Sec.
84.75.
(2) With respect to employment as provided in Sec. 84.12, the term
as defined by the Equal Employment Opportunity Commission's regulation
implementing title I of the Americans with Disabilities Act of 1990, at
29 CFR 1630.2(r).
* * * * *
Disability means:
(1) Except as provided in paragraph (2) of this definition, the
definition of disability found at Sec. 84.4.
(2) With respect to employment, the definition of disability found
at 29 CFR 1630.2:
Drug means a controlled substance, as defined in schedules I
through V of section 202 of the Controlled Substances Act (21 U.S.C.
812).
Existing facility means a facility in existence on any given date,
without regard to whether the facility may also be considered newly
constructed or altered under this part.
Facility means all or any portion of buildings, structures, sites,
complexes, equipment, rolling stock or other conveyances, roads, walks,
passageways, parking lots, or other real or personal property,
including the site where the building, property, structure, or
equipment is located.
Federal financial assistance means any grant, cooperative
agreement, loan, contract (other than a direct Federal procurement
contract or a contract of insurance or guaranty), subgrant, contract
under a grant or any other arrangement by which the Department provides
or otherwise makes available assistance in the form of:
(1) Funds;
(2) Services of Federal personnel;
(3) Real and personal property or any interest in or use of such
property, including:
(i) Transfers or leases of such property for less than fair market
value or for reduced consideration; and
(ii) Proceeds from a subsequent transfer or lease of such property
if the Federal share of its fair market value is not returned to the
Federal Government;
(4) Any other thing of value by way of grant, loan, contract, or
cooperative agreement.
Foster care means 24-hour substitute care for children placed away
from their parents or guardians and for whom the State agency has
placement and care responsibility. This includes, but is not limited
to, placements in foster family homes, foster homes of relatives, group
homes, emergency shelters, residential facilities, childcare
institutions, and pre-adoptive homes. A child is in foster care in
accordance with this definition regardless of whether the foster care
facility is licensed and payments are made by the State or local agency
for the care of the child, whether adoption subsidy payments are being
made prior to the finalization of an adoption, or whether there is
Federal matching of any payments that are made.
Illegal use of drugs means the use of one or more drugs, the
possession or distribution of which is unlawful under the Controlled
Substances Act (21 U.S.C. 812). The term illegal use of drugs does not
include the use of a drug taken under supervision by a licensed health
care professional, or other uses authorized by the Controlled
Substances Act or other provisions of Federal law.
[[Page 63500]]
Individual with a disability means a person who has a disability.
The term individual with a disability does not include an individual
who is currently engaging in the illegal use of drugs, when a recipient
acts on the basis of such use.
Kiosks means self-service transaction machines made available by
recipients at set physical locations for the independent use of
patients or program participants in health and human service programs
or activities. They often consist of a screen and an input device--
either a keyboard, touch screen, or similar device--onto which the
program participant independently types in or otherwise enters
information. In health and human service programs, recipients often
make kiosks available so that patients or program participants can
check in, provide information for the receipt of services, procure
services, have their vital signs taken, or perform other similar
actions.
Medical diagnostic equipment MDE means equipment used in, or in
conjunction with, medical settings by health care providers for
diagnostic purposes. MDE includes, for example, examination tables,
examination chairs (including chairs used for eye examinations or
procedures, and dental examinations or procedures), weight scales,
mammography equipment, x-ray machines, and other radiological equipment
commonly used for diagnostic purposes by health professionals.
Mobile applications (apps) means software applications that are
downloaded and designed to run on mobile devices, such as smartphones
and tablets.
Most integrated setting means a setting that provides individuals
with disabilities the opportunity to interact with non-disabled persons
to the fullest extent possible; is located in mainstream society;
offers access to community activities and opportunities at times,
frequencies and with persons of an individual's choosing; and affords
individuals choice in their daily life activities.
Other power-driven mobility device means any mobility device
powered by batteries, fuel, or other engines--whether or not designed
primarily for use by individuals with mobility disabilities--that is
used by individuals with mobility disabilities for the purpose of
locomotion, including golf cars, electronic personal assistance
mobility devices (EPAMDs), such as the Segway[supreg] PT, or any
mobility device designed to operate in areas without defined pedestrian
routes, but that is not a wheelchair within the meaning of this
section. This definition does not apply to Federal wilderness areas;
wheelchairs in such areas are defined in section 508(c)(2) of the ADA,
42 U.S.C. 12207(c)(2).
Parents means biological or adoptive parents or legal guardians, as
determined by applicable State law.
Program or activity means all of the operations of any entity
described in paragraphs (1) through (4) of this definition, any part of
which is extended Federal financial assistance:
(1)(i) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
(ii) The entity of such State or local government that distributes
such assistance and each such department or agency (and each other
State or local government entity) to which the assistance is extended,
in the case of assistance to a State or local government;
(2)(i) A college, university, or other postsecondary institution, a
public system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 7801),
system of career and technical education, or other school system;
(3)(i) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(A) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(ii) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(4) Any other entity which is established by two or more of the
entities described in paragraph (1), (2), or (3) of this definition.
Prospective parents means individuals who are seeking to become
foster or adoptive parents.
Qualified individual with a disability means:
(1) Except as provided in paragraphs (2), (3), and (4) of this
definition, an individual with a disability who, with or without
reasonable modifications to rules, policies, or practices, the removal
of architectural, communication, or transportation barriers, or the
provision of auxiliary aids and services, meets the essential
eligibility requirements for the receipt of services or the
participation in programs or activities provided by a recipient; and
(2) With respect to employment, an individual with a disability who
meets the definition of ``qualified'' in the Equal Employment
Opportunity Commission's regulation implementing title I of the
Americans with Disabilities Act of 1990, 29 CFR 1630.2(m).
(3) With respect to childcare, preschool, elementary, secondary, or
adult educational services, a person with a disability--
(i) Of an age during which nondisabled persons are provided such
services;
(ii) Of any age during which it is mandatory under State law to
provide such services to persons with a disability; or
(iii) To whom a State is required to provide a free appropriate
public education under the Individuals with Disabilities Education Act;
and
(4) With respect to postsecondary and career and technical
education services, a person with a disability who with or without
reasonable modifications to policies, practices, or procedures, or the
provision of auxiliary aids and services, meets the academic and
technical requirements for receipt of services or the participation in
the recipient's program or activity;
Qualified interpreter means an interpreter who, via an on-site
appearance or through a video remote interpreting (VRI) service, is
able to interpret effectively, accurately, and impartially, both
receptively and expressively, using any necessary specialized
vocabulary. Qualified interpreters include, for example, sign language
interpreters, oral transliterators, and cued-language transliterators.
Qualified reader means a person who is able to read effectively,
accurately, and impartially using any necessary specialized vocabulary.
* * * * *
Section 504 means section 504 of the Rehabilitation Act of 1973
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended.
Service animal means any dog that is individually trained to do
work or perform tasks for the benefit of an individual with a
disability, including a physical, sensory, psychiatric, intellectual,
or other mental disability. Other species of animals, whether wild or
domestic, trained or untrained, are not service animals for the
purposes of this definition. The work or tasks performed by a service
animal must be
[[Page 63501]]
directly related to the individual's disability. Examples of work or
tasks include, but are not limited to, assisting individuals who are
blind or have low vision with navigation and other tasks, alerting
individuals who are deaf or hard of hearing to the presence of people
or sounds, providing non-violent protection or rescue work, pulling a
wheelchair, assisting an individual during a seizure, alerting
individuals to the presence of allergens, retrieving items such as
medicine or the telephone, providing physical support and assistance
with balance and stability to individuals with mobility disabilities,
and helping persons with mental and neurological disabilities by
preventing or interrupting impulsive or harmful behaviors. The crime
deterrent effects of an animal's presence and the provision of
emotional support, well-being, comfort, or companionship do not
constitute work or tasks for the purposes of this definition.
Standards for Accessible Medical Diagnostic Equipment (``Standards
for Accessible MDE'') means the standards at 36 CFR part 1195,
promulgated by the Architectural and Transportation Barriers Compliance
Board (Access Board) under section 510 of the Rehabilitation Act of
1973, as amended, in effect as of the date of promulgation of the final
version of this rule, found in the appendix to 36 CFR part 1195.
State means each of the several States, the District of Columbia,
the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin
Islands, the Trust Territory of the Pacific Islands, and the
Commonwealth of the Northern Mariana Islands.
Ultimate beneficiary means one among a class of persons who are
entitled to benefit from, or otherwise participate in, a program or
activity receiving Federal financial assistance and to whom the
protections of this part extend. The ultimate beneficiary class may be
the general public or some narrower group of persons.
Video remote interpreting (VRI) service means an interpreting
service that uses video conference technology over dedicated lines or
wireless technology offering high-speed, wide-bandwidth video
connection that delivers high-quality video images as provided in Sec.
84.77(d).
WCAG 2.1 means the Web Content Accessibility Guidelines (WCAG) 2.1,
W3C[supreg] Recommendation 05 June 2018, https://www.w3.org/TR/2018/REC-WCAG21-20180605/ [https://perma.cc/UB8A-GG2F]. WCAG 2.1 is
incorporated by reference elsewhere in this part (see Sec. Sec. 84.84
and 84.86).
Web content means information or sensory experience--including the
encoding that defines the content's structure, presentation, and
interactions--that is communicated to the user by a web browser or
other software. Examples of web content include text, images, sounds,
videos, controls, animations, and conventional electronic documents.
Wheelchair means a manually-operated or power-driven device
designed primarily for use by an individual with a mobility disability
for the main purpose of indoor, or of both indoor and outdoor
locomotion. This definition does not apply to Federal wilderness areas;
wheelchairs in such areas are defined in section 508(c)(2) of the ADA,
42 U.S.C. 12207(c)(2).
0
12. Revise subpart B to read as follows:
Subpart B--Employment Practices
Sec.
84.16 Discrimination prohibited.
84.17-84.20 [Reserved]
Subpart B--Employment Practices
Sec. 84.16 Discrimination prohibited.
(a) No qualified individual with a disability shall, on the basis
of disability, be subjected to discrimination in employment under any
program or activity receiving Federal financial assistance from the
Department.
(b) The standards used to determine whether paragraph (a) of this
section has been violated shall be the standards applied under title I
of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12111
et seq., and, as such sections relate to employment, the provisions of
sections 501 through 504 and 511 of the ADA of 1990, as amended
(codified at 42 U.S.C. 12201-12204, 12210), as implemented in the Equal
Employment Opportunity Commission's regulation at 29 CFR part 1630.
Sec. Sec. 84.17-84.20 [Reserved]
Subpart C--Program Accessibility
0
13. Revise Sec. 84.21 to read as follows:
Sec. 84.21 Discrimination prohibited.
Except as otherwise provided in Sec. 84.22, no qualified
individual with a disability shall, because a recipient's facilities
are inaccessible to or unusable by individuals with disabilities, be
excluded from participation in, or be denied the benefits of the
programs or activities of a recipient, or be subjected to
discrimination by any recipient.
0
14. Amend Sec. 84.22 by:
0
a. Revising paragraphs (a) and (b);
0
b. Removing the words ``handicapped person'' and adding in its place
the words ``person with a disability'' wherever they occur in paragraph
(c);
0
c. Removing the words ``handicapped persons'' and adding in their place
the words ``persons with disabilities'' wherever they occur in
paragraphs (e) introductory text, (e)(1), and (f); and
0
d. Adding paragraph (g).
The revisions and addition read as follows:
Sec. 84.22 Existing facilities.
(a) General. A recipient shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with disabilities. This
paragraph does not--
(1) Necessarily require a recipient to make each of its existing
facilities accessible to and usable by individuals with disabilities;
or
(2) Require a recipient to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or undue financial and administrative burdens. In those
circumstances where a recipient's personnel believe that the proposed
action would fundamentally alter the program or activity or would
result in undue financial and administrative burdens, the recipient has
the burden of proving that compliance with this paragraph (a) would
result in such an alteration or burdens The decision that compliance
would result in such alteration or burdens must be made by the head of
the recipient or their designee after considering all the recipient's
resources available for use in the funding and operation of the program
or activity and must be accompanied by a written statement of the
reasons for reaching that conclusion. If an action would result in such
an alteration or such burdens, the recipient shall take any other
action that would not result in such an alteration or such burdens but
would nevertheless ensure that individuals with disabilities receive
the benefits or services provided by the recipient.
(b) Methods. A recipient may comply with the requirements of this
section through such means as redesign or acquisition of equipment,
reassignment of services to accessible buildings, assignment of aides
to beneficiaries, home visits, delivery of services at alternate
accessible sites, alteration of existing facilities and construction of
new facilities, use of accessible rolling stock or other conveyances,
or any other methods that result in making its programs or activities
readily accessible to and usable by individuals with
[[Page 63502]]
disabilities. A recipient is not required to make structural changes in
existing facilities where other methods are effective in achieving
compliance with this section. A recipient shall, in making alterations
to existing buildings, meet the accessibility requirements of Sec.
84.23. In choosing among available methods for meeting the requirements
of this section, a recipient shall give priority to those methods that
offer programs and activities to qualified individuals with
disabilities in the most integrated setting appropriate.
* * * * *
(g) Safe harbor. Elements that have not been altered in existing
facilities on or after [EFFECTIVE DATE OF FINAL RULE], and that comply
with the corresponding technical and scoping specifications for those
elements in the American National Standard Specification (ANSI A117.1-
1961(R1971) for facilities constructed between June 3, 1977, and
January 18, 1991) or for those elements in the Uniform Federal
Accessibility Standards (UFAS), appendix A to 41 CFR 101-19.6 (July 1,
2002 ed.), 49 FR 31528, app. A (Aug. 7, 1984), for those facilities
constructed between January 18, 1991, and [EFFECTIVE DATE OF FINAL
RULE] are not required to be modified to comply with the requirements
set forth in the 2010 Standards.
0
15. Revise Sec. 84.23 to read as follows:
Sec. 84.23 New construction and alterations.
(a) Design and construction. Each facility or part of a facility
constructed by, on behalf of, or for the use of a recipient shall be
designed and constructed in such manner that the facility or part of
the facility is readily accessible to and usable by individuals with
disabilities, if the construction was commenced after June 3, 1977.
(b) Alterations. Each facility or part of a facility altered by, on
behalf of, or for the use of a recipient in a manner that affects or
could affect the usability of the facility or part of the facility
shall, to the maximum extent feasible, be altered in such manner that
the altered portion of the facility is readily accessible to and usable
by individuals with disabilities, if the alteration was commenced after
June 3, 1977.
(c) Accessibility standards and compliance dates for recipients
that are public entities. (1) The accessibility standards and
compliance dates in this subsection apply to recipients that are public
entities. Public entities are any State or local government; any
department, agency, special purpose district, or other instrumentality
of a State or States or local government; and The National Railroad
Passenger Corporation, and any commuter authority (as defined in
section 103(8) of the Rail Passenger Service Act). (45 U.S.C. 541.)
(2) If physical construction or alterations commenced after June 3,
1977, but before January 18, 1991, then construction and alterations
subject to this section shall be deemed in compliance with this section
if they meet the requirements of the ANSI Standards (ANSI A117.1-
1961(R1971) (ANSI). Departures from particular requirements of ANSI by
the use of other methods are permitted when it is clearly evident that
equivalent access to the facility or part of the facility is provided.
(3) If physical construction or alterations commence on or after
January 18, 1991, but before [EFFECTIVE DATE OF FINAL RULE], then new
construction and alterations subject to this section shall be deemed in
compliance with this section if they meet the requirements of the
Uniform Federal Accessibility Standards (UFAS). Departures from
particular requirements of UFAS by the use of other methods shall be
permitted when it is clearly evident that equivalent access to the
facility or part of the facility is thereby provided.
(4) For physical construction or alterations that commence on or
after [EFFECTIVE DATE OF FINAL RULE] but before [DATE ONE YEAR FROM
PUBLICATION DATE OF FINAL RULE IN THE FEDERAL REGISTER], then new
construction and alterations subject to this section may comply with
either UFAS or the 2010 Standards. Departures from particular
requirements of either standard by the use of other methods shall be
permitted when it is clearly evident that equivalent access to the
facility or part of the facility is thereby provided.
(5) If physical construction or alterations commence on or after
[DATE ONE YEAR FROM PUBLICATION DATE OF FINAL RULE IN THE FEDERAL
REGISTER], then new construction and alterations subject to this
section shall comply with the 2010 Standards.
(6) For the purposes of this section, ceremonial groundbreaking or
razing of structures prior to site preparation do not commence physical
construction or alterations.
(d) Accessibility standards and compliance dates for recipients
that are private entities. (1) The accessibility standards and
compliance dates in this subsection apply to recipients that are
private entities. Private entities are any person or entity other than
a public entity.
(2) New construction and alterations subject to this section shall
comply with ANSI if the date when the last application for a building
permit or permit extension is certified to be complete by a State,
county, or local government or, in those jurisdictions where the
government does not certify completion of applications, if the date
when the last application for a building permit or permit extension is
received by the State, county, or local government between June 3, 1977
and January 18, 1991, or if no permit is required, if the start of
physical construction or alterations occurs between June 3, 1977 and
January 18, 1991.
(3) New construction and alterations subject to this section shall
comply with UFAS if the date when the last application for a building
permit or permit extension is certified to be complete by a State,
county, or local government (or, in those jurisdictions where the
government does not certify completion of applications, if the date
when the last application for a building permit or permit extension is
received by the State, county, or local government) is on or after
January 18, 1991, and before [EFFECTIVE DATE OF FINAL RULE], or if no
permit is required, if the start of physical construction or
alterations occurs on or after January 18, 1991, and before [EFFECTIVE
DATE OF FINAL RULE].
(4) New construction and alterations subject to this section shall
comply either with UFAS or the 2010 Standards if the date when the last
application for a building permit or permit extension is certified to
be complete by a State, county, or local government (or, in those
jurisdictions where the government does not certify completion of
applications, if the date when the last application for a building
permit or permit extension is received by the State, county, or local
government) is on or after [EFFECTIVE DATE OF FINAL RULE], and before
[DATE ONE YEAR FROM PUBLICATION DATE OF FINAL RULE IN THE FEDERAL
REGISTER], or if no permit is required, if the start of physical
construction or alterations occurs on or after [EFFECTIVE DATE OF FINAL
RULE], and before [DATE ONE YEAR FROM PUBLICATION DATE OF FINAL RULE IN
THE FEDERAL REGISTER].
(5) New construction and alterations subject to this section shall
comply with the 2010 Standards if the date when the last application
for a building permit or permit extension is certified to be complete
by a State, county, or local
[[Page 63503]]
government (or, in those jurisdictions where the government does not
certify completion of applications, if the date when the last
application for a building permit or permit extension is received by
the State, county, or local government) is on or after [DATE ONE YEAR
FROM PUBLICATION DATE OF FINAL RULE IN THE FEDERAL REGISTER], or if no
permit is required, if the start of physical construction or
alterations occurs on or after [DATE ONE YEAR FROM PUBLICATION DATE OF
FINAL RULE IN THE FEDERAL REGISTER].
(6) For the purposes of this section, ceremonial groundbreaking or
razing of structures prior to site preparation do not commence physical
construction or alterations.
(e) Noncomplying new construction and alterations. (1) Newly
constructed or altered facilities or elements covered by paragraph (a)
or (b) of this section that were constructed or altered between June 3,
1977, and January 18, 1991, and that do not comply with ANSI shall be
made accessible in accordance with the 2010 Standards.
(2) Newly constructed or altered facilities or elements covered by
paragraph (a) or (b) of this section that were constructed or altered
on or after January 18, 1991 and before [DATE ONE YEAR FROM PUBLICATION
DATE OF FINAL RULE IN THE FEDERAL REGISTER], and that do not comply
with UFAS shall before [DATE ONE YEAR FROM PUBLICATION DATE OF FINAL
RULE IN THE FEDERAL REGISTER], be made accessible in accordance with
either UFAS, or the 2010 Standards.
(3) Newly constructed or altered facilities or elements covered by
paragraph (a) or (b) of this section that were constructed or altered
before [DATE ONE YEAR FROM PUBLICATION DATE OF FINAL RULE IN THE
FEDERAL REGISTER] and that do not comply with ANSI (for facilities
constructed or altered between June 3, 1977, and January 18, 1991) or
UFAS (for facilities constructed or altered on or after January 18,
1991) shall, on or after [DATE ONE YEAR FROM PUBLICATION DATE OF FINAL
RULE IN THE FEDERAL REGISTER], be made accessible in accordance with
the 2010 Standards.
(f) Public buildings or facilities requirements. New construction
and alterations of buildings or facilities undertaken in compliance
with the 2010 Standards will comply with the scoping and technical
requirements for a ``public building or facility'' regardless of
whether the recipient is a public entity as defined in 28 CFR 35.104 or
a private entity.
(g) Compliance with the Architectural Barriers Act of 1968. Nothing
in this section relieves recipients whose facilities are covered by the
Architectural Barriers Act, from their responsibility of complying with
the requirements of that Act and any implementing regulations.
(h) Mechanical rooms. For purposes of this section, section
4.1.6(1)(g) of UFAS will be interpreted to exempt from the requirements
of UFAS only mechanical rooms and other spaces that, because of their
intended use, will not require accessibility to the public or
beneficiaries or result in the employment or residence therein of
individuals with physical disabilities.
0
16. Revise the heading of subpart D to read as follows:
Subpart D--Childcare, Preschool, Elementary and Secondary, and
Adult Education
0
17. Revise Sec. 84.31 to read as follows:
Sec. 84.31 Application of this subpart.
Subpart D applies to childcare, preschool, elementary and
secondary, and adult education programs or activities that receive
Federal financial assistance and to recipients that operate, or that
receive Federal financial assistance for the operation of, such
programs or activities.
Sec. Sec. 84.32 through 84.37 [Removed and Reserved]
0
18. Remove and reserve Sec. Sec. 84.32 through 84.37.
0
19. Revise Sec. 84.38 to read as follows:
Sec. 84.38 Childcare, Preschool, Elementary and Secondary, and Adult
Education.
A recipient to which this subpart applies that provides childcare,
preschool, elementary and secondary, or adult education may not, on the
basis of disability, exclude qualified individuals with disabilities
and shall take into account the needs of such persons in determining
the aids, benefits, or services to be provided.
Sec. 84.39 [Removed and Reserved]
0
20. Remove and reserve Sec. 84.39.
Subpart E--Postsecondary Education
Sec. 84.42 [Amended]
0
21. Amend Sec. 84.42 by:
0
a. Removing the word ``handicap'' and adding in its place the word
``disability' in paragraphs (a) and (b)(3)(i);
0
b. Removing the words ``handicapped persons'' and adding in their place
the words ``individuals with disabilities'' in paragraphs (a), (b)(1),
and (b)(2) introductory text (two times);
0
c. Removing the words ``handicapped person'' and adding in their place
the words ``individual with a disability'' in paragraph (b)(4); and
0
d. Removing the word ``handicapped'' and adding in its place the word
``disabled'' in paragraph (c) introductory text.
Sec. 84.43 [Amended]
0
22. Amend Sec. 84.43 by:
0
a. Removing the words ``handicapped student'' and adding in its place
the words ``student with disabilities'' in paragraphs (a) and (c);
0
b. Removing the word ``handicap'' and adding in its place the word
``disability'' in paragraphs (a) and (c); and
0
c. Removing the words ``handicapped persons'' and adding in their place
the words ``individuals with disabilities'' in paragraph (b).
Sec. 84.44 [Amended]
0
23. Amend Sec. 84.44 by:
0
a. Removing the word ``handicap'' and adding in its place the word
``disability'' in paragraphs (a) and (c);
0
b. Removing the word ``handicapped'' and adding in its place the word
``disabled'' in its place in paragraph (a);
0
c. Removing the words ``handicapped students'' and adding in their
place the words ``students with disabilities'' in two places in
paragraph (b); and
0
d. Removing the words ``handicapped student'' and adding in its place
the words ``student with disabilities'' in paragraph (d)(1).
Sec. 84.45 [Amended]
0
24. Amend Sec. 84.45 by:
0
a. Removing the words ``nonhandicapped students'' and adding in their
place two times the words ``students without disabilities'' in
paragraph (a);
0
b. Removing the words ``handicapped students'' and adding in their
place the words ``students with disabilities'' in paragraph (a);
0
c. Removing the words ``handicapped students' '' and adding in their
place the words ``students with disabilities' '' in paragraph (a); and
0
d. Removing the word ``handicap'' and adding in its place the word
``disability'' in paragraph (b).
Sec. 84.46 [Amended]
0
25. Amend Sec. 84.46 by:
0
a. Removing the word ``handicap'' and adding in its place the word
``disability'' wherever it occurs in paragraph (a);
0
b. Removing the words ``handicapped persons'' and adding in its place
the
[[Page 63504]]
words ``individuals with disabilities'' in two places in paragraph
(a)(1);
0
c. Removing the words ``nonhandicapped persons'' and adding in their
place the words ``individuals without disabilities'' in paragraph
(a)(1).
Sec. 84.47 [Amended]
0
26. Amend Sec. 84.47 by:
0
a. Removing the word ``handicap'' and adding in its place the word
``disability'' in paragraphs (a)(1) and (b);
0
b. Removing the words ``handicapped students'' and adding in their
place the words ``students with disabilities'' in paragraphs (a)(1) and
(2) and paragraph (b);
0
c. Removing the words ``handicapped student'' and adding in their place
the words ``student with disabilities'' in paragraph (a)(2);
0
d. Removing the words ``handicapped persons'' and adding in its place
the words ``individuals with disabilities'' in paragraph (b); and
0
e. Removing the words ``nonhandicapped students'' and adding in their
place the words ``students without disabilities'' in paragraph (b).
Subpart F--Health, Welfare, and Social Services
Sec. 84.52 [Amended]
0
27. Amend Sec. 84.52 by:
0
a. Removing the words ``handicapped person'' and adding in its place
the words ``individual with a disability'' in paragraphs (a)(1) through
(3);
0
b. Removing the words ``handicapped persons'' and adding in its place
the words ``individuals with disabilities'' in paragraphs (a)(2) and
(4), in two places in paragraph (a)(5), and in paragraph (b); and
0
c. Removing paragraphs (c) and (d).
0
28. Revise Sec. 84.53 to read as follows:
Sec. 84.53 Individuals with substance and alcohol use disorders.
A recipient to which this subpart applies that operates a general
hospital or outpatient facility may not discriminate in admission or
treatment against an individual with a substance or alcohol use
disorder or individual with an alcohol use disorder who is suffering
from a medical condition, because of the person's drug or alcohol use
disorder.
0
29. Revise Sec. 84.54 to read as follows:
Sec. 84.54 Education of institutionalized persons.
A recipient to which this subpart applies and that provides aids,
benefits, or services to persons who are institutionalized because of
disability shall ensure that each qualified individual with
disabilities, as defined in Sec. 84.10, in its program or activity is
provided an appropriate education, consistent with the Department of
Education section 504 regulations at 34 CFR 104.33(b). Nothing in this
section shall be interpreted as altering in any way the obligations of
recipients under subpart D of this part.
Sec. 84.55 [Amended]
0
30. Amend Sec. 84.55 by:
0
a. Removing the words ``handicapped infants'' and adding in their place
the words ``infants with disabilities'' in paragraph (a); and
0
b. Removing and reserving paragraphs (b) through (e).
0
31. Add Sec. Sec. 84.56 and 84.57 to read as follows:
Sec. 84.56 Medical treatment.
(a) Discrimination prohibited. No qualified individual with a
disability shall, on the basis of disability, be subjected to
discrimination in medical treatment under any program or activity that
receives Federal financial assistance, including in the allocation or
withdrawal of any good, benefit, service.
(b) Specific prohibitions. The general prohibition in paragraph (a)
of this section includes the following specific prohibitions:
(1) Denial of medical treatment. A recipient may not deny or limit
medical treatment to a qualified individual with a disability when the
denial is based on:
(i) Bias or stereotypes about a patient's disability;
(ii) Judgments that the individual will be a burden on others due
to their disability, including, but not limited to caregivers, family,
or society; or
(iii) A belief that the life of a person with a disability has
lesser value than the life of a person without a disability, or that
life with a disability is not worth living.
(2) Denial of treatment for a separate symptom or condition. Where
a qualified individual with a disability or their authorized
representative seeks or consents to treatment for a separately
diagnosable symptom or medical condition (whether or not that symptom
or condition is a disability under this part or is causally connected
to the individual's underlying disability), a recipient may not deny or
limit clinically appropriate treatment if it would be offered to a
similarly situated individual without an underlying disability.
(3) Provision of medical treatment. A recipient may not, on the
basis of disability, provide a medical treatment to an individual with
a disability where it would not provide the same treatment to an
individual without a disability, unless the disability impacts the
effectiveness, or ease of administration of the treatment itself, or
has a medical effect on the condition to which the treatment is
directed.
(c) Construction--(1) Professional judgment in treatment. (i)
Nothing in this section requires the provision of medical treatment
where the recipient has a legitimate, nondiscriminatory reason for
denying or limiting that service or where the disability renders the
individual not qualified for the treatment.
(ii) These circumstances include those in which the recipient
typically declines to provide the treatment to any individual, or
reasonably determines based on current medical knowledge or the best
available objective evidence that such medical treatment is not
clinically appropriate for a particular individual. The criteria in
paragraphs (b)(1)(i) through (iii) of this section are not a legitimate
nondiscriminatory reason for denying or limiting medical treatment and
may not be a basis for a determination that an individual is not
qualified for the treatment, or that a treatment is not clinically
appropriate for a particular individual.
(2) Consent. (i) Nothing in this section requires a recipient to
provide medical treatment to an individual where the individual, or
their authorized representative, does not consent to that treatment.
(ii) Nothing in this section allows a recipient to discriminate
against a qualified individual with a disability on the basis of
disability in seeking to obtain consent from an individual or their
authorized representative for the recipient to provide, withhold, or
withdraw treatment.
(3) Providing information. Nothing in this section precludes a
provider from providing an individual with a disability or their
authorized representative with information regarding the implications
of different courses of treatment based on current medical knowledge or
the best available objective evidence.
Sec. 84.57 Value assessment methods.
A recipient shall not, directly or through contractual, licensing,
or other arrangements, use any measure, assessment, or tool that
discounts the value of life extension on the basis of disability to
deny or afford an unequal opportunity to qualified individuals with
disabilities with respect to the eligibility or referral for, or
provision or withdrawal of any aid, benefit, or service, including the
terms or conditions under which they are made available.
[[Page 63505]]
0
32. Add Sec. 84.60 to read as follows:
Sec. 84.60 Children, parents, caregivers, foster parents, and
prospective parents in the child welfare system.
(a) Discriminatory actions prohibited. (1) No qualified individual
with a disability shall, on the basis of disability, be excluded from
participation in, be denied the benefits of, or otherwise be subjected
to discrimination under any child welfare program or activity that
receives Federal financial assistance.
(2) Under the prohibition set forth in the previous subsection,
discrimination includes:
(i) Decisions based on speculation, stereotypes, or generalizations
that a parent, caregiver, foster parent, or prospective parent, because
of a disability, cannot safely care for a child; and
(ii) Decisions based on speculation, stereotypes, or
generalizations about a child with a disability.
(b) Additional prohibitions. The prohibitions in paragraph (a) of
this section apply to actions by a recipient of Federal financial
assistance made directly or through contracts, agreements, or other
arrangements, including any action to:
(1) Deny a qualified parent with a disability custody or control
of, or visitation to, a child;
(2) Deny a qualified parent with a disability an opportunity to
participate in or benefit from reunification services is equal to that
afforded to persons without disabilities;
(3) Terminate the parental rights or legal guardianship of a
qualified individual with a disability; or
(4) Deny a qualified caregiver, foster parent, companion, or
prospective parent with a disability the opportunity to participate in
or benefit from child welfare programs and activities.
(c) Parenting evaluation procedures. A recipient to which this
subpart applies shall establish procedures for referring individuals
who, because of disability, need or are believed to need adapted
services or reasonable modifications, and shall ensure that tests,
assessments, and other evaluation materials, are tailored to assess
specific areas of disability-related needs, and not merely those which
are designed to provide a single general intelligence quotient.
Sec. 84.61 [Removed]
0
33. Remove Sec. 84.61.
0
34. Revise subpart G to read as follows:
Subpart G--General Requirements
Sec.
84.68 General prohibitions against discrimination.
84.69 Illegal use of drugs.
84.70 Maintenance of accessible features.
84.71 Retaliation or coercion.
84.72 Personal devices and services.
84.73 Service animals.
84.74 Mobility devices.
84.75 Direct threat.
84.76 Integration.
Subpart G--General Requirements
Sec. 84.68 General prohibitions against discrimination.
(a) No qualified individual with a disability shall, solely on the
basis of disability, be excluded from participation in or be denied the
benefits of the programs or activities of a recipient, or be subjected
to discrimination by any recipient.
(b)(1) A recipient, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of disability--
(i) Deny a qualified individual with a disability the opportunity
to participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with a disability an opportunity
to participate in or benefit from the aid, benefit, or service that is
not equal to that afforded others.
(iii) Provide a qualified individual with a disability an aid,
benefit, or service that is not as effective in affording equal
opportunity to obtain the same result, to gain the benefit or to reach
the same level of achievement as that provided to others.
(iv) Provide different or separate aids, benefits, or services to
individuals with disabilities or to any class of individuals with
disabilities than is provided to others unless such action is necessary
to provide qualified individuals with disabilities with aids, benefits,
or services that are as effective as those provided to others;
(v) Aid or perpetuate discrimination against a qualified individual
with a disability by providing significant assistance to an agency,
organization, or person that discriminates on the basis of disability
in providing any aid, benefit, or service to beneficiaries of the
recipient's program;
(vi) Deny a qualified individual with a disability the opportunity
to participate as a member of planning or advisory boards;
(vii) Otherwise limit a qualified individual with a disability in
the enjoyment of any right, privilege, advantage, or opportunity
enjoyed by others receiving the aid, benefit, or service.
(2) A recipient may not deny a qualified individual with a
disability the opportunity to participate in programs or activities
that are not separate or different, despite the existence of
permissibly separate or different programs or activities.
(3) A recipient may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration--
(i) That have the effect of subjecting qualified individuals with
disabilities to discrimination on the basis of disability;
(ii) That have the purpose or effect of defeating or substantially
impairing accomplishment of the objectives of the recipient's program
with respect to individuals with disabilities; or
(iii) That perpetuate the discrimination of another recipient if
both recipients are subject to common administrative control or are
agencies of the same state.
(4) A recipient may not, in determining the site or location of a
facility, make selections--
(i) That have the effect of excluding individuals with disabilities
from, denying them the benefits of, or otherwise subjecting them to
discrimination; or
(ii) That have the purpose or effect of defeating or substantially
impairing the accomplishment of the objectives of the program or
activity with respect to individuals with disabilities.
(5) A recipient, in the selection of procurement contractors, may
not use criteria that subject qualified individuals with disabilities
to discrimination on the basis of disability.
(6) A recipient may not administer a licensing or certification
program in a manner that subjects qualified individuals with
disabilities to discrimination on the basis of disability, nor may a
recipient establish requirements for the programs or activities of
licensees or certified entities that subject qualified individuals with
disabilities to discrimination on the basis of disability. The programs
or activities of entities that are licensed or certified by the
recipient are not, themselves, covered by this part.
(7)(i) A recipient shall make reasonable modifications in policies,
practices, or procedures when such modifications are necessary to avoid
discrimination on the basis of disability, unless the recipient can
demonstrate that making the modifications would fundamentally alter the
nature of the program or activity.
(ii) A recipient is not required to provide a reasonable
modification to an individual who meets the definition of
[[Page 63506]]
``disability'' solely under the ``regarded as'' prong of the definition
of disability in this part.
(8) A recipient shall not impose or apply eligibility criteria that
screen out or tend to screen out an individual with a disability or any
class of individuals with disabilities from fully and equally enjoying
any service, program, or activity, unless such criteria can be shown to
be necessary for the provision of the program or activity being
offered.
(c) Nothing in this part prohibits a recipient from providing
benefits, services, or advantages to individuals with disabilities, or
to a particular class of individuals with disabilities beyond those
required by this part.
(d) A recipient shall administer programs and activities in the
most integrated setting appropriate to the needs of qualified
individuals with disabilities.
(e)(1) Nothing in this part shall be construed to require an
individual with a disability to accept a modification, aid, service,
opportunity, or benefit provided under section 504 or this part which
such individual chooses not to accept.
(2) Nothing in section 504 or this part authorizes the
representative or guardian of an individual with a disability to
decline food, water, medical treatment, or medical services for that
individual.
(f) A recipient may not place a surcharge on a particular
individual with a disability or any group of individuals with
disabilities to cover the costs of measures, such as the provision of
auxiliary aids or program accessibility, that are required to provide
that individual or group with the nondiscriminatory treatment required
by section 504 or this part.
(g) A recipient shall not exclude or otherwise deny equal programs
or activities to an individual or entity because of the known
disability of an individual with whom the individual or entity is known
to have a relationship or association.
(h) A recipient may impose legitimate safety requirements necessary
for the safe operation of its programs or activities. However, the
recipient must ensure that its safety requirements are based on actual
risks, not on mere speculation, stereotypes, or generalizations about
individuals with disabilities.
(i) Nothing in this part shall provide the basis for a claim that
an individual without a disability was subject to discrimination
because of a lack of disability, including a claim that an individual
with a disability was granted a reasonable modification that was denied
to an individual without a disability.
Sec. 84.69 Illegal use of drugs.
(a) General. (1) Except as provided in paragraph (b) of this
section, this part does not prohibit discrimination against an
individual based on that individual's current illegal use of drugs.
(2) A recipient shall not discriminate on the basis of illegal use
of drugs against an individual who is not engaging in current illegal
use of drugs and who--
(i) Has successfully completed a supervised drug rehabilitation
program or has otherwise been rehabilitated successfully;
(ii) Is participating in a supervised rehabilitation program; or
(iii) Is erroneously regarded as engaging in such use.
(b) Services provided under the Rehabilitation Act. (1) A recipient
shall not exclude an individual on the basis of that individual's
current illegal use of drugs from the benefits of programs and
activities providing health services and services provided under
subchapters I, II, and III of the Rehabilitation Act, if the individual
is otherwise entitled to such services.
(2) A drug rehabilitation or treatment program may deny
participation to individuals who engage in illegal use of drugs while
they are in the program.
(c) Drug testing. (1) This part does not prohibit the recipient
from adopting or administering reasonable policies or procedures,
including but not limited to drug testing, designed to ensure that an
individual who formerly engaged in the illegal use of drugs is not now
engaging in current illegal use of drugs.
(2) Nothing in paragraph (c) of this section shall be construed to
encourage, prohibit, restrict, or authorize the conduct of testing for
the illegal use of drugs.
Sec. 84.70 Maintenance of accessible features.
(a) A recipient shall maintain in operable working condition those
features of facilities and equipment that are required to be readily
accessible to and usable by persons with disabilities by section 504 or
this part.
(b) This section does not prohibit isolated or temporary
interruptions in service or access due to maintenance or repairs.
(c) For a recipient, if the 2010 Standards reduce the technical
requirements or the number of required accessible elements below the
number required by UFAS, the technical requirements or the number of
accessible elements in a facility subject to this part may be reduced
in accordance with the requirements of the 2010 Standards.
Sec. 84.71 Retaliation or coercion.
(a) A recipient shall not discriminate against any individual
because that individual has opposed any act or practice made unlawful
by this part, or because that individual made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing under section 504 or this part.
(b) A recipient shall not coerce, intimidate, threaten, or
interfere with any individual in the exercise or enjoyment of, or on
account of their having exercised or enjoyed, or on account of their
having aided or encouraged any other individual in the exercise or
enjoyment of any right granted or protected by section 504 or this
part.
Sec. 84.72 Personal devices and services.
This part does not require a recipient to provide to individuals
with disabilities personal devices, such as wheelchairs; individually
prescribed devices, such as prescription eyeglasses or hearing aids;
readers for personal use or study; or services of a personal nature
including assistance in eating, toileting, or dressing.
Sec. 84.73 Service animals.
(a) General. Generally, a recipient shall modify its policies,
practices, or procedures to permit the use of a service animal by an
individual with a disability.
(b) Exceptions. A recipient may ask an individual with a disability
to remove a service animal from the premises if--
(1) The animal is out of control and the animal's handler does not
take effective action to control it; or
(2) The animal is not housebroken.
(c) If an animal is properly excluded. If a recipient properly
excludes a service animal under paragraph (b) of this section, it shall
give the individual with a disability the opportunity to participate in
the program or activity without having the service animal on the
premises.
(d) Animal under handler's control. A service animal shall be under
the control of its handler. A service animal shall have a harness,
leash, or other tether, unless either the handler is unable because of
a disability to use a harness, leash, or other tether, or the use of a
harness, leash, or other tether would interfere with the service
animal's safe, effective performance of work or tasks, in which case
the service animal must be otherwise under the
[[Page 63507]]
handler's control (e.g., voice control, signals, or other effective
means).
(e) Care or supervision. A recipient is not responsible for the
care or supervision of a service animal.
(f) Inquiries. A recipient shall not ask about the nature or extent
of a person's disability but may make two inquiries to determine
whether an animal qualifies as a service animal. A recipient may ask if
the animal is required because of a disability and what work or task
the animal has been trained to perform. A recipient shall not require
documentation, such as proof that the animal has been certified,
trained, or licensed as a service animal. Generally, a recipient may
not make these inquiries about a service animal when it is readily
apparent that an animal is trained to do work or perform tasks for an
individual with a disability (e.g., the dog is observed guiding an
individual who is blind or has low vision, pulling a person's
wheelchair, or providing assistance with stability or balance to an
individual with an observable mobility disability).
(g) Access to areas of the recipient. Individuals with disabilities
shall be permitted to be accompanied by their service animals in all
areas of the recipient's facilities where members of the public,
participants in programs or activities, or invitees, as relevant, are
allowed to go.
(h) Surcharges. A recipient shall not ask or require an individual
with a disability to pay a surcharge, even if people accompanied by
pets are required to pay fees, or to comply with other requirements
generally not applicable to people without pets. If a recipient
normally charges individuals for the damage they cause, an individual
with a disability may be charged for damage caused by their service
animal.
(i) Miniature horses--(1) Reasonable modifications. A recipient
shall make reasonable modifications in policies, practices, or
procedures to permit the use of a miniature horse by an individual with
a disability if the miniature horse has been individually trained to do
work or perform tasks for the benefit of the individual with a
disability.
(2) Assessment factors. In determining whether reasonable
modifications in policies, practices, or procedures can be made to
allow a miniature horse into a specific facility, a recipient shall
consider--
(i) The type, size, and weight of the miniature horse and whether
the facility can accommodate these features;
(ii) Whether the handler has sufficient control of the miniature
horse;
(iii) Whether the miniature horse is housebroken; and
(iv) Whether the miniature horse's presence in a specific facility
compromises legitimate safety requirements that are necessary for safe
operation.
(3) Other requirements. Paragraphs (c) through (h) of this section,
which apply to service animals, shall also apply to miniature horses.
Sec. 84.74 Mobility devices.
(a) Use of wheelchairs and manually-powered mobility aids. A
recipient shall permit individuals with mobility disabilities to use
wheelchairs and manually-powered mobility aids, such as walkers,
crutches, canes, braces, or other similar devices designed for use by
individuals with mobility disabilities in any areas open to pedestrian
use.
(b) Use of other power-driven mobility devices--(1) Requirement. A
recipient shall make reasonable modifications in its policies,
practices, or procedures to permit the use of other power-driven
mobility devices by individuals with mobility disabilities, unless a
recipient can demonstrate that the class of other power-driven mobility
devices cannot be operated in accordance with legitimate safety
requirements that a recipient has adopted pursuant to Sec. 84.68(h).
(2) Assessment factors. In determining whether a particular other
power-driven mobility device can be allowed in a specific facility as a
reasonable modification under paragraph (b)(1) of this section, a
recipient shall consider--
(i) The type, size, weight, dimensions, and speed of the device;
(ii) The facility's volume of pedestrian traffic (which may vary at
different times of the day, week, month, or year);
(iii) The facility's design and operational characteristics, e.g.,
whether its program or activity is conducted indoors, its square
footage, the density and placement of stationary devices, and the
availability of storage for the device, if requested by the user.
(iv) Whether legitimate safety requirements can be established to
permit the safe operation of the other power-driven mobility device in
the specific facility;
(v) Whether the use of the other power-driven mobility device
creates a substantial risk of serious harm to the immediate environment
or natural or cultural resources, or poses a conflict with Federal land
management laws and regulations; and
(c) Inquiry about disability--(1) Requirement. A recipient shall
not ask an individual using a wheelchair or other power-driven mobility
device questions about the nature and extent of the individual's
disability.
(2) Inquiry into use of other power-driven mobility device. A
recipient may ask a person using an other power-driven mobility device
to provide a credible assurance that the mobility device is required
because of the person's disability. A recipient in permitting the use
of an other power-driven mobility device by an individual with a
mobility disability shall accept the presentation of a valid, State-
issued, disability parking placard or card, or other State-issued proof
of disability as a credible assurance that the use of the other power-
driven mobility device is for the individual's mobility disability. In
lieu of a valid, State-issued disability parking placard or card, or
State-issued proof of disability, a recipient shall accept as a
credible assurance a verbal representation, not contradicted by
observable fact, that the other power-driven mobility device is being
used for a mobility disability. A ``valid'' disability placard or card
is one that is presented by the individual to whom it was issued and is
otherwise in compliance with the state of issuance's requirements for
disability placards or cards.
Sec. 84.75 Direct threat.
(a) This part does not require a recipient to permit an individual
to participate in or benefit from the programs or activities of that
recipient when that individual poses a direct threat.
(b) Except as provided in paragraph (c) of this section, in
determining whether an individual poses a direct threat, a recipient
must make an individualized assessment, based on reasonable judgment
that relies on current medical knowledge or on the best available
objective evidence, to ascertain: the nature, duration, and severity of
the risk; the probability that the potential injury will actually
occur; and whether reasonable modifications of policies, practices, or
procedures or the provision of auxiliary aids or services will mitigate
the risk.
(c) In determining whether an individual poses a direct threat in
employment, the recipient must make an individualized assessment
according to the Equal Employment Opportunity Commission's regulation
implementing title I of the Americans with Disabilities Act of 1990, at
29 CFR 1630.2(r).
Sec. 84.76 Integration.
(a) Application. This provision applies to programs or activities
that receive Federal financial assistance from
[[Page 63508]]
the Department and to recipients that operate such programs or
activities.
(b) Discriminatory action prohibited. A recipient shall 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 constitutes discrimination under this
section.
(c) Segregated setting. A segregated setting is one in which people
with disabilities are unnecessarily separated from people without
disabilities. Segregated settings are populated exclusively or
primarily with individuals with disabilities, and may be characterized
by regimentation in daily activities; lack of privacy or autonomy; and
policies limiting visitors or limiting individuals' ability to engage
freely in community activities and to manage their own activities of
daily living.
(d) Specific prohibitions. The general prohibition in paragraph (b)
of this section includes but is not limited to the following specific
prohibitions, to the extent that such action results in unnecessary
segregation, or serious risk of such segregation, of persons with
disabilities.
(1) Establishing or applying policies or practices that limit or
condition individuals with disabilities' access to the most integrated
setting appropriate to their needs;
(2) Providing greater benefits or benefits under more favorable
terms in segregated settings than in integrated settings;
(3) Establishing or applying more restrictive rules and
requirements for individuals with disabilities in integrated settings
than for individuals with disabilities in segregated settings; or
(4) Failure to provide community-based services that results in
institutionalization or serious risk of institutionalization. This
category includes, but is not limited to planning, service system
design, funding, or service implementation practices that result in
institutionalization or serious risk of institutionalization.
Individuals with disabilities need not wait until the harm of
institutionalization or segregation occurs to assert their right to
avoid unnecessary segregation.
(e) Fundamental alteration. A recipient may establish a defense to
the application of this section if it can demonstrate that a requested
modification would fundamentally alter the nature of its program or
activity.
0
35. Add subpart H to read as follows:
Subpart H--Communications
Sec.
84.77 General.
84.78 Telecommunications.
84.79 Telephone emergency services.
84.80 Information and signage.
84.81 Duties.
Subpart H--Communications
Sec. 84.77 General.
(a)(1) A recipient shall take appropriate steps to ensure that
communications with applicants, participants, members of the public,
and companions with disabilities are as effective as communications
with others.
(2) For purposes of this section, ``companion'' means a family
member, friend, or associate of an individual seeking access to a
program or activity of a recipient, who, along with such individual, is
an appropriate person with whom the recipient should communicate.
(b)(1) The recipient shall furnish appropriate auxiliary aids and
services where necessary to afford qualified individuals with
disabilities, including applicants, participants, beneficiaries,
companions, and members of the public, an equal opportunity to
participate in, and enjoy the benefits of, a program or activity of a
recipient.
(2) The type of auxiliary aid or service necessary to ensure
effective communication will vary in accordance with the method of
communication used by the individual; the nature, length, and
complexity of the communication involved; and the context in which the
communication is taking place. In determining what types of auxiliary
aids and services are necessary, a recipient shall give primary
consideration to the requests of individuals with disabilities. In
order to be effective, auxiliary aids and services must be provided in
accessible formats, in a timely manner, and in such a way as to protect
the privacy and independence of the individual with a disability.
(c)(1) A recipient shall not require an individual with a
disability to bring another individual to interpret for him or her.
(2) A recipient shall not rely on an adult accompanying an
individual with a disability to interpret or facilitate communication
except--
(i) In an emergency involving an imminent threat to the safety or
welfare of an individual or the public where there is no interpreter
available; or
(ii) When the individual with a disability specifically requests
that the accompanying adult interpret or facilitate communication, the
accompanying adult agrees to provide such assistance, and reliance on
that adult for such assistance is appropriate under the circumstances.
(3) A recipient shall not rely on a minor child to interpret or
facilitate communication, except in an emergency involving an imminent
threat to the safety or welfare of an individual or the public when
there is no interpreter available.
(d). When the recipient chooses to provide qualified interpreters
via video remote interpreting services (VRI), it shall ensure that it
provides--
(1) Real-time, full-motion video and audio over a dedicated high-
speed, wide-bandwidth video connection or wireless connection that
delivers high-quality video images that do not produce lags, choppy,
blurry, or grainy images, or irregular pauses in communication;
(2) A sharply delineated image that is large enough to display the
interpreter's face, arms, hands, and fingers, and the participating
individual's face, arms, hands, and fingers, regardless of their body
position;
(3) A clear, audible transmission of voices; and
(4) Adequate training to users of the technology and other involved
individuals so that they may quickly and efficiently set up and operate
the VRI.
Sec. 84.78 Telecommunications.
(a) Where a recipient communicates by telephone with applicants and
beneficiaries, text telephones (TTYs) or equally effective
telecommunications systems shall be used to communicate with
individuals who are deaf or hard of hearing or have speech impairments.
(b) When a recipient uses an automated-attendant system, including,
but not limited to, voice mail and messaging, or an interactive voice
response system, for receiving and directing incoming telephone calls,
that system must provide effective real-time communication with
individuals using auxiliary aids and services, including TTYs and all
forms of FCC-approved telecommunications relay systems, including
internet-based relay systems.
(c) A recipient shall respond to telephone calls from a
telecommunications relay service established under title IV of the ADA
in the same manner that it responds to other telephone calls.
Sec. 84.79 Telephone emergency services.
Telephone emergency services, including 911 services, shall provide
[[Page 63509]]
direct access to individuals who use TTY's and computer modems.
Sec. 84.80 Information and signage.
(a) A recipient shall ensure that interested persons, including
persons with impaired vision or hearing can obtain information as to
the existence and location of accessible services, activities, and
facilities.
(b) A recipient shall provide signage at all inaccessible entrances
to each of its facilities, directing users to an accessible entrance or
to a location at which they can obtain information about accessible
facilities. The international symbol for accessibility shall be used at
each accessible entrance of a facility.
Sec. 84.81 Duties.
This subpart does not require a recipient to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or undue financial and administrative
burdens. In those circumstances where a recipient's personnel believe
that the proposed action would fundamentally alter the program or
activity or would result in undue financial and administrative burdens,
the recipient has the burden of proving that compliance with this
subpart would result in such alteration or burdens. The decision that
compliance would result in such alteration or burdens must be made by
the head of the recipient or their designee after considering all the
recipient's resources available for use in the funding and operation of
the program or activity and must be accompanied by a written statement
of reasons for reaching that conclusion. If an action required to
comply with this part would result in such an alteration or such
burdens, the recipient shall take any other action that would not
result in such an alteration or such burdens but would nevertheless
ensure that, to the maximum extent possible, individuals with
disabilities receive the benefits or services provided by the
recipient.
0
36. Add subpart I to read as follows:
Subpart I--Web, Mobile, and Kiosk Accessibility
84.82 Application.
84.83 Accessibility of kiosks.
84.84 Requirements for web and mobile accessibility.
84.85 Exceptions.
84.86 Conforming alternate versions.
84.87 Equivalent facilitation.
84.88 Duties.
84.89 [Reserved]
Subpart I--Web, Mobile, and Kiosk Accessibility
Sec. 84.82 Application.
This subpart applies to all programs or activities that receive
Federal financial assistance from the Department.
Sec. 84.83 Accessibility of kiosks.
No qualified individual with a disability shall, on the basis of
disability, be excluded from participation in, be denied the benefits
of, or otherwise be subjected to discrimination under any program or
activity of a recipient provided through kiosks.
Sec. 84.84 Requirements for web and mobile accessibility.
(a) General. A recipient shall ensure that the following are
readily accessible to and usable by individuals with disabilities:
(1) Web content that a recipient makes available to members of the
public or uses to offer programs or activities to members of the
public; and
(2) Mobile apps that a recipient makes available to members of the
public or uses to offer programs or activities to members of the
public.
(b) Requirements. (1) Effective [DATE TWO YEARS AFTER PUBLICATION
OF FINAL RULE IN THE FEDERAL REGISTER], a recipient with fifteen or
more employees shall ensure that the web content and mobile apps it
makes available to members of the public or uses to offer programs or
activities to members of the public comply with Level A and Level AA
success criteria and conformance requirements specified in WCAG 2.1,
unless the recipient can demonstrate that compliance with this section
would result in a fundamental alteration in the nature of a program or
activity or undue financial and administrative burdens.
(2) Effective [DATE THREE YEARS AFTER PUBLICATION OF FINAL RULE IN
THE FEDERAL REGISTER], a recipient with fewer than fifteen employees
shall ensure that the web content and mobile apps it makes available to
members of the public or uses to offer programs or activities to
members of the public comply with Level A and Level AA success criteria
and conformance requirements specified in WCAG 2.1, unless the
recipient can demonstrate that compliance with this section would
result in a fundamental alteration in the nature of a program or
activity or undue financial and administrative burdens.
(3) WCAG 2.1 is incorporated by reference into this section with
the approval of the Director of the Federal Register under 5 U.S.C.
552(a) and 1 CFR part 51. All approved incorporation by reference (IBR)
material is available for inspection at HHS and at the National
Archives and Records Administration (NARA). Contact HHS, OCR at: Phone
line: (202) 545-4884; Email: [email protected]; Mail: Office for Civil
Rights, U.S. Department of Health and Human Services, 200 Independence
Ave. SW, Room 509F, HHH Building, Washington, DC 20201. For information
on the availability of this material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations.html or email
[email protected]. The material may be obtained from the World
Wide Web Consortium (W3C[supreg]) Web Accessibility Initiative
(``WAI''), 401 Edgewater Place, Suite 600, Wakefield, MA 01880; phone:
(339) 273-2711; email: [email protected]; website: www.w3.org/TR/2018/REC-WCAG21-20180605/ [https://perma.cc/UB8A-GG2F].
Sec. 84.85 Exceptions.
The requirements of Sec. 84.84 do not apply to the following:
(a) Archived web content. Archived web content as defined in Sec.
84.10.
(b) Preexisting conventional electronic documents. Conventional
electronic documents created by or for a recipient that are available
on a recipient's website or mobile app before the date the recipient is
required to comply with this rule, unless such documents are currently
used by members of the public to apply for, gain access to, or
participate in a recipient's programs or activities.
(c) Web content posted by a third party. Web content posted by a
third party that is available on a recipient's website.
(d) Linked third-party web content. Third-party web content linked
from the recipient's website, unless the recipient uses the third-party
web content to allow members of the public to participate in or benefit
from the recipient's programs or activities.
(e) Postsecondary institutions: password-protected class or course
content. Except as provided in paragraphs (e)(1) and (2) of this
section, course content available on a recipient's password-protected
or otherwise secured website for admitted students enrolled in a
specific course offered by a postsecondary institution.
(1) This exception does not apply if a recipient is on notice that
an admitted student with a disability is pre-registered in a specific
course offered by a postsecondary institution and that the student,
because of a disability, would
[[Page 63510]]
be unable to access the content available on the recipient's password-
protected or otherwise secured website for the specific course. In such
circumstances, all content available on the recipient's password-
protected or otherwise secured website for the specific course must
comply with the requirements of Sec. 84.84 by the date the academic
term begins for that course offering. New content added throughout the
term for the course must also comply with the requirements of Sec.
84.84 at the time it is added to the website.
(2) This exception does not apply once a recipient is on notice
that an admitted student with a disability is enrolled in a specific
course offered by a postsecondary institution after the start of the
academic term and that the student, because of a disability, would be
unable to access the content available on the recipient's password-
protected or otherwise secured website for the specific course. In such
circumstances, all content available on the recipient's password-
protected or otherwise secured website for the specific course must
comply with the requirements of Sec. 84.84 within five business days
of such notice. New content added throughout the term for the course
must also comply with the requirements of Sec. 84.84 at the time it is
added to the website.
(f) Elementary and secondary schools: password-protected class or
course content. Except as provided in paragraphs (f)(1) through (4) of
this section, class or course content available on a recipient's
password-protected or otherwise secured website for students enrolled,
or parents of students enrolled, in a specific class or course at an
elementary or secondary school.
(1) This exception does not apply if the recipient is on notice of
the following: a student with a disability is pre-registered in a
specific class or course offered by an elementary or secondary school
and that the student, because of a disability, would be unable to
access the content available on the recipient's password-protected or
otherwise secured website for the specific class or course. In such
circumstances, all content available on the recipient's password-
protected or otherwise secured website for the specific class or course
must comply with the requirements of Sec. 84.84 by the date the term
begins for that class or course. New content added throughout the term
for the class or course must also comply with the requirements of Sec.
84.84 at the time it is added to the website.
(2) This exception does not apply if the recipient is on notice of
the following: a student is pre-registered in an elementary or
secondary school's class or course, the student's parent has a
disability, and the parent, because of a disability, would be unable to
access the content available on the password-protected or otherwise
secured website for the specific class or course. In such
circumstances, all content available on the recipient's password-
protected or otherwise secured website for the specific class or course
must comply with the requirements of Sec. 84.84 by the date the term
begins for that class or course. New content added throughout the term
for the class or course must also comply with the requirements of Sec.
84.84 at the time it is added to the website.
(3) This exception does not apply once a recipient is on notice of
the following: a student with a disability is enrolled in an elementary
or secondary school's class or course after the term begins and that
the student, because of a disability, would be unable to access the
content available on the recipient's password-protected or otherwise
secured website for the specific class or course. In such
circumstances, all content available on the recipient's password-
protected or otherwise secured website for the specific class or course
must comply with the requirements of Sec. 84.84 within five business
days of such notice. New content added throughout the term for the
class or course must also comply with the requirements of Sec. 84.84
at the time it is added to the website.
(4) This exception also does not apply once a recipient is on
notice of the following: a student is enrolled in an elementary or
secondary school's class or course after the term begins, and the
student's parent has a disability, and the parent, because of a
disability, would be unable to access the content available on the
recipient's password-protected or otherwise secured website for the
specific class or course. In such circumstances, all content available
on the recipient's password-protected or otherwise secured website for
the specific class or course must comply with the requirements of Sec.
84.84 within five business days of such notice. New content added
throughout the term for the class or course must also comply with the
requirements of Sec. 84.84 at the time it is added to the website.
(g) Individualized, password-protected documents. Conventional
electronic documents that are:
(1) About a specific individual, their property, or their account;
and
(2) Password-protected or otherwise secured.
Sec. 84.86 Conforming alternate versions.
(a) A recipient may use conforming alternate versions of websites
and web content, as defined by WCAG 2.1, to comply with Sec. 84.84
only where it is not possible to make websites and web content directly
accessible due to technical or legal limitations.
(b) WCAG 2.1 is incorporated by reference into this section with
the approval of the Director of the Federal Register under 5 U.S.C.
552(a) and 1 CFR part 51. All approved incorporation by reference (IBR)
material is available for inspection at HHS and at the National
Archives and Records Administration (NARA). Contact HHS, OCR at: Phone
line: (202) 545-4884; Email: [email protected]; Mail: Office for Civil
Rights, U.S. Department of Health and Human Services, 200 Independence
Ave. SW, Room 509F, HHH Building, Washington, DC 20201. For information
on the availability of this material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations.html or email
[email protected]. The material may be obtained from the World
Wide Web Consortium (W3C[supreg]) Web Accessibility Initiative
(``WAI''), 401 Edgewater Place, Suite 600, Wakefield, MA 01880; phone:
(339) 273-2711; email: [email protected]; website: www.w3.org/WAI/;
www.w3.org/TR/2018/REC-WCAG21-20180605/ [https://perma.cc/UB8A-GG2F].
Sec. 84.87 Equivalent facilitation.
Nothing in this subpart prevents the use of designs, methods, or
techniques as alternatives to those prescribed, provided that the
alternative designs, methods, or techniques result in substantially
equivalent or greater accessibility and usability of the web content or
mobile app.
Sec. 84.88 Duties.
Where a recipient can demonstrate that full compliance with the
requirements of Sec. 84.84 would result in a fundamental alteration in
the nature of a program or activity or undue financial and
administrative burdens, compliance with Sec. 84.84 is required to the
extent that it does not result in a fundamental alteration or undue
financial and administrative burdens. In those circumstances where
personnel of the recipient believe that the proposed action would
fundamentally alter the program or activity or would result in undue
financial and administrative burdens, a recipient has the burden of
proving that compliance with Sec. 84.84 would result in such
alteration or burdens. The decision that compliance would result in
such alteration or burdens must be made by the head of
[[Page 63511]]
a recipient or their designee after considering all resources available
for use in the funding and operation of the program or activity, and
must be accompanied by a written statement of the reasons for reaching
that conclusion. If an action would result in such an alteration or
such burdens, a recipient shall take any other action that would not
result in such an alteration or such burdens but would nevertheless
ensure that individuals with disabilities receive the benefits or
services provided by the recipient to the maximum extent possible.
Sec. 84.89 [Reserved]
0
37. Add subpart J to read as follows:
Subpart J--Accessible Medical Equipment
Sec.
84.90 Application.
84.91 Requirements for medical diagnostic equipment.
84.92 Newly purchased, leased, or otherwise acquired medical
diagnostic equipment.
84.93 Existing medical diagnostic equipment.
84.94 Qualified staff.
84.95-84.97 [Reserved]
Subpart J--Accessible Medical Equipment
Sec. 84.90 Application.
This subpart applies to programs or activities that receive Federal
financial assistance from the Department and to recipients that
operate, or that receive Federal financial assistance for the operation
of, such programs or activities.
Sec. 84.91 Requirements for medical diagnostic equipment.
No qualified individual with a disability shall, on the basis of
disability, be excluded from participation in, be denied the benefits
of the programs or activities of a recipient offered through or with
the use of medical diagnostic equipment (MDE), or otherwise be
subjected to discrimination under any program or activity that receives
Federal financial assistance because the recipient's MDE is not readily
accessible to or usable by persons with disabilities.
Sec. 84.92 Newly purchased, leased, or otherwise acquired medical
diagnostic equipment.
(a) Requirements for all newly purchased, leased, or otherwise
acquired medical diagnostic equipment. All MDE that recipients
purchase, lease, or otherwise acquire more than 60 days after the
publication of this part in final form shall, subject to the
requirements and limitations set forth in this section, meet the
Standards for Accessible MDE, unless and until the recipient satisfies
the scoping requirements set forth in paragraph (b) of this section.
(b) Scoping requirements--(1) General requirement for medical
diagnostic equipment. Where a program or activity of a recipient,
including physicians' offices, clinics, emergency rooms, hospitals,
outpatient facilities, and multi-use facilities, utilizes MDE, at least
10 percent of the total number of units, but no fewer than one unit, of
each type of equipment in use must meet the Standards for Accessible
MDE.
(2) Facilities that specialize in treating conditions that affect
mobility. In rehabilitation facilities that specialize in treating
conditions that affect mobility, outpatient physical therapy
facilities, and other programs or activities that specialize in
treating conditions that affect mobility, at least 20 percent, but no
fewer than one unit, of each type of equipment in use must meet the
Standards for Accessible MDE.
(3) Facilities with multiple departments. In any facility or
program with multiple departments, clinics, or specialties, where a
program or activity uses MDE, the facility shall disperse the
accessible MDE required by paragraphs (b)(1) and (2) of this section in
a manner that is proportionate by department, clinic, or specialty
using MDE.
(c) Requirements for examination tables and weight scales. Within 2
years after [EFFECTIVE DATE OF FINAL RULE, recipients shall, subject to
the requirements and limitations set forth in this section, purchase,
lease, or otherwise acquire the following, unless the recipient already
has them in place:
(1) At least one examination table that meets the Standards for
Accessible MDE, if the recipient uses at least one examination table;
and
(2) At least one weight scale that meets the Standards for
Accessible MDE, if the recipient uses at least one weight scale.
(d) Equivalent facilitation. Nothing in these requirements prevents
the use of designs, products, or technologies as alternatives to those
prescribed by the Standards for Accessible MDE, provided they result in
substantially equivalent or greater accessibility and usability of the
program or activity. The responsibility for demonstrating equivalent
facilitation rests with the recipient.
(e) Fundamental alteration and undue burdens. This section does not
require a recipient to take any action that it can demonstrate would
result in a fundamental alteration in the nature of a program or
activity, or in undue financial and administrative burdens. In those
circumstances where personnel of the recipient believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, a recipient
has the burden of proving that compliance with paragraph (a) or (c) of
this section would result in such alteration or burdens. The decision
that compliance would result in such alteration or burdens must be made
by the head of a recipient or their designee after considering all
resources available for use in the funding and operation of the program
or activity and must be accompanied by a written statement of the
reasons for reaching that conclusion. If an action would result in such
an alteration or such burdens, a recipient shall take any other action
that would not result in such an alteration or such burdens but would
nevertheless ensure that individuals with disabilities receive the
benefits or services provided by the recipient.
(f) Diagnostically required structural or operational
characteristics. A recipient meets its burden of proving that
compliance with paragraph (a) or (c) of this section would result in a
fundamental alteration under paragraph (e) of this section if it
demonstrates that compliance with paragraph (a) or (c) would alter
diagnostically required structural or operational characteristics of
the equipment, and prevent the use of the equipment for its intended
diagnostic purpose. This paragraph does not excuse compliance with
other technical requirements where compliance with those requirements
does not prevent the use of the equipment for its diagnostic purpose.
Sec. 84.93 Existing medical diagnostic equipment.
(a) Accessibility. A recipient shall operate each program or
activity offered through or with the use of MDE so that the program or
activity, in its entirety, is readily accessible to and usable by
individuals with disabilities. This paragraph does not--
(1) Necessarily require a recipient to make each of its existing
pieces of medical diagnostic equipment accessible to and usable by
individuals with disabilities; or
(2) Require a recipient to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity, or in undue financial and administrative burdens. In those
circumstances where personnel of the recipient believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, a recipient
has the burden of proving that
[[Page 63512]]
compliance with this paragraph (a) would result in such alteration or
burdens. The decision that compliance would result in such alteration
or burdens must be made by the head of the recipient or their designee
after considering all resources available for use in the funding and
operation of the program or activity and must be accompanied by a
written statement of the reasons for reaching that conclusion. If an
action would result in such an alteration or such burdens, the
recipient shall take any other action that would not result in such an
alteration or such burdens but would nevertheless ensure that
individuals with disabilities receive the benefits or services provided
by the recipient.
(3) A recipient meets its burden of proving that compliance with
Sec. 84.92(a) or (c) would result in a fundamental alteration under
paragraph (a)(2) of this section if it demonstrates that compliance
with Sec. 84.92(a) or (c) would alter diagnostically required
structural or operational characteristics of the equipment, and prevent
the use of the equipment for its intended diagnostic purpose.
(b) Methods. A recipient may comply with the requirements of this
section through such means as reassignment of services to alternate
accessible locations, home visits, delivery of services at alternate
accessible sites, purchase, lease, or other acquisition of accessible
MDE, or any other methods that result in making its programs or
activities readily accessible to and usable by individuals with
disabilities. A recipient is not required to purchase, lease, or
otherwise acquire accessible medical diagnostic equipment where other
methods are effective in achieving compliance with this section. In
choosing among available methods for meeting the requirements of this
section, a recipient shall give priority to those methods that offer
programs and activities to qualified individuals with disabilities in
the most integrated setting appropriate.
Sec. 84.94 Qualified staff.
Recipients must ensure their staff are able to successfully operate
accessible MDE, assist with transfers and positioning of individuals
with disabilities, and carry out the program access obligation
regarding existing MDE.
Sec. Sec. 84.95-84.97 [Reserved]
0
38. Add subpart K, consisting of Sec. 84.98, to read as follows:
Subpart K--Procedures
Sec. 84.98 Procedures.
The procedural provisions applicable to title VI of the Civil
Rights Act of 1964 apply to this part. These procedures are found in
Sec. Sec. 80.6 through 80.10 and 45 CFR part 81.
Dated: August 31, 2023.
Xavier Becerra,
Secretary, Department of Health and Human Services.
[FR Doc. 2023-19149 Filed 9-7-23; 8:45 am]
BILLING CODE P