[Federal Register Volume 89, Number 91 (Thursday, May 9, 2024)]
[Rules and Regulations]
[Pages 40066-40195]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-09237]
[[Page 40065]]
Vol. 89
Thursday,
No. 91
May 9, 2024
Part IV
Department of Health and Human Services
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45 CFR Part 84
Nondiscrimination on the Basis of Disability in Programs or Activities
Receiving Federal Financial Assistance; Final Rule
Federal Register / Vol. 89 , No. 91 / Thursday, May 9, 2024 / Rules
and Regulations
[[Page 40066]]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
45 CFR Part 84
RIN 0945-AA15
Nondiscrimination on the Basis of Disability in Programs or
Activities Receiving Federal Financial Assistance
AGENCY: U.S. Department of Health and Human Services.
ACTION: Final 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 is making a number of revisions to
update and amend its section 504 regulation.
DATES:
Effective date: This rule is effective July 8, 2024.
Incorporation by reference: The incorporation by reference of
certain material listed in the rule is approved by the Director of the
Federal Register as of July 8, 2024.
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
II. Overview of the Final Rule
III. Response to Public Comments on the Proposed Rule
IV. Executive Order 12866 and Related Executive Orders on Regulatory
Review
I. Background
Section 504 of the Rehabilitation Act of 1973 prohibits
discrimination on the basis of disability in programs and activities
that receive Federal financial assistance as well as in programs and
activities conducted by any Federal agency.\1\
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\1\ 29 U.S.C. 794.
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The Office for Civil Rights (OCR) in HHS enforces section 504 as
well as 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.\2\ OCR also enforces section 1557
(section 1557) of the Patient Protection and Affordable Care Act (ACA)
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 contracts 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.\3\
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\2\ 42 U.S.C. 12132.
\3\ 42 U.S.C. 18116.
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Congress passed the Rehabilitation Act in 1973, and what was then
the U.S. Department of Health, Education, and Welfare issued
regulations to implement section 504 in 1977. Those regulations have
rarely been amended.\4\ In the more than 40 years since enactment of
the regulations, 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), passage of the ACA, and Supreme Court
and other significant court cases. In addition, the Department is aware
of specific manifestations of disability-based discrimination in recent
years, for example, in the area of accessibility of information and
communications technology.
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\4\ 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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Section 504 must 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
clarity for recipients and beneficiaries and to promote compliance, the
Department is amending its existing section 504 regulation on
nondiscrimination obligations for recipients of Federal financial
assistance (part 84).\5\
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\5\ 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.
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II. Overview of the Final Rule
On September 14, 2023, the Department published a proposed rule to
amend 45 CFR part 84, Discrimination on the Basis of Disability in
Programs or Activities Receiving Federal Financial Assistance (88 FR
63392). The 60-day comment period ended on November 13, 2023. The final
rule adopts the same structure and subparts as the proposed rule. We
have made some changes to the proposed rule's provisions based on
comments received. As discussed in the notice of proposed rulemaking
(NPRM), to fulfill Congress's intent that title II of the ADA and
section 504 be interpreted consistently, the rule contains provisions
that mirror the corresponding provisions in the title II ADA
regulation.
No substantive difference is intended, aside from denoting the
singular or plural, when using the terms ``individual with a
disability,'' ``people with disabilities,'' and ``person with a
disability'' throughout this rule.
The Department is retaining several sections from the existing
section 504 rule. Many of those retained sections contain terminology
revisions. The current rule can be found at: https://www.ecfr.gov/current/title-45/subtitle-A/subchapter-A/part-84.
III. Response to Public Comments on the Proposed Rule
This section focuses on the provisions of the rule that are
relevant to comments received, and the explanations necessary to
address those comments. For a fuller explanation of the background and
intended meaning of regulatory language in the final rule that remain
unchanged from the NPRM, please refer to the discussion in the NPRM.
Subpart A--General Provisions
Subpart A sets forth the general provisions that apply to all
recipients. Four of the sections from the existing regulation are
retained without any changes, Sec. Sec. 84.5 through 84.7 and 84.9.
The remainder of the sections in this subpart are identical or similar
to the ADA title II regulations.
Purpose and Broad Coverage (Sec. 84.1)
Proposed Sec. 84.1(a) provided that the purpose of this regulation
is to implement section 504, which prohibits discrimination on the
basis of disability in any program or activity receiving Federal
financial assistance.
Proposed Sec. 84.1(b) stated that the definition of ``disability''
shall be construed broadly in favor of expansive coverage to the
maximum extent
[[Page 40067]]
permitted by section 504. The primary objective of attention in cases
should be whether recipients have complied with their obligations and
whether discrimination occurred, and not whether the individual meets
the definition of ``disability.'' The question of whether an individual
meets the definition of ``disability'' should not demand extensive
analysis.
The comments and our responses regarding Sec. 84.1 are set forth
below.
Comment: The Department received many comments applauding the
inclusion of this section. Commenters expressed appreciation for the
Department's commitment to construing the protection of the law broadly
in favor of expansive coverage.
Response: The Department appreciates the commenters' input.
Summary of Regulatory Changes
We are finalizing Sec. 84.1 as proposed with no modifications.
Application (Sec. 84.2)
Proposed Sec. 84.2(a) provided that this part applies to each
recipient of Federal financial assistance from the Department and to
the recipient's programs and activities that involve individuals with
disabilities in the United States. This part does not apply to the
recipient's programs and activities outside the United States that do
not involve individuals with disabilities in the United States.
Proposed Sec. 84.2(b) provided that 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.
Proposed Sec. 84.2(c) provided that 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 this provision to other
persons not similarly situated or to other dissimilar circumstances.
The comments and our responses regarding proposed Sec. 84.2 are
set forth below.
Comments: The Department received several comments asking for
clarification of the types of entities covered by section 504. Many
mentioned specific entities and asked whether they are covered. Others
requested that the Department provide a list of all covered entities.
Response: Most of these commenters were essentially asking for a
more detailed explanation of what constitutes ``Federal financial
assistance,'' the prerequisite to section 504 coverage, than what
appeared in the proposed rule's definition. The Department's
interpretation of Federal financial assistance and the types of
entities covered by this rule can be found in the discussion of Federal
financial assistance contained at Sec. 84.10, the definitions section
of the rule.
Summary of Regulatory Changes
For the reasons set forth above and considering comments received,
we are finalizing Sec. 84.2 as proposed with no modifications.
Relationship to Other Laws (Sec. 84.3)
Proposed Sec. 84.3 provided an explanation of the relationship of
the proposed regulation to existing laws. The section provided that
this part does not invalidate or limit remedies, rights, and procedures
of any other Federal law, State, or local law that provides greater or
equal protection for the rights of individuals with disabilities and
individuals associated with them.
The comments and our responses to Sec. 84.3 are set forth below.
Comments: The Department received many comments, including from
multiple disability rights organizations, concerning the relationship
of this regulation to other laws. Several commenters mentioned the
importance of ensuring that laws providing more protection such as the
ADA are not affected by this regulation. One commenter remarked that
the principle encompassed in this section is fundamental to maintaining
a comprehensive support system for individuals with disabilities as it
recognizes that laws are layered and work together. Another commenter
urged the Department to adopt this section to ensure that any new
Federal requirements offer a floor, but not a ceiling, for the
protection of disability rights. Many organizations representing
individuals with disabilities asked the Department to clarify how this
regulation interacts with section 1557.
Another commenter asked about the relationship of section 504 to
State laws and whether Federal law always supersedes State law.
Response: The Department appreciates commenters' support for this
provision. In developing this regulation, we have been closely
coordinating within the Department on the section 1557 rule, and we
will continue this close coordination on the impact of the 504 rule and
its relationship to other applicable laws, including section 1557, in
the future. We will consider developing guidance and technical
assistance as needed on these topics in the future.
As for whether Federal laws always supersede State laws, we note
that standard principles of preemption apply under section 504.
Summary of Regulatory Changes
For the above reasons and considering comments received, we are
finalizing Sec. 84.3 as proposed with no modifications.
Disability (Sec. 84.4)
Proposed Sec. 84.4 provided a detailed definition of disability
implementing the ADAAA, which amended section 504 to adopt the ADAAA
definition of disability. The proposed rule largely incorporated the
definition contained in the ADA title II regulation and was intended to
ensure consistency between the ADA and section 504. The only
differences between the definition of disability in Sec. 84.4 and the
definition of disability in the ADA title II regulation were updates in
terminology and the addition of long COVID, a condition that did not
exist when the ADA regulation was published, to the list of physical
and mental impairments.
Proposed Sec. 84.4(a)(1) stated that, with respect to an
individual, disability means a physical or mental impairment that
substantially limits one or more of the major life activities of such
individual; a record of such an impairment; or being regarded as having
such an impairment. Proposed Sec. 84.4(a)(2) stated that the
definition of disability shall be construed broadly in favor of
expansive coverage to the maximum extent permitted by the terms of
section 504.
Proposed Sec. 84.4 provided detailed definitions of the terms used
in Sec. 84.4(a)(1). It defined physical or mental impairment (Sec.
84.4(b)), major life activities (Sec. 84.4(c)), substantially limits
(Sec. 84.4(d)), has a record of such an impairment (Sec. 84.4(e)), is
regarded as having such an impairment (Sec. 84.4(f)), and it included
a list of conditions excluded from the definition (Sec. 84.4(g)). At
Sec. 84.4(d)(2), it provided a list of predictable assessments,
circumstances where the inherent natures of the specific impairments
will, as a factual matter, virtually always be found to impose a
substantial limitation on a major life activity, and for which the
necessary individualized assessment should be particularly simple and
straightforward (e.g., deafness substantially limits hearing).
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At proposed Sec. 84.4(b)(2), the rule included long COVID as a
physical or mental impairment. This inclusion follows guidance issued
on July 26, 2021, from the Department of Justice (DOJ) and HHS on how
long COVID can be a disability under the ADA, section 504, and section
1557.\6\
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\6\ 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.
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When the Department proposed section 84.4(g), it addressed
exclusions from section 504 coverage by taking language directly from
the text of the Rehabilitation Act.\7\ Section 84.4(g) now states that
the term ``disability'' does not include the terms set forth at 29
U.S.C. 705(20)(F). That statutory text excludes gender identity
disorders not resulting from physical impairments from the definition
of disability. The Department noted in the preamble of the proposed
rule that an individual with gender dysphoria may have a disability
under section 504 and 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.
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\7\ 29 U.S.C. 705(20)(F).
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The comments and our responses to Sec. 84.4 are set forth below.
Comments: Commenters expressed strong support for the Department's
revised definition of disability, for complying with the ADAAA, and for
ensuring consistency with the Department of Justice's ADA regulatory
definition of disability. Commenters also expressed approval for the
specific inclusion of long COVID as a physical or mental impairment.
Response: Accordingly, the Department has retained the approach and
language of its proposed rule in this final rule and has retained the
inclusion of long COVID as a physical or mental impairment.
Physical and Mental Impairments (Sec. 84.4(b))
Comments: Although expressing support for the Department's
expansion of its definition of disability, a number of commenters
suggested adding specific conditions to the text of Sec. 84.4(b).
These commenters suggested specifically including in the regulatory
text a number of conditions as impairments, including, for example:
obesity, hepatitis B, hepatitis C, endometriosis, developmental
disabilities, intersex variations, and chemical and electromagnetic
hypersensitivities (including allergies to fragrances). One commenter
noted that ``autism'' was not included in the list of impairments, but
that Autism Spectrum Disorder was included in Sec. 84.4(d)(2)(iii)(E).
The comments included descriptions of the discrimination faced by
persons with these conditions and how inclusion in the Department's
section 504 regulation would provide a vehicle for their active
participation in programs and activities funded by the Department.
Response: The Department notes that the list of disorders and
conditions in Sec. 84.4(b) is non-exhaustive and illustrative. The
preamble to the DOJ's title II ADA regulation explains why there was no
attempt to set forth a comprehensive list of physical and mental
impairments. That preamble states ``[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.'' \8\ The Department
shares this view. Failure to include any specific disorder or condition
does not mean that that condition is not a physical or mental
impairment under section 504 or the rule. No negative implications
should be drawn from the omission of any specific impairment in the
list of impairments in Sec. 84.4(b). In fact, the Department notes
that its rule of construction for the definition of disability is 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.
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\8\ 28 CFR part 35, appendix B.
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As a result, the Department has decided not to add any further
specific disorders or conditions to the regulatory text of Sec.
84.4(b). This approach has the added benefit of ensuring a consistent
interpretation of this important statutory term that is shared by both
section 504 and both titles II and III of the ADA and avoids any
confusion that might result from having related Federal disability
rights regulations with different language for the same term.
The Department wishes to make clear, however, that the conditions
proffered by commenters may constitute a physical or mental impairment
as that term is used in section 504. For example, obesity, without any
accompanying comorbidities, may be included in the phrase ``any
physiological disorder or condition'' and thus constitute a physical
impairment for higher-weight individuals. Similarly, intersex
variations may result from physical conditions that are structured or
function differently from most of the population and affect the
endocrine, reproductive, and/or genitourinary systems of an individual,
or may be evidenced by anatomical loss affecting one or more of the
body's systems, and thus be included within the phrase ``any
physiological disorder or condition.'' The Department received comments
asking that we add other, specific conditions to the list of physical
and mental impairments. While many conditions may constitute a physical
or mental impairment as that term is used in section 504, it is not
necessary for the Department to add these conditions to the rule as the
Department's list is not an exhaustive list.
Of course, being included as a physical or mental impairment does
not mean that a particular individual has a disability covered by
section 504. To be covered by section 504 and Department's final rule,
the impairment must then substantially limit one or more of the
person's major life activities. In addition, section 504 coverage could
be established for a particular individual if that person has a record
of the impairment that substantially limited one of more of their major
life activities; or if they were 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.
Gender Dysphoria
Comments: The preamble of the Department's NPRM included in its
analysis of Sec. 84.4(g), Exclusions, a discussion of section 504's
exclusion of gender identity disorders not resulting from physical
impairments, and a recent Fourth Circuit case, Williams v. Kincaid,\9\
concluding that gender dysphoria can be a disability under section 504
and the ADA. In the NPRM, the Department agreed with the Fourth
Circuit's recent holding that gender dysphoria may constitute a
disability under section 504 and that restrictions that prevent, limit,
or interfere with otherwise qualified individuals' access to care due
to their gender dysphoria, gender dysphoria diagnosis, or
[[Page 40069]]
perception of gender dysphoria may violate section 504.
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\9\ Williams v. Kincaid, 45 F.4th 759 (4th Cir. 2022, cert.
denied, 600 U.S. __ (June 30, 2023) (No. 22-633).
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The inclusion of this discussion in the preamble elicited a robust
discussion from commenters. Comments from civil rights and patient
advocacy organizations representing persons with disabilities supported
the concept of coverage of gender dysphoria in the section 504 rule but
sought changes that would strengthen the Department's inclusion of
gender dysphoria by including specific regulatory text (e.g., by making
clear that gender dysphoria is not included within the scope of gender
identity disorders) and by expanding and clarifying protections.
Commenters representing certain religious organizations and some
State officials, among others, objected to the Department's conclusion
that gender dysphoria can be a disability covered under section 504.
The comments asserted that the Kincaid decision is only one court
decision, that the dissent in the case was more compelling, and that
the Department has ignored contrary court decisions.\10\ These
commenters stated that the Department's view could adversely impact
them because section 504 does not have an exemption for religious
entities. In the alternative, the commenters sought significantly more
detail regarding what actions will be prohibited or required by
inclusion of the language.
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\10\ See, e.g., Duncan v. Jack Henry & Assocs., Inc., 617 F.
Supp. 3d 1011, 1055-57 (W.D. Mo. 2022); Lange v. Houston Cnty., 608
F. Supp. 3d 1340, 1362 (M.D. Ga. 2022); Doe v. Northrop Grumman Sys.
Corp., 418 F. Supp. 3d 921 (N.D. Ala. 2019); Parker v. Strawser
Constr. Inc., 307 F. Supp. 3d 744, 754-55 (S.D. Ohio 2018); Gulley-
Fernandez v. Wis. Dep't of Corr., 2015 WL 7777997, at *3 (E.D. Wis.
Dec. 1, 2015); but see Doe v. Mass. Dep't of Corr., 2018 WL 2994403
(D. Mass. Jun. 14, 2018); Blatt v. Cabela's Retail, Inc., 2017 WL
2178123 (E.D. Pa. May 18, 2017); Guthrie v. Noel, 2023 WL 8115928,
at *13 (M.D. Pa. Sept. 11, 2023).
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Response: As noted above, the Department's section 504 NPRM
preamble noted that gender dysphoria may constitute a disability under
section 504 and 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.
In the Williams case, the only Federal appellate court to consider
the issue of coverage for gender dysphoria under section 504 and the
ADA concluded that the language excluding gender identity disorders
from coverage did not encompass gender dysphoria. 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.'' \11\ 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. The
court reasoned that gender dysphoria is not included in the scope of
the exclusion for ``gender identity disorders,'' but that even if
gender dysphoria were such a disorder, plaintiff's complaint ``amply
supports [the] inference'' that her gender dysphoria ``result[s] from a
physical impairment.'' \12\
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\11\ Id. at 780.
\12\ Id. at 773-74 (citing 42 U.S.C. 12211(b)); see also id. at
770-72.
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Recognizing ``Congress' express instruction that courts construe
the ADA in favor of maximum protection for those with disabilities,''
\13\ 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.'' \14\ The Department agrees with the
court's holding 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.\15\
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\13\ Id. at 769-70.
\14\ Id. at 773.
\15\ The Department's interpretation is also consistent with the
position taken by the Department of Justice's Civil Rights Division
on the proper interpretation of ``gender identity disorders'' under
the ADA and section 504. See Statement of Interest, Doe v. Ga. Dep't
of Corr., No. 23-5578 (N.D. Ga. Jan. 8, 2024), ECF No. 69.
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The Department will approach gender dysphoria as it would any other
disorder or condition. If a disorder or condition affects one or more
body systems, or is a mental or psychological disorder, it may be
considered a physical or mental impairment. The existing section 504
rule includes the following as body systems: ``neurological,
musculoskeletal, special sense organs, respiratory (including speech
organs), cardiovascular, reproductive, digestive, genitourinary,
immune, circulatory, hemic, lymphatic, skin, and endocrine.'' The issue
before the Department then is whether gender dysphoria is a condition
that can affect any bodily system or is a mental or psychological
condition. Such an inquiry is necessarily a fact-based, individualized
determination but the Department agrees with the Fourth Circuit that
gender dysphoria can satisfy this standard. A determination in an
individual situation that gender dysphoria is a physical or mental
impairment is, of course, not the end of the question. It must then be
determined whether the impairment substantially limits any major life
activity. Depending on that analysis, gender dysphoria may rise to the
level of a disability under section 504 and would provide protection
against discrimination in programs or activities funded by HHS that is
prohibited by section 504.
As to the lower court cases that held that gender dysphoria is
included within the definition of gender identity disorders, the
Department believes that the conclusion the Fourth Circuit reached in
the Williams case and the view expressed in the United States'
Statement of Interest in Doe v. Georgia Department of Corrections
reflect the more compelling reading of the statute. That interpretation
is that, when Congress enacted the ADA in 1990, ``gender identity
disorders'' referred to a person's mere identification with a different
gender than the sex they were assigned at birth, a condition that is
not a disability. Gender dysphoria, by contrast, may be a disability,
one that is characterized by clinically significant distress or
impairment in social, occupational, or other important areas of
functioning; thus gender dysphoria does not fall with the statutory
exclusions for gender identity disorders.\16\
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\16\ See also Am. Psychiatric Ass'n, Diagnostic and Statistical
Manual of Mental Disorders (5th ed. text rev. 2022), https://perma.cc/U4KQ-HA98.
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As to concerns about religious freedom and conscience, the section
504 rule does not contain provisions on those issues. However, the
Department does have other statutes and regulations that apply
protections in these areas. For example, in January 2024, the
Department finalized a rule clarifying the Department's enforcement of
the Federal health care conscience statutes, including that OCR
receives and handles complaints regarding these statutes.\17\ The
Department will comply with all applicable law. We decline to make
changes to this rule.
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\17\ 89 FR 2078 (Jan. 11, 2024).
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Major Life Activities (Sec. 84.4(c))
Comments: In the Department's NPRM, proposed Sec. 84.4(c)
significantly expanded the range of major life
[[Page 40070]]
activities in the current rule in response to the ADAAA and DOJ's ADA
rules, specifically including major bodily functions and providing an
expanded non-exhaustive list of examples of major life activities. It
also indicated that ``major'' should be interpreted in a more expansive
fashion than previously. Commenters supported the Department's approach
to defining and interpreting the term ``major life activities,'' but
suggested that the Department should add to the list. One commenter
suggested that the major life activity of ``caring for oneself'' was
too narrow in scope and that should be expanded to address caring for
other family members, taking care of pets or service animals, and
caring for guests or visitors to the home, noting that caring for
others, no matter what the relationship, is a common major life
activity. Another commenter suggested including recognition of mental
health and cognitive abilities in this section.
Response: The Department appreciates these comments but has
determined it is not necessary to add these or any other new terms to
the list of major life activities in Sec. 84.4(c). This list is, by
its own terms, not exhaustive and thus other activities can certainly
be considered major life activities. The Department also wants to avoid
any confusion that may be caused by including terms in this regulatory
language that are different than those found in the parallel sections
defining disability under the ADA and titles II and III of the ADA
regulations of DOJ and under title I of the ADA and the regulations of
the Equal Employment Opportunity Commission (EEOC).
As for the coverage of mental health issues, the Department notes
the inclusion of learning, concentrating, and thinking as major life
activities in Sec. 84.4(c)(1)(i) and the operation of neurological
systems as a major bodily function in Sec. 84.4(c)(1)(ii). Further,
because mental health and cognitive capability are central to
functioning and well-being, impairment in either may significantly
impact major life activities such as working, sleeping, and caring for
oneself or others.
Predictable Assessments
Comments: Commenters noted that the list of examples in Sec.
84.4(d)(2)(iii), when referring to the Human Immunodeficiency Virus
(HIV) infection, did not include the phrase ``whether symptomatic or
asymptomatic'' even though that phrase was included in the list of
physical or mental impairments in Sec. 84.4(b)(2) and requested that
the phrase be added in the final rule.
Response: The Department agrees with the commenters that persons
who have HIV are substantially limited in their immune function,
whether or not they present with symptoms of the disease. Section
84.4(d)(2)(iii)(J) of this rule includes HIV, and the provision of
predictable assessments presumptively covers persons who have HIV,
whether or not they are symptomatic. The Department also recognizes the
need to have its regulatory provision here be consistent with the ADA's
parallel regulation on the definition of disability, which does not
include the phrase ``whether symptomatic or asymptomatic'' in the
provision on predictable assessments. As a result, the Department will
not add this phrase to the paragraph on predictable assessments to
avoid any confusion that may result from having Federal regulations
with different terminology on the same issue.
Outdated and Offensive Terminology
Comments: Commenters were uniformly supportive of changing the
terminology in the Department's existing section 504 rule from the use
of ``handicap'' and ``handicapped individual'' to ``disability'' and
``individual with a disability.'' One comment noted that this change
from ``handicap'' to ``disability'' was more than just terminology and
that it reflected issues overlaid with stereotypes, patronizing
attitudes, and other emotional connotations. Commenters were also
uniformly supportive of changing the terminology in the list of
physical and mental impairments in Sec. 84.4(b)(2), and throughout the
rule, from ``drug user'' to ``individual with a substance use
disorder'' and ``alcoholic'' to ``individual with an alcohol use
disorder.'' Some commenters, however, objected to use of the phrase
``emotional or mental illness'' because it carries significant stigma,
and suggested the use of more neutral terminology, such as ``person
with a mental health condition.'' Other commenters objected to the
terminology used in Sec. 84.4(g) on exclusions from coverage and
suggested that the section be removed in its entirety.
Response: The Department is aware that some of the terms used in
its regulation have come to be understood, in common parlance, as
having negative connotations or being pejorative.
The terms that the Department proposed in the regulatory provision
on exclusions, Sec. 84.4(g), are taken verbatim from the
Rehabilitation Act at 29 U.S.C. 705(20)(F). Those terms had specific
meanings when Congress added them to the statute decades ago and the
Department is bound by these statutory exclusions. However, the
Department appreciates that the terminology used in this section of the
statute is now considered offensive to many communities. As such, we
are revising the final section at Sec. 84.4(g) to cite to the relevant
statutory text. This is a non-substantive change; the Department is
still bound by the statutory exclusions cited at Sec. 84.4(g).
With regard to the use of the terms ``emotional or mental illness''
in Sec. 84.4(b)(1)(ii) and ``emotional illness'' in Sec. 84.4(b)(2),
the Department is substituting the neutral term ``mental health
condition.'' Both the terms ``emotional or mental illness'' and
``emotional illness'' are used in the definition of impairments
contained in the definition of ``disability'' in Sec. 84.4(b). These
terms are found in the ADA titles II and III regulations as well as in
the EEOC regulations for title I of the ADA. Because these terms are
regulatory, not statutory, the Department believes it appropriate in
these circumstances to change the language to address usage concerns.
The term ``mental health condition'' is neutral terminology that may
help to reduce the negative connotations for people experiencing mental
health conditions. The Department itself now uses the phrase ``mental
health condition'' instead of emotional or mental illness in other
contexts. The Department intends no difference in meaning with this new
term and it will be interpreted consistently with the terms ``emotional
or mental illness'' or ``emotional illness'' in the parallel ADA titles
II and III regulations.
Summary of Regulatory Changes
For the reasons set forth above and considering the comments
received, we are finalizing Sec. 84.4 as proposed with three
modifications. First, we are replacing the phrase ``emotional or mental
illness'' with ``mental health condition'' in Sec. 84.4(b)(1)(ii).
Second, we are replacing the phrase ``emotional illness'' with ``mental
health condition'' in Sec. 84.4(b)(2). Third, we are replacing a list
of terms at Sec. 84.4(g) with a citation to the relevant passage of
the statute that enumerates exclusions.
Notice (Sec. 84.8)
Proposed Sec. 84.8 required recipients to make available to
employees, applicants, participants, beneficiaries, and other
interested persons information about this part and its applicability to
the recipient's programs and activities, and to make the information
available to them in such
[[Page 40071]]
manner as the head of the agency or their designee finds necessary to
apprise such persons of the protections against discrimination assured
them by section 504 and this part.
The comments and our responses regarding Sec. 84.8 are set forth
below.
Comment: A commenter asked whether a statement on a website about
both the ADA and section 504 is enough and whether this notice
requirement is different from the current requirements. Another
commenter asked whether recipients are required to prominently post the
notice and provide information about filing a complaint.
Response: This notice requirement is identical to the notice
requirement in the ADA title II regulations. Recipients are required to
disseminate sufficient information to applicants, participants,
beneficiaries, and other interested persons to inform them of the
rights and protections afforded by section 504 and this regulation.
Methods of providing this information include, for example, the
publication of information in handbooks, manuals, and pamphlets that
are distributed to the public, including online material, to describe a
recipient's programs and activities; the display of informative posters
in service centers or other public places; or the broadcast of
information by television or radio. In providing the notice, the
recipient must comply with the requirements for effective communication
in Sec. 84.77. The preamble to that section, along with the preamble
from the NPRM, gives guidance on how to effectively communicate with
individuals with disabilities.
In response to the question of whether the existing notice
requirements in Sec. 84.8 are different than those in this final rule,
the biggest difference is that the existing regulations only apply to
recipients with fifteen or more employees. In addition, the existing
notice provisions provide more detailed requirements than are contained
in this final rule. For example, the existing notice section requires
an identification of the responsible employee designated pursuant to
Sec. 84.7(a). It also sets forth requirements for when the notice must
be published, methods of publishing, and the types of documents that
must contain the notice requirement.
There is another notice provision at Sec. 84.52(b) in subpart F,
Health, Welfare, and Social Services, which we are retaining. That
section states that a recipient that provides notice concerning
benefits or services or written material concerning waivers of rights
or consent to treatment shall take such steps as are necessary to
ensure that qualified individuals with disabilities, including those
with impaired sensory or speaking skills, are not denied effective
notice because of their disability.
Section 84.7, Designation of responsible employee and adoption of
grievance procedures, is retained in the final rule. Section 84.7(a)
requires that recipients with fifteen or more employees designate at
least one person to coordinate their efforts to comply with this part.
Section 84.7(b) requires those recipients to adopt grievance procedures
that incorporate due process standards and that provide for the prompt
and equitable resolution of complaints. Although not required, we
recommend that notices contain information about the coordinator and
about the grievance procedures.
Summary of Regulatory Changes
For the reasons set forth above and considering the comments
received, we are finalizing Sec. 84.8 as proposed with no
modifications.
Definitions (Sec. 84.10)
In Sec. 84.10 of the proposed rule, we set out proposed
definitions of various terms. The comments and our responses are set
forth below. Unless otherwise indicated, the definitions are retained
as proposed.
Auxiliary Aids and Services
Discussion of this term can be found at Sec. 84.77.
Archived Web Content
The proposed rule defined ``archived web content'' as ``web 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.''
Comment: Some commenters requested clarity on the definition of
archived web content. Some of these commenters stated that the word
``maintain'' could have multiple meanings, such as simply continuing
possession or engaging in repair and upkeep.
Response: The Department added a new part to the definition to help
clarify the scope of content covered by the definition and associated
exception. The new part of the definition, the first part, specifies
that archived web content is limited to three types of historic
content: web content that was created before the date the recipient is
required to comply with subpart I; web content that reproduces paper
documents created before the date the recipient is required to comply
with subpart I; and web content that reproduces the contents of other
physical media created before the date the recipient is required to
comply with subpart I.
In addition to adding a new first part to the definition of
archived web content, the Department made one further change to the
definition from the NPRM. In the NPRM, what is now the second part of
the definition pertained to web content that is ``maintained''
exclusively for reference, research, or recordkeeping. In the final
rule, the word ``maintained'' is replaced with ``retained.'' The
revised language is not intended to change or limit the coverage of the
definition. Rather, the Department recognizes that the word
``maintain'' can have multiple meanings relevant to this rule. In some
circumstances, ``maintain'' may mean ``to continue in possession'' of
property, whereas in other circumstances it might mean ``to engage in
general repair and upkeep'' of property.\18\ In contrast, the third
part of the definition states that archived web content must not be
altered or updated after the date of archiving. Such alterations or
updates could be construed as repair or upkeep, but that is not what
the Department intended to convey with its use of the word
``maintained'' in this provision. To avoid confusion about whether a
recipient can alter or update web content after it is archived, the
Department instead uses the word ``retained,'' which has a definition
synonymous with the Department's intended use of ``maintain'' in the
NPRM.\19\
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\18\ Maintain, Black's Law Dictionary (11th ed. 2019).
\19\ See Retain, Black's Law Dictionary (11th ed. 2019) (``To
hold in possession or under control; to keep and not lose, part
with, or dismiss.'').
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Additional discussion of this term can be found at Sec. 84.85(a).
Companion
The proposed rule defined 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
same definition is contained in the general section of the
communications subpart at Sec. 84.77(a)(2).
Comments: Representatives from many disability rights organizations
commented that the definition needs greater clarity. They said that it
is critical that recipients confirm the companion's role and, as
appropriate, obtain consent from the individual with a disability that
they want the
[[Page 40072]]
companion to participate in their care. Some commenters noted that this
concern is discussed somewhat in the communications section, but they
suggested that it be made clear that these standards apply in all
situations.
A disability rights organization asked that we clarify that the
determination as to who is an appropriate companion must rest with the
individual with a disability (or their designated decision-maker
pursuant to State law) and not with the recipient. They expressed the
view that that this is critically important because to not do so might
violate privacy laws and may also undermine the autonomy of people with
disabilities. They requested that the clarification language be added
to the text of the regulation.
Another disability rights organization similarly requested changes
to the regulatory text. They objected to the use of the term
``companion,'' which they believed is based on the stereotype that
treats all individuals with disabilities as eternal children who must
have a companion to communicate with recipients. They also objected to
the term because it implies that the companion is communicating with
the recipient independently rather than revoicing or repeating what the
person with disabilities wants to be expressed and understood.
According to the organization, this perpetuates an endemic and
unhealthy form of disability-based discrimination expressed in all
facets of society, but especially in health care. Commenters suggested
replacement of the term ``companion'' with the term ``communication
intermediary'' or an equivalent term that more accurately describes the
role. Their suggested definition for the new term is a person who
assists an individual with a disability to effectively communicate, to
be understood, and to understand others. The role of this person is to
relay information. Recipients must communicate with the individual with
a disability directly and respectfully, and they may not use the
presence of the other person as a reason to evade that obligation.
Response: We decline to revise the regulatory text, which is the
same that appears in the ADA title II regulations at 28 CFR
35.160(a)(2). While we appreciate commenters' concerns, the definition
makes clear that the companion must be ``an appropriate person with
whom the public entity should communicate.'' Consistent with the title
II regulation, this means the companion must be ``someone with whom the
public entity normally would or should communicate'' in the situation
at hand.\20\ This requirement ensures that companions with disabilities
receive effective communication even if the person that the companion
accompanies is not an individual with a disability. As to the commenter
who wanted a change in the word ``companion'' and provided language to
describe the duties of that person, we do not believe that revisions in
the text are needed, and it is beyond the scope of the Department's
responsibility as the person with a disability will determine the
appropriate duties for their companion. Accordingly, we decline to
revise the definition of companion.
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\20\ 28 CFR part 35, appendix A at 668 (2023).
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Conventional Electronic Documents
Discussion of this term can be found in subpart I. The Department
is deleting ``database file formats'' from the definition.
Current Illegal Use of Drugs
The proposed rule said that ``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. This definition is
identical to the one in the ADA title II regulations.
Comments: The Department received many comments on this definition.
They uniformly had the same concern about the meaning of ``current.''
Many commenters said that the definition, which comes from ADA
regulations, is antiquated and does not take into account the
importance of understanding that for people with substance use
disorders, recurrence of use is common and it does not mean the
treatment is not or will not be successful. Instead, in many cases it
may mean that the current treatment plan is not working and should be
revisited and revised. Commenters maintained that without an expansive
and nuanced consideration of the non-linear nature of treatment and
recovery, including possible recurrent use, protections for people with
substance use disorders (SUD) are incomplete and inappropriately
distinguished from other forms of disability.
Response: The Department appreciates all commenters' feedback. The
Department acknowledges commenters' concerns. However, the phrase
``illegal use of drugs'' is used in both the ADA and the Rehabilitation
Act. Congress' intended meaning for the phrase is clear. As explained
in the preamble to the title II ADA regulations, the definition of
``current illegal use of drugs'' is based on the report of an ADA
Conference Committee, H.R. Conf. Rep. No. 596, 101st Cong., 2d Sess. 64
(1990). That Report says that ``current illegal use of drugs'' is use
``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.'' Both the ADA and the Rehabilitation Act define
``individual with a disability'' as not including an individual who is
currently engaging in the illegal use of drugs when a covered entity or
recipient acts on the basis of such use.
We therefore decline to revise the definition of ``current illegal
use of drugs.''
Direct Threat
The proposed rule said that ``direct threat'' means 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. With respect to employment, the term is
as defined by the Equal Opportunity Commission's regulation
implementing title I of the Americans with Disabilities Act of 1990, at
29 CFR 1630.2(r) (https://www.ecfr.gov/current/title-29/section-1630.2#p-1630.2(r)).
Comment: The Department received comments from many disability
rights organizations recommending revisions to the term ``direct
threat'' as defined by the EEOC pursuant to its authority under title I
of the ADA. In addition, they objected to the statement in the proposed
rule's preamble that a person who poses a direct threat is not
``qualified.''
Many commenters said that whether an individual is qualified is a
threshold question for a person with a disability to establish, whereas
whether an individual poses a direct threat is an affirmative defense
for a recipient to establish. They recommended that we apply the direct
threat analysis as set out in the ADA title II regulations and they
provided a sentence that they would like inserted in the preamble.
Response: We appreciate the commenters' feedback. We note, however,
that the Department has no authority to change the definition in EEOC
regulations promulgated under title I of the ADA.
The definition of ``direct threat'' set forth in proposed paragraph
(1) was added to be consistent with the ADA title II regulation and
with the Supreme Court case of School Board of Nassau County v.
Arline.\21\ As to the request that we insert the commenters'
[[Page 40073]]
suggested language into the commentary, we reiterate the statement in
the NPRM preamble, which also mirrors appendix B to the ADA title II
regulation, that ``[a]lthough 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.'' It is
important that the interpretation of ``direct threat'' in paragraph (1)
of this rule and its interpretation in the ADA title II regulations be
consistent. Accordingly, we decline to revise the definition of
``direct threat.''
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\21\ 480 U.S. 273 (1987).
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Facility
The proposed rule defined ``facility'' as ``all or any portion of
buildings, structures, sites, complexes, 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.''
Comment: A commenter representing persons with disabilities
suggested adding language to address drive-through services. The
comment notes that courts have resisted accessibility requirements for
drive-through services and that drive-throughs are an important point
of access for obtaining prescription medication and were a first line
of service at the start of the COVID pandemic. The comment recommended
including ``product or service dispersing facilities and drive-
throughs'' in the list of items that constitute a facility.
Response: The Department believes it is not necessary to include
any new regulatory text because the facility housing drive-through
services is already included within the expansive text of the existing
language. Facility includes buildings, structures, passageways, and
equipment, which will cover all the areas that constitute the drive-
through facility. In addition, if offered, drive-through services are a
part of the recipient's program or activity and all the provisions of
the section 504 rule will apply to this service, ensuring that persons
with disabilities have access to this service.
We have retained the proposed definition of ``facility.''
Federal Financial Assistance
The proposed rule provided a detailed definition of ``Federal
financial assistance'' as any grant, cooperative agreement, loan,
contract (other than a direct Federal procurement contract or 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 funds, services of Federal
personnel, real or personal property or any interest in or use of such
property, or any other thing of value by way of grant, loan, contract,
or cooperative agreement. This definition is consistent with the
definition in the existing regulation, with addition of ``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 from the existing definition.
Comment: Several commenters asked that the Department make clear
that tax-exempt status is not ``Federal financial assistance'' and thus
does not trigger the application of section 504. They noted that
several recent cases brought under title IX have held that tax-exempt
status is ``Federal financial assistance.'' \22\ They also state that
most other cases that have addressed whether tax-exempt status
constitutes Federal financial assistance for purposes of statutes
triggered by the receipt of such aid have held that tax-exempt status
is not Federal financial assistance and thus does not trigger coverage
of the statute in question.
---------------------------------------------------------------------------
\22\ See E.H. v. Valley Christian Acad., 616 F.Supp.3d 1040
(C.D. Cal. 2022); Buettner-Hartsoe v. Baltimore Lutheran High Sch.
Ass'n, No. RDB-20-3132, 2022 WL 2869041 (D. Md. Jul. 21, 2022) E.H.
v. Valley Christian Acad., 616 F.Supp.3d 1040 (C.D. Cal. 2022).
---------------------------------------------------------------------------
Response: Generally, tax benefits, tax exemptions, tax deductions,
and most tax credits are not included in the statutory or regulatory
definitions of Federal financial assistance.\23\ While a few courts
have held that tax-exempt status can constitute Federal financial
assistance, most courts that have considered the issue have concluded
that typical tax benefits are not Federal financial assistance because
they are not contractual in nature.\24\ Accordingly, this Department
generally does not consider tax exempt status to constitute Federal
financial assistance. However, the definition of ``Federal financial
assistance'' makes clear that Federal financial assistance that the
Department plays a role in providing or administering is considered
Federal financial assistance under this rule.
---------------------------------------------------------------------------
\23\ See, e.g., 42 U.S.C. 2000d-1; 28 CFR. 42.102(c); 31 CFR
28.105. See also U.S. Dep't of Justice, Title VI Legal Manual, sec.
V.C.
\24\ See, e.g., Paralyzed Veterans of Am. v. Civil Aeronautics
Bd., 752 F.2d 694, 708-09 (DC Cir. 1985); Johnny's Icehouse, Inc. v.
Amateur Hockey Ass'n of Ill., 134 F. Supp. 2d 965, 971-72 (N.D. Ill.
2001); Chaplin v. Consol. Edison Co., 628 F. Supp. 143, 145-46
(S.D.N.Y. 1986); Bachman v. Am. Soc'y of Clinical Pathologists, 577
F. Supp. 1257, 1264-65 (D.N.J. 1983).
---------------------------------------------------------------------------
Comment: A commenter asked the Department to confirm that the
definition of Federal financial assistance in this rule does not limit
the scope of its proposed revision of regulations implementing section
1557. If finalized as proposed, the section 1557 regulations would,
consistent with the ACA, define ``Federal financial assistance'' to
include grants, loans, and other types of assistance from HHS, as well
as credits, subsidies and contracts of insurance in accordance with the
text of section 1557.\25\
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\25\ See ``Nondiscrimination in Health Programs and
Activities,'' 87 FR 47824, 47912 (Aug. 4, 2022).
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Response: Section 1557 is a separate statute from section 504 and
its regulation contains a more expansive definition of Federal
financial assistance than section 504 does.\26\ The definition of
Federal financial assistance in this regulation does not constrain or
otherwise limit the definition of Federal financial assistance under
the Department's section 1557 regulations.
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\26\ Id. The existing 1557 regulation at 45 CFR 92.3(a)(1)
(2020) also includes including credits, subsidies, or contracts of
insurance provided by the Department.
---------------------------------------------------------------------------
Comment: One commenter asked that the Department provide guidance
on whether section 504 requirements apply to State Medicaid programs
and managed care plans with which State agencies contract to administer
Medicaid services to beneficiaries.
Response: When HHS provides Federal financial assistance, including
grants, to an entity, section 504 obligations attach with the receipt
of the funds. In essence this relationship is in the form of a contract
between the Federal Government and the recipient, by which the
recipient states that it will not discriminate on the basis of
disability in its operation of its programs or activities as a
condition of the receipt of Federal funds.\27\ When the recipient
contracts out responsibilities under the grant program or disburses the
funds to other subgrantees that will also operate the program or
activity, these statutory and contractual obligations pass down to the
subgrantee or subcontractor.
---------------------------------------------------------------------------
\27\ See 45 CFR 84.5 (``An applicant for Federal financial
assistance to which this part applies shall submit an assurance, . .
. that the program or activity will be operated in compliance with
this part.'')
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[[Page 40074]]
In the case of the Department's Medicaid program, State Medicaid
programs receive Federal funds and are therefore covered by section
504.\28\ When the State Medicaid agency provides Medicaid funds to
managed care plans to manage and operate specific Medicaid programs or
activities, those managed care plans are also subject to section 504.
---------------------------------------------------------------------------
\28\ See, e.g., U.S. v. Baylor Univ. Med. Ctr., 736 F.2d 1039,
1042 (5th Cir. 1984) (holding that ``Medicare and Medicaid are
federal financial assistance for the purpose of Section 504''),
cert. denied, 469 U.S. 1189 (1985).
---------------------------------------------------------------------------
We have retained the proposed definition of ``Federal financial
assistance.''
Foster Care
Comment: Commenters asked us to include the phrase ``either
directly or through contracts, agreements, or other arrangements with
another agency or entity'' to describe the covered recipients of
Federal financial assistance who provide foster care.
Response: The language ``recipient of Federal financial assistance
made directly or through contracts, agreements, or other arrangements''
is included in the child welfare section, Sec. 84.60(b), to describe
covered entities.
We decline to revise the definition of ``foster care.''
Individual With a Disability
The proposed rule said that an individual with a disability means a
person who has a disability but the term 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.''
Kiosk
Discussion of this term can be found at subpart I.
Most Integrated Setting
Discussion of this term can be found in Integration (Sec. 84.76).
Mobile Applications
The Department did not receive comments on the definition of this
term and is finalizing it without modifications.
Other Power-Driven Mobility Device
Discussion of this term can be found in Mobility Devices (Sec.
84.74).
Parents
Discussion of this term can be found in Child Welfare (Sec.
84.60).
Qualified Individual With a Disability
Comment: One group of commenters representing persons with
disabilities asked that the Department clarify that paragraph (3) in
the definition of qualified individual with a disability refers to both
public and private recipients.
Response: That paragraph refers to childcare, preschool,
elementary, secondary, or adult educational services and it encompasses
both public and private entities that are recipients from HHS. The
Department has revised paragraph (4) addressing postsecondary and
career and technical education services to be consistent with the
Department of Education regulations.
We decline to revise the definition of ``qualified individual with
a disability.''
Qualified Interpreter
Comment: Some commenters requested that the Department change the
definition of ``qualified interpreter'' to more closely align with the
definition of qualified interpreter for individuals with limited
English proficiency proposed by the Department in its recent NPRM for
section 1557.\29\
---------------------------------------------------------------------------
\29\ 87 FR 47824 (Aug. 4, 2022).
---------------------------------------------------------------------------
Response: The Department believes that the proposed definition of
qualified interpreter in this rulemaking accurately describes the
requirements of a qualified interpreter for people with disabilities.
Additionally, this definition is added for consistency with title II of
the ADA. For the many reasons explained in the NPRM, the Department
believes there is and should be consistency between the relevant
provisions of section 504 and title II of the ADA. Many recipients
under section 504 are also covered entities under the ADA and the
Department does not wish to cause confusion or adopt different
standards in those circumstances. Both recipients and individuals with
disabilities benefit from establishing consistent regulations.
We acknowledge that many recipients under section 504 are also
covered entities under the Department's recent final rule under section
1557. Recipients must meet their obligations under both laws. If an
interpreter does not adhere to generally accepted interpreter ethics
principles, including client confidentiality, as they are required to
do under section 1557, such an interpreter may not be a qualified
interpreter for purposes of section 504. A failure to adhere to ethics
principles may compromise the interpreter's impartiality and could also
prevent a recipient from providing communication that is as effective
as the recipient's communication with others (who, in the medical
context, are generally entitled to confidential communication).
Similarly, an interpreter that does not demonstrate proficiency in
communicating in, and understanding, (1) both English and any non-
English languages necessary to communicate effectively with an
individual with a disability, such as American Sign Language, or (2)
another communication modality (such as cued-language transliterators
or oral transliteration), is likely not a qualified interpreter under
section 504 because they are unlikely to be able to interpret
effectively and accurately, both receptively and expressively. In order
to interpret effectively, as they are required to do under section 504,
qualified interpreters should be able to interpret without changes,
omissions, or additions and while preserving the tone, sentiment, and
emotional level of the original statement. We decline to revise the
definition of ``qualified interpreter.''
Section 508 Standards
Discussion of this term can be found in subpart I.
Service Animal
Discussion of this term can be found at Service animals (Sec.
84.73).
State
The definition of ``State'' has been revised to more closely track
the definitions section of the Rehabilitation Act, 29 U.S.C. 705(34).
This is a not a substantive change.
WCAG 2.1
Discussion of this term can be found at subpart I.
User Agent
The Department has added a definition for ``user agent.'' The
definition exactly matches the definition of user agent in WCAG
2.1.\30\ WCAG 2.1 includes an accompanying illustration, which
clarifies that the definition of user agent means ``[w]eb browsers,
media players, plug-ins, and other programs--including assistive
technologies--that help in retrieving, rendering, and interacting [w]eb
content.'' \31\
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\30\ See W3C, Web Content Accessibility Guidelines 2.1 (June 5,
2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F. Copyright (copyright) 2023 W3C[supreg]. As
discussed below, WCAG 2.1 was updated in 2023, but this rule
requires conformance to the 2018 version. The Permalink used for
WCAG 2.1 throughout this rule shows the 2018 version of WCAG 2.1 as
it appeared on W3C's website at the time the NPRM was published.
\31\ Id.
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The Department added this definition to the final rule to ensure
clarity of the term ``user agent'' now that the term appears in the
definition of ``web
[[Page 40075]]
content.'' As discussed further at subpart I, the Department has more
closely aligned the definition of ``web content'' in the final rule
with the definition in WCAG 2.1. Because this change introduced the
term ``user agent'' into the Department's section 504 regulation for
recipients of Federal financial assistance, and the Department does not
believe this is a commonly understood term, the Department has added
the definition of ``user agent'' provided in WCAG 2.1 to the final
rule.
Additional discussion of this term can be found at subpart I.
Web Content
Discussion of this term can be found at subpart I. The Department
is editing this definition to more closely align with the definition
included in WCAG 2.1.
Wheelchair
Discussion of this term can be found in Mobility Devices (Sec.
84.74).
Summary of Regulatory Changes
For the reasons set forth above and considering the comments
received, we are finalizing this section with six changes. First, we
are revising the definition of ``archived web content''; second, we are
revising the definition of ``conventional electronic documents'';
third, we are revising the term ``most integrated setting''; fourth we
are adding a definition of ``Section 508 Standards''; fifth, we are
adding a definition of ``user agent''; and sixth, we are revising the
definition of ``web content.''
Subpart B--Employment Practices
This subpart addresses the section 504 requirements in the area of
employment.
Discrimination Prohibited (Sec. 84.16)
Proposed Sec. 84.16(a) prohibited discrimination on the basis of
disability in employment under any program or activity receiving
Federal financial assistance from the Department.
Proposed Sec. 84.16(b) stated that the standards used to determine
whether there has been discrimination in this context shall be the
standards applied under title I of the ADA as they relate to
employment, and, as such sections relate to employment, the provisions
of sections 501 through 504 and 511 of the ADA as implemented in the
EEOC's regulation at 29 CFR part 1630.
The comments and our responses regarding subpart B are set forth
below.
Comment: Many organizations representing individuals with
disabilities supported clarifying employment obligations and aligning
the employment section of the rule with title I of the ADA. They noted
that individuals with disabilities are more likely than individuals
without disabilities to work in low paying jobs. Several commenters
said that workforces should include individuals with disabilities in
health care facilities, schools, and social work agencies to help
parents and caregivers navigate the systems. They stated that a robust
and disability aware workforce is needed to realize an equitable and
nondiscriminatory health care system. Several individuals described
their personal experiences of discrimination in the workplace.
Response: The Department appreciates the commenters' feedback on
the prohibitions against discrimination in employment and of the
requirement that the employment standards be aligned with title I of
the ADA. We agree that it is important for workforces to include
individuals with disabilities.
The Department notes that individuals who have experienced
discrimination in the workplace may file complaints with OCR, though
certain cases of employment discrimination may not be within OCR's
statutory jurisdiction and may result in a case referral to the
appropriate agency. As such, any person who believes they or another
party has been discriminated against on the basis of race, color,
national origin, sex, age, or disability, can visit the OCR complaint
portal to file a complaint online at ocrportal.hhs.gov/ocr/smartscreen/main.jsf. We also accept complaints by email at [email protected]
and by mail at Centralized Case Management Operations, U.S. Department
of Health and Human Services, 200 Independence Avenue SW, Room 509F,
HHS Building, Washington, DC 20201.
Summary of Regulatory Changes
For the reasons set forth above and considering the comments
received, we are finalizing Sec. 84.16 as proposed with no
modifications.
Subpart C--Program Accessibility
Subpart C addresses program accessibility. It provides standards
for new construction and alterations and applies 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.
Discrimination Prohibited (Sec. 84.21)
Section 84.21 proposed to require 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.
Existing Facilities (Sec. 84.22)
Section 84.22 currently provides that a recipient shall operate its
program or activity so that when viewed in its entirety, it is readily
accessible to individuals with disabilities, but does not require a
recipient to make each of its existing facilities accessible to and
usable by individuals with disabilities. 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 structural changes.
We proposed in Sec. 84.22(a)(2) to include language from the ADA
title II regulation and from the section 504 regulations for federally
conducted programs. It 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 or
activity or in undue financial and administrative burdens. The
provision further states that 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 provision
also states that 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. We proposed to retain Sec.
84.22(c). It provides that if a recipient with fewer than fifteen
employees that provides health, welfare, or other social services
finds, after consulting with a persons with a disability who is seeking
services, that there is no method of providing physical access to its
facilities other than making a significant alteration to its existing
facilities, the recipient may, as an alternative, refer the person with
a disability to other providers of the services that the person seeks
that are accessible.
New Construction and Alterations (Sec. 84.23)
Section 84.23(a) currently requires each facility (or part of a
facility)
[[Page 40076]]
constructed by, on behalf of, or for the use of a recipient, when such
construction was begun after June 3, 1977, to be designed and
constructed in such a manner that the facility (or part of a facility)
is readily accessible to and usable by individuals with disabilities.
Section 84.23(b) similarly currently requires that alterations to a
recipient's facility after June 3, 1977, that affect 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.
In the NPRM, Sec. 84.23(c) proposed language that lays out
accessibility standards and compliance dates for recipients that are
public entities. Section 84.23(d) lays out accessibility standards and
compliance dates for recipients that are private entities. The
Department's proposal seeks to use the Standards currently used in the
ADA: the 2010 ADA Standards for Accessible Design (2010 Standards).
Section 84.23(c) and (d) proposed to provide a series of compliance
dates for all physical construction or alterations. Under this
proposal:
If construction commences on or after one year from the publication
date of the final rule, the construction must comply with the 2010
Standards.
If construction commences on or after the effective date of the
rule, but before one year from the publication date of the final rule,
the construction must comply either with the Uniform Federal
Accessibility Standards (UFAS) or the 2010 Standards.
If construction commences on or after January 18, 1991, but before
the effective date of the final rule, the construction will be deemed
to be in compliance if it meets UFAS.
If construction commences after June 3, 1977, but before January
18, 1991, then the construction will be deemed to be in compliance if
it meets ANSI, the American National Standard Institute's
Specifications for Making Buildings and Facilities Accessible to, and
Usable by, the Physically Handicapped (ANSI A117.1-1961 (R1971)).
In Sec. 84.23(e), we proposed to provide that newly constructed or
altered facilities that do not comply with the section 504
accessibility standards that were in place at the time of construction
shall be made accessible in accordance with the 2010 Standards. In
addition, if the construction occurred on or after January 18, 1991,
and before the date one year from publication date of this rule in
final form the recipient has the option of using UFAS or the 2010
Standards as the accessibility standard.
In Sec. 84.22(g) of the NPRM, we proposed to follow the lead
established by DOJ in its ADA regulations and establish a safe harbor
for specific building elements. It clarifies that, if a recipient in
the past had constructed or altered an element in accordance with the
specifications of the accessibility code in effect at the time of
construction by HHS's section 504 rule (e.g., the specifications of
UFAS or ANSI), such recipient is not required to retrofit that element
to reflect incremental changes in this rule's accessibility standards.
In these circumstances, the recipient would be entitled to a safe
harbor for the already compliant elements until those elements are
altered.
The comments and our responses regarding subpart C are set forth
below.
Comments: Commenters were supportive of the Department's proposal
to retain the basic construct of its existing section 504 rule,
including strict compliance standards for new construction and
alterations and a program accessibility approach for programs carried
out in existing facilities. Many commenters, particularly individuals
with disabilities, expressed dismay that physical barriers continue to
exist so many years after the enactment of section 504, pointed out how
these barriers limit or deny access to health care, and strongly urged
the Department to take effective and vigorous action to enforce the
regulations that are being developed. Other commenters raised concerns
about specific issues in the Department's individual regulatory
sections and suggested alternative text and interpretations.
Response: The Department thanks those individuals who took the time
to share their experiences and concerns with the Department. These
comments provided support for the Department's decision to address
problems that persons with disabilities face in getting access to
health care and human services, particularly with respect to medical
treatment, accessible medical equipment, participation in child welfare
programs, and access to websites and kiosks. The Department remains
committed to maintaining its active enforcement program and notes that
persons who believe that they have been discriminated against in the
receipt of health care and social services may choose to file
complaints with the Department and the Department will review and
investigate complaints and work to achieve compliance with section 504
in those instances where the investigation reveals that discrimination
has occurred. The Department will respond to the additional points
raised by commenters in the individual sections that follow.
Scope of Accessibility
Comments: Several commenters expressed concern that the
Department's approach to program accessibility did not address a range
of other important access concerns. One commenter noted that access was
more than just building and that persons with environmental illness and
other invisible disabilities are denied access because of barriers
created by gases from carpeting and the use of air fresheners in
buildings. Another commenter included in its list of barriers that the
Department should be addressing the use of inaccessible shuttle
services offered by or for hospitals and operational concerns, such as
storage of items on wheelchair ramps, blocked doorways, or the use of
narrow or constricting rope lines.
Response: The Department notes that subpart C on Program
Accessibility is just one section 504 requirement and other provisions
in the rule address other aspects of accessibility. For example, the
list of general prohibitions against discrimination found at Sec. Sec.
84.68, particularly Sec. 84.68(b)(7) on reasonable modifications, and
84.70 on maintenance of accessible features, address the accessibility
concerns raised by these commenters.
Program Accessibility
Comments: Disability rights organizations expressed concern with
the Department's continued use of the program accessibility concept for
existing facilities. One organization recommended deletion of the
approach because of changes in the health care industry, i.e., the
propensity for horizontal and vertical consolidation where hospitals
merge, acquire smaller provider practices and specialty clinics, and
are in turn acquired by larger regional and nation health care
entities. The comment asserts that allowing accessible features in only
some of these facilities under the guise of overall program access will
deny persons with disabilities patient choice, care continuity, and
stakeholder consultation. Other commenters, including organizations
representing doctors and health care providers, expressed support for
the use of program accessibility and the flexibility that it provides
to small providers and approved of the Department's inclusion of the
use of the defenses of fundamental alteration and undue financial and
administrative burdens.
Others recommended that the Department maintain a high standard for
these defenses, allowing persons
[[Page 40077]]
with disabilities the opportunity to participate in and benefit from
health care services and programs. They also suggested that the rule
should include a prompt time frame for the decision by a recipient of
the use of these defenses so that an individual is not delayed access
because they must wait for a written decision. Another disability
rights organization expressed concern that the expanded use of
telemedicine, while necessary and important, should not replace regular
in-person visits in lieu of making the recipient's facilities
accessible.
Response: The program accessibility requirement has been a
significant feature of the Department's section 504 regulation since
1977 and is, in fact, a part of other Federal section 504 regulations,
both for federally assisted and federally conducted rules.\32\ The
Department notes that the program accessibility requirement is derived
from the language of section 504 itself, which prohibits discrimination
under any ``program or activity.'' The Department's regulation here is
also consistent with guidance from DOJ under E.O. 12250. DOJ's section
504 coordination regulation, which sets forth guidelines for Federal
agencies to follow in issuing section 504 rules, includes language on
program accessibility.\33\ That provision serves as a foundation for
the Department's section on program accessibility. Accordingly, the
Department will continue with the concept of program accessibility as
the basis for its treatment of how section 504 applies to existing
facilities in its final rule. The Department notes, however, that it
will continue to interpret the program accessibility concept broadly,
ensuring that persons with disabilities have access to appropriate
health care offered by recipients.
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\32\ See, e.g., 34 CFR 104.21 and 104.22 (Education); 24 CFR
8.20, 8.21, and 8.2 (HUD); 29 CFR 32.26 and 32.27 (Labor).
\33\ Pursuant to E.O. 12250, DOJ coordinates implementation of
section 504. 28 CFR part 41. The program accessibility requirements
can be found at 28 CFR 41.56 and 41.57.
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Section 84.22(a)(2) of the Department's proposed rule states 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 nature of its program or activity or in 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 in undue financial and
administrative burdens, it nevertheless must take any other steps
necessary to ensure that individuals with disabilities receive the
benefits or services it provides.
It is the Department's view that this paragraph already sets a high
bar and that compliance would in most cases not result in undue
financial and administrative burdens for 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
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 to require this
determination to be made by a high level official, no lower than a
Department head, having budgetary authority and responsibility for
making spending decisions. The Department recognizes that its
regulatory language does not contain any language about the timing of
the decision that an action is a fundamental alteration or would cause
an undue burden. Given the wide range of sizes and types of the
Department's recipients, the Department believes that setting any
specific timetable would be inappropriate. Of course, any person who
believes that they or any specific class of persons has been injured by
the recipient's decision or failure to make a decision may file a
complaint under the compliance procedures established by Sec. 84.98 of
this part, which incorporates procedural provisions applicable to the
Department's title VI of the Civil Rights Act of 1964 regulations.
As to the comment concerning telehealth, the Department notes its
discussion on this subject below at subpart H, Communications. The use
of telehealth is an important advance in the provision of health care,
but it is not the appropriate response for all situations and an in-
office visit remains an important tool in the recipient's arsenal of
health care solutions. Thus, telehealth in and of itself is not a
solution to the existence of a health care provider's inaccessible
facilities.
Small Providers (Sec. 84.22(c))
Comments: The Department received numerous comments on this
paragraph. Disability rights organizations expressed concern about the
Department's continued inclusion of a provision allowing a recipient
with fewer than fifteen employees to refer a patient to alternative
providers when the recipient finds, after consultation with a person
with a disability seeking its services, that there is no method of
complying with the program accessibility requirement other than making
a significant alteration in its existing facilities. Some commenters
suggested that this provision be deleted. Other commenters stated that
if a recipient must use an alternative to making its services
accessible, the recipient must take all steps necessary to provide the
services in the most integrated setting, and give due consideration to
the individual's preference after an individualized assessment of the
person's needs, and provide accessible transportation at no cost to the
patient. Organizations representing health care providers expressed
support for the alternative referral provision, noting that it helps
avoid circumstances in which complying with the rule's requirements
would present an insurmountable burden for small practices and
negatively impact a practice's resources for delivering care to all
patients.
Response: The Department is retaining this provision in the final
rule. It is necessary to keep this provision in the final rule because
it implements section 504(c) of the Rehabilitation Act. Section 504(c),
which Congress added to the statute in 1988, states that ``[s]mall
providers'' ``are not required by [section 504(a)] to make significant
structural alterations to their existing facilities for the purpose of
assuring program accessibility'' where ``alternative means of providing
the services are available.'' \34\ The Department believes that this
provision provides flexibility for the many very small providers that
the Department funds. One comment suggested reducing the scope of the
alternative referral to a smaller number of employees, perhaps five or
fewer employees. The Department considered this proposal, but believes
that changing this number here, when the fifteen or fewer number has
been consistently used by the Department for its section 504 regulation
since its inception, would likely cause confusion. In
[[Page 40078]]
addition, the Department notes that, in fact, a significant percentage
of the firms providing health care services (which includes doctors,
dentists, and other health care providers) have fewer than five
employees (52%) and an additional 20.4% have between five and nine
employees.\35\ The Department also notes that the consequences feared
by organizations representing persons with disabilities, i.e., that
doctors' offices in large numbers would use this alternative referral
provision to avoid making their offices accessible, has not been
historically proven true, even though this provision has been in the
Department's regulation since 1977.
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\34\ 29 U.S.C. 794(c).
\35\ U.S. Census Bureau, Stat. of U.S. Bus. (2019), https://www.census.gov/programssurveys/susb.html.
---------------------------------------------------------------------------
Accessibility Standard
Comments: Comments from organizations representing persons with
disabilities and a leader in the field of accessibility standards
strongly recommended not using the ADA Accessibility Standards as the
accessibility design standards in the final rule. They noted that the
2010 ADA Standards for Accessible Design is based on the U.S. Access
Board's (Access Board) 2004 Accessibility Guidelines and is already
out-of-date. They propose using the most current standard that exists
because the standard in the Department's rule will likely apply into
future decades. These groups recommend the use of the International
Building Code (IBC) 2021 Chapter 11 and the International Code Council
(ICC)/ANSI A117.1 in its entirety. They expressed the view that this
approach will provide greater overall accessibility for people with
disabilities and a higher level of buildings and facilities
accessibility than the 2010 Standards. They also state that ICC/ANSI's
A117.1 standards are the most current standards, have been developed by
the private sector, and are already in use by many State and local
jurisdictions. They state that these standards provide greater overall
accessibility to people with disabilities and that the Department's
proposed standards are based on knowledge and anthropometrics from 19
years ago (when the wheelchairs in use were smaller than those often
used today). In addition, many individual commenters related stories of
difficulties in accessing accessible health care and suggested that
whatever standards that the Department is using should address a wide
range of concerns (e.g., having an accessible front entrance to a
health care facility, or locating accessible room in hospitals close to
nursing stations and making their use convenient for the nursing
staff).
Response: While there are definite advantages to updating the
accessibility design standards in the final section 504 rule to the
most current standards, the Department believes that having different
standards for building accessibility for the ADA and section 504 would
create confusion and uncertainty for our recipients, most of whom would
be then subjected to two different standards for making their
facilities accessible. The Department is also aware that not all
jurisdictions in the United States have adopted the ICC/ANSI 117.1
requirements and adopting them in this rule would have significant cost
implications for those recipients in jurisdictions that have not yet
adopted the new ICC/ANSI standards. Further, the Department is aware
that the IBC is in the process of an even further update of these
standards that will address an important building block issue, the use
of a wider turning radius for larger wheelchairs.
Most importantly, however, the Federal Government already has in
place a process for updating its accessibility standards and the
Department believes that it should follow the existing procedure in
place. That process includes review of accessibility guidelines by the
Access Board, the agency in the Federal executive branch with the
necessary architectural expertise to determine the appropriate
accessibility guidelines, after conferring with all necessary
stakeholders through its own notice-and-comment process. Once the
Access Board updates its accessibility guidelines, Federal agencies
that enforce the ADA and section 504 (and other Federal laws requiring
accessible facilities) can move forward to adopt new, updated
accessibility standards, for both their federally assisted and
federally conducted programs. This process ensures that the Federal
Government will speak with one voice on the issue of accessible
building design.
The Department recognizes that its standards development process
can be a lengthy one and that the Federal process is slower and less
dynamic than the process followed by the private sector. The private
code process allows State and local jurisdictions to determine when,
whether, and in what detail they will adopt the IBC's most current
standards. Under the ADA and section 504, the Federal Government
requires the development of its standards through its notice-and-
comment process, a process that allows a full consideration of the
issue of costs and the needs for the latest approaches in accessible
design.
Accordingly, the Department will retain its use of the 2010 ADA
Standards for Accessible Design in its final section 504 rule. The
Department, as a member of the Access Board, will bring these concerns
to the full Board and will work toward an update of the Board's
Accessibility Guidelines.
Subpart D--Childcare, Preschool, Elementary and Secondary, and Adult
Education
Subpart D addresses requirements for childcare, preschool,
elementary and secondary, and adult education. It retains with slight
revisions the application section and the section dealing specifically
with those types of recipients. Other sections dealing with elementary
and secondary education are reserved.
Application of This Subpart (Sec. 84.31)
Section 84.31 of the NPRM proposed to require the subpart to apply
to childcare, preschool, elementary and secondary, and adult education
programs or activities that receive direct or indirect Federal
financial assistance and to recipients that operate, or that receive
Federal financial assistance for the operation of, such programs or
activities. The Department notes that childcare vouchers or
certificates are considered indirect Federal financial assistance and,
for the purposes of applying the Child Care and Development Block Grant
(CCDBG) regulations, are assistance to the parent. Section 504 applies
to both direct and indirect Federal financial assistance, including
vouchers. This subpart reaffirms that section 504 applies to child care
providers, but it does not change the conditions that apply to
recipients of indirect Federal financial assistance under any other
statute, such as the statute establishing the CCDBG program. For
example, faith-based child care providers that receive vouchers or
certificates through the Child Care and Development Fund (CCDF) are not
barred by that statute from providing religious programming and
materials, though section 504 applies to them. OCR will work with the
Administration for Children and Families to provide additional guidance
and implementation assistance to child care providers receiving Federal
financial assistance.
[[Page 40079]]
Childcare, Preschool, Elementary and Secondary, and Adult Education
(Sec. 84.38)
Section 84.38 proposed to prohibit these types of recipients, on
the basis of disability, from excluding qualified individuals with
disabilities and requires recipients to consider the needs of such
persons in determining the aids, benefits, or services to be provided.
The comments and our responses regarding subpart D are set forth
below.
Comment: Several commenters expressed support for the inclusion of
the term ``childcare'' in the new regulation, which uses currently
accepted terms and reduces unintended stigma related to references to
parents and children with disabilities by removing outdated phrases
such as ``handicapped.''
Response: The Department appreciates commenters' support and
believes using current terms plays an important role in inclusive and
accessible childcare programs.
Comment: Several commenters requested clarification that the age
range covered under Sec. 84.38 of subpart D begins at birth and
recommended this be made explicit in the final regulation.
Response: The Department appreciates this comment. A ``qualified
individual,'' as defined under section 504, can be of any age,
including from birth. Therefore, the Department declines to add further
text in the regulation.
Comment: Many commenters emphasized that childcare providers are
currently unaware of their obligations under section 504 and the ADA.
Commenters requested additional guidance from OCR and the
Administration for Children and Families (ACF) in how these providers
can meet their obligations, including assurance of availability of
supports, training opportunities, and resources including in plain
language and multiple languages. Additionally, some commenters asked
for guidance on how this rule should be read in concert with the
Department of Education's (ED's) section 504 rule in educational
settings. Lastly, commenters asked for clarification on how
disciplinary policies and practices will be applied in a
nondiscriminatory manner.
Response: The Department collaborates closely with our Federal
partners on section 504, including DOJ and ED. In collaboration with
ED, HHS recently updated a joint Policy Statement on Inclusion of
Children with Disabilities in Early Childhood Programs, which discusses
the legal foundation for inclusion and opportunities to improve
inclusion in early childhood programs.\36\ As explained in the NPRM,
the Department believes there is and should be consistency between the
relevant provisions of section 504 and title II of the ADA and its
regulation \37\ as well as ED's section 504 regulations.\38\ We
encourage recipients to consult DOJ's guidance titled ``Commonly Asked
Questions About Child Care Centers and the Americans with Disabilities
Act,'' first issued in 1997 and updated in 2020, that describes
providers' obligations under title III.\39\ In addition to consistency
in the relevant provisions, title II of the ADA and section 504
generally are interpreted consistently, as detailed in the NPRM.
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\36\ U.S. Dep't of Health & Human Servs., U.S. Dep't of Ed.,
Policy Statement on Inclusion of Children with Disabilities in Early
Childhood Programs (updated November 2023). The guidance notes that
`` `early childhood programs' refer to those that provide early care
and education to children birth through age five, including but not
limited to childcare centers, family childcare, Early Head Start,
Head Start, home visiting programs, and public and private pre-
kindergarten in-school and community-based settings.'' Id. at 1.
\37\ See 28 CFR part 35.
\38\ See 45 CFR 84.4(b)(2) and 34 CFR 104.4(b)(2).
\39\ U.S. Dep't of Justice, Commonly Asked Questions About
Childcare Centers and the Americans with Disabilities Act (2020),
https://www.ada.gov/childqanda.htm.
_____________________________________-
Recipients should also be aware of the wealth of materials
available free of charge from the HHS-funded ADA National Network at
www.adata.org, including specific information about the provision of
childcare services.\40\ DOJ also provides guidance and resources at
www.ada.gov.
---------------------------------------------------------------------------
\40\ The ADA National Network receives funding from HHS to
provide information, guidance and training on how to implement the
Americans with Disabilities Act (ADA).
---------------------------------------------------------------------------
HHS in coordination with ED, will work with childcare providers to
provide guidance and technical assistance on implementation. Both
Departments understand that providers will need information and
technical assistance to understand their obligations to individuals
with disabilities.
Comment: Several commenters expressed concern over discrimination
in childcare settings and asked that OCR provide additional guidance
regarding the criteria used to determine whether a modification is a
``fundamental alteration'' to a program or activity or an ``undue
financial and administrative burden'' for the purpose of
responsibilities under section 504. For example, several commenters
stated that modification requests for children with diabetes in
childcare settings frequently result in denial or exclusion. Commenters
asked for a non-exhaustive list of diabetes-related examples of what
reasonable modifications in childcare settings may include.
Response: We appreciate the commenters' request for additional
guidance on reasonable modifications. As throughout this regulation,
which modifications are reasonable and necessary to avoid
discrimination depends on the specific circumstances. Examples of
common reasonable modifications for a child with diabetes may include
providing or assisting with blood glucose checks, insulin
administration, counting carbohydrates, and taking action in response
to low and high blood glucose levels. DOJ's guidance titled ``Commonly
Asked Questions About Child Care Centers and the Americans with
Disabilities Act,'' provides relevant examples of reasonable
modifications under the ADA which also apply under section 504, such as
the use of service animals, assistance with diapering and toileting,
and assistance with orthotic devices.\41\ These scenarios are
illustrative examples of what reasonable modifications a covered entity
may be required to make to ensure a child with a disability can
participate in its programs. The Department will note the request for
more examples of reasonable modifications in our continuing education
and technical assistance efforts, including the issuance of possible
further guidance.
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\41\ U.S. Dep't of Justice, Commonly Asked Questions About
Childcare Centers and the Americans with Disabilities Act (2020),
https://www.ada.gov/childqanda.htm; and see U.S. Dep't of Educ.,
Section 504 Protections for Students with Diabetes (2024), https://www2.ed.gov/about/offices/list/ocr/docs/ocr-factsheet-diabetes-202402.pdf.
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Summary of Regulatory Changes
In light of the discussion above and considering the comments
received, we are finalizing subpart D as proposed with no
modifications.
Subpart E--Postsecondary Education
Subpart E addresses postsecondary education. The Department funds
many health-related schools that are covered by this part including
schools of medicine, dentistry, and nursing. This subpart is identical
to the postsecondary education provisions in the existing section 504
regulations and in the ED regulations at 34 CFR 104.41 through 104.47.
This subpart contains the following sections: Application, Admissions
and Recruitment, Treatment of Students, Academic Adjustments, Housing,
Financial and Employment Assistance to Students, and Nonacademic
Services.
[[Page 40080]]
The comments and our responses regarding subpart E are set forth
below.
Comment: Many commenters, including disability rights
organizations, said that access to postsecondary education, adult
education, and technical programs is critical for diversifying the
medical field. Several stated that disability should be included in the
curricula of all medical, nursing, and other health care professional
schools. One commenter urged HHS to take any actions that it can to
combat discrimination against individuals with disabilities at every
level of education, especially with regard to students and
practitioners in the fields of biomedical and behavioral research,
medicine, and allied health and human services. They asserted that this
is one of the most effective steps that can be taken to eradicate a
leading cause of the most egregious and endemic forms of disability-
based discrimination in the U.S. today.
Several other individuals similarly complained about the difficulty
in obtaining modifications and urged that the burden be alleviated. One
commenter said that recipients consistently require more than just a
clinical diagnosis of disability. He noted that obtaining other
documents is sometimes very difficult, especially for individuals who
live in rural areas.
Response: We thank commenters for their feedback. We agree with
those who commented on the importance of providing individuals with
disabilities equal access to educational programs and activities. We
also agree that disability should be addressed in the curricula of
postsecondary education programs. The Department currently has a
Medical School Curriculum Initiative in partnership with the
Association of American Medical Colleges.\42\
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\42\ For more information on this initiative, see U.S. Dep't of
Health & Human Servs, Off. for Civil Rts, Medical School Curriculum
Initiative in partnership with the Association of American Medical
Colleges, https://www.hhs.gov/civil-rights/for-individuals/special-topics/health-disparities/medical-school-curriculum-initiative/index.html.
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In addition, the Department has authority to enforce the provisions
in subpart E which ensure that individuals receive equal access to
postsecondary educational programs. We are committed to vigorous
enforcement of those regulations. The Department notes that it proposes
in this final rule to promulgate Sec. 84.68(b)(7), which will be
particularly important for educational institutions as it will require
the provision of reasonable modifications to policies, practices, and
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. Postsecondary educational
institutions must also comply with requirements specific to them
contained in Sec. 84.44, Academic Adjustments. That section requires
postsecondary educational institutions to make modifications to
academic requirements if necessary to ensure nondiscrimination on the
basis of disability. Modifications may include changes in the length of
time permitted for completion of degree requirements, substitution of
specific courses required for the completion of degree requirements,
and adaptation of the manner in which specific courses are conducted.
In response to the concern that recipients consistently require
more than just a clinical diagnosis of disability, we note that Sec.
84.4(d)(1)(vii) says that determining whether an impairment
substantially limits a major life activity usually will require no
scientific, medical, or statistical evidence. The preamble to that
provision in the ADA title II regulations states that ``in most cases,
presentation of such evidence shall not be necessary.'' \43\
Individuals who believe they have been unfairly denied reasonable
modifications and/or academic adjustments can file complaints with OCR.
The procedures for filing complaints are explained in Sec. 84.98.
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\43\ 35 CFR part 84, appendix C.
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Summary of Regulatory Changes
For the reasons set forth above and considering the comments
received, we are finalizing subpart E as proposed with no
modifications.
Subpart F--Health, Welfare, and Social Services
This subpart sets forth the requirements that apply to health,
welfare, and social service providers.
Substance and Alcohol Use Disorders (Sec. 84.53)
Proposed Sec. 84.53 retained the section of the existing
regulation with non-substantive terminology updates. The proposed
version stated that 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.
We invited comment as to whether the application of this 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?
The comments and our responses regarding Sec. 84.53 are set forth
below.
Comment: Multiple commenters, including many disability rights
organizations, responded to our request for comment. The commenters
were uniformly supportive of the extension of coverage of this section
beyond hospitals and outpatient facilities. A few listed specific
health care facilities that should be included but most said that
coverage should be extended to ``all health care facilities.''
Several commenters questioned how the prohibitions in Sec. 84.53
are different from the prohibitions against discrimination in the
medical treatment section, Sec. 84.56. Another commenter was not clear
as to why we said that this section must be read in conjunction with
the illegal drugs provision at Sec. 84.69(b). A few commenters pointed
out a technical error in the text of the proposed rule where insertion
of the phrase ``or individual with an alcohol or substance use
disorder'' makes the sentence confusing.
Response: We thank commenters for their feedback and agree with
their unanimous recommendation that we expand the application of the
section to all health care providers.
There are many settings where individuals seek and receive care
other than hospitals and outpatient facilities. These include
rehabilitation centers, assisted living and residential care
facilities, day treatment programs, home health care services,
telehealth platforms, and specialty clinics. The current opioid crisis
and increase in substance use disorders underscores the necessity for
nondiscriminatory access to a wide range of health care facilities.
The Department believes that health care treatment should be as
inclusive as possible and should not be limited to hospitals and
outpatient facilities. Any health care facility receiving Federal
financial assistance from the Department may not discriminate in
admission or treatment against an individual with an alcohol or
substance use disorder who has a medical condition because of that
alcohol or substance use disorder. In response to a commenter's
question about how this section is different than the nondiscrimination
provisions in the
[[Page 40081]]
medical treatment section, we note that this section provides specific
protections for individuals with substance and alcohol use disorders
but that the general prohibitions against discrimination contained in
the medical treatment section at Sec. 84.56 also apply to that
situation.
With regard to the relationship of this section to the provisions
about illegal use of drugs contained in Sec. 84.69, we note that Sec.
84.69(a) states that ``[e]xcept as provided in paragraph (b) of this
section, this part does not prohibit discrimination against individuals
based on their current illegal use of drugs.'' The exception in
paragraph (b) states that ``a recipient shall not exclude an individual
on the basis of that individual's illegal use of drugs from the
benefits of programs and activities providing health services. . . .''
(emphasis added). The situation described in Sec. 84.53 fits into that
exception since it addresses individuals who are seeking health care
services. Accordingly, recipients cannot deny health services on the
basis of the current illegal use of drugs if the individual is
otherwise entitled to such services.
We note that Sec. Sec. 84.69 and 84.53 differ in two key ways.
First, Sec. 84.53 protects people with both substance use and alcohol
use disorders while Sec. 84.69 only addresses individuals engaging in
illegal use of drugs. Second, Sec. 84.69(b) prohibits exclusion of
individuals currently engaging in illegal use of drugs from health
services and services provided under the Rehabilitation Act while Sec.
84.53 does not address the illegal drugs issue. However, as noted
above, both regulations prohibit the exclusion of individuals currently
engaging in illegal use of drugs from health services although this is
not specifically stated in Sec. 84.53.
Please see the preamble discussion to Sec. 84.69, Illegal Use of
Drugs, for an explanation of how the ADA sections and Rehabilitation
Act sections on illegal drugs differ.
We agree with the commenters' suggestion that the text be clarified
by deleting the phrase ``or individual with alcohol use disorder.'' In
addition, we are making two technical changes--replacing the word
``drug'' with the word ``substance'' and replacing the phrase ``who is
suffering from a medical condition'' to ``who has a medical
condition.''
Summary of Regulatory Changes
For the reasons set forth above and considering comments received,
we are finalizing Sec. 84.53 as proposed with several modifications.
We are replacing the phrase ``operates a general hospital or outpatient
facility'' with the phrase ``operates a health care facility.'' In
addition, we are deleting the phrase ``or individual with an alcohol
use disorder'' the second time it is used, replacing the word ``drug''
with the word ``substance, and replacing the phrase ``suffering from a
medical condition'' to ``has a medical condition.'' The section now
says that ``[a] recipient . . . who operates a health care facility may
not discriminate in admission or treatment against an individual with a
substance or alcohol use disorder who has a medical condition, because
of the person's substance or alcohol use disorder.''
Education of Institutionalized Persons (Sec. 84.54)
Proposed Sec. 84.54 was retained from the existing section 504
regulations with one revision. The existing regulation stated that
recipients must ensure that qualified individuals with disabilities are
provided an appropriate education as defined in Sec. 84.33(b). That
section set forth the requirements for a free appropriate public
education. However, the proposed rule did not contain a Sec. 84.33(b)
as that section had been removed. Accordingly, we proposed to revise
Sec. 84.54 so that it refers instead to the ED section 504 regulations
at 34 CFR 104.33(b). The comments and our responses regarding Sec.
84.54 are set forth below.
Comment: Several disability rights organizations expressed concerns
about the reference to 34 CFR 104.33(b), ED's section 504 regulation,
since that Department has indicated their intent to amend their section
504 regulations. Their comments do not explain their concern; they
simply suggest that the rule not reference a regulation that will be
amended. The commenters proposed alternative language setting forth
requirements for an appropriate education. They also suggested that the
preamble state that this section is to be interpreted consistent with
the requirements of ED's section 504 regulations and the ADA title II
regulations.
Response: We appreciate the commenters' suggestions but decline to
revise the text of the regulation. We note that recipients must comply
with the current version of 34 CFR 104.33(b). If amendments to 34 CFR
104.33(b) are finalized, in whole or in part, following the effective
date of this regulation, then recipients must follow the amended
version in force at that time. The cross-reference to the ED regulation
does not change that requirement. We agree with recipients' assertion
that recipients must comply with both the ED and the ADA title II
regulations.
Summary of Regulatory Changes
For the reasons set forth above, we are finalizing Sec. 84.54 as
proposed without modifications.
Medical Treatment (Sec. 84.56)
Proposed Sec. 84.56(a) proposed a general prohibition against
discrimination to be read in conjunction with the general prohibitions
contained in proposed Sec. 84.68.
Proposed Sec. 84.56(b)(1) provided a non-exhaustive list of
examples of conduct that would violate the section. It stated that 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; (ii) judgments that an individual will be a burden on
others due to their disability; 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.
In Sec. 84.56(b)(2), we proposed to provide that where an
individual with a disability seeks or consents to treatment for a
separately diagnosable symptom or medical condition, a recipient may
not deny or limit clinically appropriate treatment if it would be
offered to a similarly situated individual without an underlying
disability.
The Department invited comment on the best way of articulating
distinctions between underlying disabilities and separately diagnosable
symptoms or medical conditions.
We proposed in Sec. 84.56(b)(3) to provide that a recipient may
not provide 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.
The Department invited comment on other examples of the
discriminatory provision of medical treatment. Proposed Sec. 84.56(c)
articulated a rule of construction setting forth a series of principles
guiding how proposed Sec. 84.56 should be interpreted. We proposed in
Sec. 84.56(c)(1)(i) to provide 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.
[[Page 40082]]
Proposed Sec. 84.56(c)(1)(ii) identified the circumstances when a
recipient typically declines to provide treatment and proposed that the
criteria in paragraphs (b)(1)(i) through (iii) would not be legitimate
nondiscriminatory reasons for denying or limiting medical treatment and
could not be a basis for determining that an individual is not
qualified for treatment or that a treatment is not clinically
appropriate.
The Department invited comment on the examples described in this
section, whether additional examples were needed and on the appropriate
balance between prohibiting discriminatory conduct and ensuring
legitimate professional judgments.
Proposed Sec. 84.56(c)(2) addressed the role of consent in
evaluating obligations under Sec. 84.56. We proposed in Sec.
84.56(c)(2)(i) to make clear that nothing in the section requires a
recipient to provide medical treatment to an individual where the
individual does not consent to the treatment. We proposed in Sec.
84.56(c)(2)(ii) to provide that nothing in the section allows a
recipient to discriminate against a qualified individual with a
disability in seeking to obtain consent.
We proposed in Sec. 84.56(c)(3) to provide that nothing in the
section precludes a recipient from providing an individual with a
disability with information regarding the implications of different
courses of treatment based on current medical knowledge or the best
available objective evidence.
The comments and our responses regarding Sec. 84.56 are set forth
below.
Comments: Commenters expressed broad support for the medical
treatment section, with many expressing particular support for the
general prohibition against discrimination. Many people with
disabilities shared experiences regarding the inappropriate denial of
medical treatment, while many provider organizations expressed
appreciation for the regulatory clarity and respect for professional
judgment in the proposed provision.
Response: The Department appreciates the broad support for this
section. We also thank all of the commenters who took the time to share
their experiences with us.
Comments: Many commenters indicated that further guidance, public
education, and technical assistance activities will be necessary to
promote compliance and awareness of the obligations of the new medical
treatment section. Examples include issuing supporting Frequently Asked
Questions, guidance for health care providers and others on the use of
supported decision-making and other reasonable modifications to support
accessibility and nondiscrimination, guidance on what is and is not a
legitimate, nondiscriminatory reason for denying or limiting a service,
expectations for documentation of legitimate nondiscriminatory reasons,
guidance on how the prohibition on discrimination in medical treatment
interacts with other sections of the regulation, and other topics.
Response: The Department agrees that further efforts may be
necessary to promote awareness of and compliance with the medical
treatment sections of this rulemaking. The Department will consider a
variety of options for such activities after the issuance of the final
rule, including sub-regulatory guidance and technical assistance.
Definition of Medical Treatment
Comments: Multiple commenters suggested the final rule should
include a definition of medical treatment. Many suggested changes to
the description of medical treatment included in the NPRM. Some
commenters suggested the Department include additional types of health
conditions to the description of medical treatment, specifically
suggesting additions such as intellectual, developmental, or behavioral
health conditions to the language ``physical and mental health
conditions'' in the proposed rule. Several commenters asked the
Department to clarify if habilitative services would be covered medical
treatment. Other commenters requested we use a new term entirely that
they believed would better encompass the breadth of treatment, like
``treatment options,'' ``health care services,'' ``comprehensive
medical care,'' ``medical services,'' or ``goods, benefits, or
services.'' Another commenter requested that we clarify that the term
is inclusive of services delivered in the context of clinical research.
Response: The Department has elected not to define the term
``medical treatment'' in the regulation, but instead uses the term in a
generic, nonspecific manner. As stated in the preamble to the proposed
rule, ``medical treatment'' is intended to be broad and inclusive. The
Department interprets medical treatment to encompass habilitative
services and services delivered as part of clinical research. The term
physical or mental health condition in the description of medical
treatment in the proposed rule is sufficiently broad to encompass the
additional, suggested language referenced by the commenters, including
intellectual, developmental, or behavioral health conditions, etc. We
will retain the approach in the proposed rule, giving ``medical
treatment'' its plain meaning, and reiterating that it is intended to
be broad and inclusive.
Notice
Comments: Several commenters requested that the Department require
all forms of medical treatment to include a notice of requirements
under section 504 to familiarize people with disabilities receiving
medical treatment from recipients with recipient obligations and
patient rights pursuant to them.
Response: We decline to make this change. Section 84.8, Notice,
requires all recipients to make available to beneficiaries and other
interested persons information about the provisions of section 504 and
its applicability to the programs or activities of the recipient.
Recipients must take such steps as necessary to apprise individuals of
the protections against discrimination assured them by section 504 and
this part, however we decline at this time to regulate how and when
recipients are required to do that.
Best and Promising Practices
Comments: Several commenters recommended best practices for
addressing disability discrimination, including competency-based
trainings on disability; a mechanism for allowing individuals with
disabilities to appeal medical treatment denials or limitations; a
structured process for requesting a second opinion/professional
consultation; and the availability of a specially trained, independent
review board--with a composition that includes people with a wide range
of disabilities--to consider patient appeals of medical treatment
decisions and report publicly on the outcome of those decisions.
Response: While these ideas are potentially promising practices for
assisting persons with disabilities as they seek health care, the
Department believes it is unnecessary to include these requirements at
this time to ensure compliance with section 504's nondiscrimination
requirement. Recipients may consider them as potential options within a
holistic strategy of providing health care to persons with
disabilities.
Utilization Management Practices
Comment: A medical organization asked the Department to respond to
an example under which ``a drug that slows the progression of visual
impairment is clinically appropriate only if a patient has a minimum
level of visual acuity remaining based on the enrolled populations in
the drug's
[[Page 40083]]
clinical trials,'' leading ``a Medicare Part D plan [to] place a prior
authorization requirement that the patient have that minimum level of
visual acuity for the drug to be covered by the plan.'' They ask the
Department whether such a prior authorization that would only cover the
drug for those with the minimum level of visual acuity would be viewed
as discriminatory under section 504.
Response: As indicated elsewhere within the preamble, prior
authorization and other utilization management activities are covered
by section 504 and Sec. 84.56. However, determining whether a
particular prior authorization or other utilization management decision
by a health plan may violate section 504 is a fact-specific inquiry
that we do not address in this final rule.
Interaction With Medicare
Comment: A medical organization noted their obligation under
Medicare Parts A and B and Medicare Advantage to allow coverage only
for items and services that are ``reasonable and necessary for the
diagnosis or treatment of illness or injury or to improve the
functioning of a malformed body member'' as well as their obligation
under Medicare Part D to require that a drug be for a ``medically
accepted indication.'' They also ask that the Department include
specific regulatory language in the final rule deeming the application
of coverage restrictions in Federal health programs to meet the
proposed rule's standard for being nondiscriminatory and, therefore,
permissible.
Response: As the Department discusses elsewhere with respect to the
interaction of section 504's integration mandate and Medicaid law,
obligations under civil rights laws and program statutes, such as for
Medicare, are separate and distinct. Recipients are not required to
fundamentally alter their programs or activities to comply with section
504. However, recipients may be obligated to make reasonable
modifications to programs or services in order to comply with section
504 even if they are fully in compliance with applicable program
statutes in Federal health programs. As such, the Department has
elected not to modify the regulatory text.
Scope of Sec. 84.56
Comment: One commenter requested that we make clear that the
general prohibitions on discrimination in proposed Sec. 84.68 continue
to apply in the context of medical treatment notwithstanding proposed
Sec. 84.56's more specific provisions on discrimination in medical
treatment.
Response: The general prohibition against discrimination in
proposed Sec. 84.68 continues to apply in the context of medical
treatment. While Sec. 84.56 articulates more specific prohibitions,
this does not preclude the application of Sec. 84.68's more general
requirements to medical treatment or any of the other areas in which
the Department has included more specific regulatory provisions, nor
should the omission of a specific regulatory provision on a particular
topic be construed to suggest that the general prohibition against
discrimination does not apply in that context.
Comments: Several commenters suggested modifying Sec. 84.56(a) to
clarify that its prohibition on discrimination encompasses offering,
failing to offer, or denying a treatment.
Response: The Department agrees that Sec. 84.56(a)'s prohibition
on discrimination on the basis of disability can encompass instances
where a recipient offers, fails to offer, or denies a treatment. Other
provisions within the rule which provide further detail on the
prohibitions within Sec. 84.56(a) explicitly indicate this, such as
Sec. 84.56(b). We believe these prohibitions are covered by the rule
already, and thus decline to change the regulatory text.
Comments: Several commenters asked the Department to clarify how
Sec. 84.56 applies to payers, including Medicaid managed care plans,
Medicare Advantage plans, and other health systems payers receiving
Federal financial assistance.
Response: Section 84.56 applies to all medical treatment provided
by recipients receiving funds from HHS. The application of Sec. 84.56
in such instances will depend on the specific facts and institutional
context of each case.
Comments: Many commenters asked the Department to specifically
clarify other forms of medical treatment that Sec. 84.56 would apply
to, including assisted reproductive technology treatment, suicide
prevention services, mental health services, and others.
Response: As indicated previously, the Department intends Sec.
84.56 to apply in a broad and inclusive fashion to a wide array of
medical treatment services, including assisted reproductive technology
treatment, suicide prevention services, mental health services, and
others. ``Medical treatment'' is used in Sec. 84.56 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, habilitative,
rehabilitative, or palliative. Although it is not possible to provide
an exhaustive list of such services, recipients should interpret the
term medical treatment in the broad and inclusive fashion intended by
the Department.
Comments: Some commenters requested the Department clarify that
Sec. 84.56 applies both to patients with disabilities that predate the
provision of medical treatment in which discrimination occurs, and
patients whose prognosis during that episode of medical treatment
includes disability.
Response: As discussed elsewhere in this rulemaking, the definition
of disability under section 504 is intended to be interpreted in a
broad and inclusive fashion. The definition of disability includes
people with disabilities whose disability predates the provision of
medical treatment in which discrimination occurs. As far as the
question of patients whose prognosis during the episode of medical
treatment includes disability, people with physical or mental
impairments that substantially limit a major life activity, including a
major bodily function, qualify as people with disabilities. As
indicated elsewhere within the rule, ``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. Where a person's prognosis is the result of
impairments in a major bodily function, they would be considered a
person with a disability under section 504. We note also that section
504 protects persons who are ``regarded as'' having such an impairment.
In cases of illness or injury so severe that a person needs a
ventilator and tube feeding, or where a person is regaining
consciousness after brain injury, as raised in comments received on
this issue, although it will be a fact-specific inquiry, the
individuals in these scenarios would almost certainly be covered under
the definition of disability and by the protections from discrimination
on the basis of disability under section 504, including Sec. 84.56.
Comments: Several commenters asked the Department to clarify the
application of Sec. 84.56 to newborn infants.
Response: As indicated within the NPRM, the Department considers
[[Page 40084]]
section 504, including Sec. 84.56, to apply to newborn infants. This
includes the prohibitions against the denial of medical treatment under
Sec. 84.56(b)(1) and (2), and the prohibitions on the discriminatory
provision of medical treatment under Sec. 84.56(b)(3).
Comment: One commenter objected based on its understanding that the
Department's proposed rule would not apply to decisions to withhold
treatment from infants with disabilities in which the disabling
condition is related to the condition to be treated, noting that Sec.
84.56(b)(2) addresses treatment for a separately diagnosable condition
or symptom and not for the underlying disability. The comment concerned
infants with disability conditions such as meningomyelocele,
hydrocephaly, microcephaly, or other anatomical anomalies. The comment
noted that failure to treat these conditions represents discrimination
against a child with a disability.
Response: The Department believes that this comment misconstrues
the section 504 rule. The Department intends that this rule will
generally apply to the provision of medical treatment for infants,
including those seeking treatment for separately diagnosable symptoms
or conditions related to their underlying disability, when medical
treatment is provided to other similarly situated children. For
example, an infant with microcephaly may experience seizures. This
would constitute a separately diagnosable symptom or condition for
which treatment would be subject to the protections of Sec.
84.56(b)(2) despite the fact that the seizures are a symptom of the
infant's microcephaly. As the Department's NPRM made clear, with
respect to separately diagnosable conditions, the rule will not require
that the condition be entirely unrelated to the underlying disability.
``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.'' 88 FR 63405. In addition, Sec. 84.56(b)(1) prohibits
denying or limiting medical treatment to a qualified individual with a
disability based on bias or stereotypes about that patient's
disability, judgments that the individual will be a burden on others
due to their disability, or a belief that the life of a person with a
disability has a lesser value than the life of a person without a
disability or that life with a disability is not worth living. Under
such circumstances, the discrimination described by the commenter would
also be covered under Sec. 84.56(b)(1) even if the condition for which
the patient sought treatment was not a separately diagnosable symptom
or condition from their underlying disability.
Medical Futility
The Department proposed Sec. 84.56(b)(1)(iii) to prohibit
recipients from 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.
Comments: The Department received a broad array of comments from
disability organizations, civil rights organizations, and other
stakeholders supporting this approach. We received stories from people
with disabilities describing their own experiences or those of friends
regarding the denial of life-sustaining treatment and the difficulties
involved in accessing it after such denials. We also received similar
stories from providers. For example, one provider association described
a 25-year-old patient with a developmental disability who had been
referred to an inpatient hospice unit after becoming poorly responsive
with brain imaging demonstrating a shunt and severe abnormalities.
After the provider learned from a family member of a recent sudden
change in the patient's behavior, the patient received a second
opinion, leading to the shunt being surgically revised, the patient's
condition improving, and her enjoying her life for many more years. In
the words of this commenter, the patient's ``referral to hospice
without sufficient exploration of other treatment options was
inappropriate and may have been driven by a mistaken clinical
assumption regarding her baseline quality of life.''
Response: The Department will retain the provision as proposed. We
respond to specific questions regarding the application of this
requirement throughout this section.
Comments: Several commenters requested that the Department provide
an example of the application of Sec. 84.56(b)(1)(iii) to people with
intellectual disabilities.
Response: The Department provided such an example within the NPRM.
We noted an illustrative example in which 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 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).
Comment: A commenter asked for additional clarity regarding the
permissibility of not offering treatment where doing so ``does not
align with the patient's wishes, does not take into account their
overall prognosis, does not consider whether the risks would outweigh
the benefits, or creates a situation where the treatment could cause
more harm than good.''
Response: The commenter raised multiple potential rationales for
denying treatment, each of which has different legal implications under
Sec. 84.56 and section 504 more generally. As the Department indicates
in Sec. 84.56(c)(2), ``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.''
As such, recipients will not be required to provide treatment that does
not align with a patient's expressed wishes or advanced directive.
The permissibility of denial of treatment based on other potential
rationales raised by the commenter are context- and fact-dependent. We
indicate in Sec. 84.56(c)(1)(i) 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. Where a patient's prognosis affects whether
treatment is likely to be effective, it may be permissible to consider
prognosis in determining whether a treatment should be provided.
Similarly, where a treatment is likely to have substantial side effects
that may outweigh the likely benefits to the patient, it may be
permissible to take these into account in determining whether a
treatment should be provided
[[Page 40085]]
as these risks are relevant to whether a treatment is medically
effective. However, consideration of a patient's prognosis may not
include a judgment that the life of a person with a disability is not
worth living or will be a burden on others due to their disability, as
these are prohibited criteria under Sec. 84.56(b)(1)(i) through (iii).
In short, while recipients may take into account potential harms to the
patient, those harms may not include or be based on a belief that the
patient would be better off dead than alive due to their disability.
Comments: In the NPRM, the Department provided an example involving
a patient with Alzheimer's disease, covered as a disability under
section 504, who has developed pneumonia and needs 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 a ventilator, 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. We
indicated that under these circumstances 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 Sec. 84.56(b)(1)(iii).
We received multiple comments specific to this example. Most
commenters, particularly those representing aging and disability
advocacy organizations, praised its inclusion, noting that it addressed
an important issue facing both people with Alzheimer's and those with
other cognitive disabilities, and requesting that it be incorporated
within the final rule. A minority of commenters expressed concern with
the use of Alzheimer's disease and suggested the Department consider
the use of another diagnosis or specify that only ``early and mild''
Alzheimer's is covered in the circumstances described by the
illustrative example.
Response: The example describes the denial of medical treatment due
to the provider's belief that the patient has such poor quality of life
due to their disability that life-sustaining treatment would not be of
benefit to them. This is a denial of treatment based on a belief that
life with the patient's disability is not worth living, a prohibited
basis for a denial of medical treatment under Sec. 84.56(b)(1)(iii)
and not a legitimate nondiscriminatory reason to deny treatment, as
specified under Sec. 84.56(c)(1)(ii). The example also indicates that
this occurs even though the attending physician normally would start
ventilator support for a patient with pneumonia who needs assistance
breathing. We note that if the physician reasonably determines based on
current medical knowledge or the best available objective evidence that
such medical treatment is not clinically appropriate for the patient
due to their Alzheimer's disease, this would not constitute prohibited
discrimination. However, such a determination cannot--consistent with
Sec. 84.56(c)(1)(ii)--be based on a judgment that the patient's life
is not worth living due to their Alzheimer's disease.
We note that the prohibition against denying treatment due to a
judgment that the patient's quality of life would be so low as to make
their life not worth living does not mean that a physician cannot
communicate this concern to the patient or their authorized
representative to inform their decision-making, provided the physician
does not discriminate on the basis of disability in the manner in which
they seek permission to withdraw or encourage the declining of life-
sustaining treatment (such as through pressuring the patient or their
representative). This was why we specified in this example that the
patient's authorized representative had sought medical treatment for
the patient with Alzheimer's disease and that this treatment would have
been provided to a similarly situated person without Alzheimer's
disease.
Comment: Organizations representing older adults and people with
disabilities asked the Department to interpret the permissible
application of medical futility narrowly and indicated that recipients
must explicitly take into account disability accommodations when making
determinations of medical futility. They also ask the Department to
include examples of the consideration of reasonable modifications when
making decisions regarding medical futility.
Response: In the NPRM, the Department noted 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.'' In the
statement, 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.'' \44\
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\44\ 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 a.m. J.
Respiratory & Critical Care Med. 1318 (June 2015).
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The Department considers the former description of medical
futility--``treatments that have no chance of achieving the intended
physiologic goal''--to represent a permissible instance of the denial
of treatment under Sec. 84.56 as a person with a disability for whom a
treatment will not achieve the intended physiologic goal is not a
qualified individual with a disability. In contrast, the denial of
treatment due to ``value judgments about quality of life'' would likely
constitute a prohibited denial of treatment under Sec.
84.56(b)(1)(iii). Where futility is applied based on ``a degree of
prognostic certainty that is often not attainable,'' whether this would
constitute a prohibited denial of treatment would depend on if the
level of prognostic certainty is less rigorous than that which would be
applied to a similarly situated patient without a disability.
The Department agrees with the commenter that recipients must take
into account reasonable modifications required under section 504 when
evaluating whether a given patient with a disability meets this
standard. For example, some clinical protocols have made use of
``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, under which patients
must meet a set
[[Page 40086]]
threshold or trajectory for continued treatment to be deemed non-
futile. However, as the Department previously noted within the NPRM,
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.
Comments: Several commenters asked the Department to clarify that
the ongoing need for assistive technology, attendant care, or other
physical assistance with activities of daily living, mechanical
ventilation, supervision, or other disability support needs does not
constitute sufficient reason to deny a qualified individual with a
disability access to medical treatment. They also seek clarification
that the fact that a person with a disability will not recover to their
pre-treatment baseline is not sufficient basis to deny medical
treatment that would succeed at prolonging a patient's life.
Response: The Department agrees. A recipient generally may not deny
medical treatment to a qualified individual with a disability,
including via a medical futility determination, simply because the
patient will require ongoing support during or after receiving medical
treatment. As indicated in the NPRM, 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. Similarly, the fact that a
patient with a disability may not recover to their pre-treatment
baseline is generally not sufficient basis to justify denying of
medical treatment, including via a medical futility determination.
The Department noted in the NPRM that 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 or on medical equipment or
technology.
Crisis Standards of Care
Comments: The Department received a broad array of comments on the
application of Sec. 84.56 to crisis standards of care.
Many comments asked the Department to confirm the application of
section 504 and Sec. 84.56 to crisis circumstances, provide additional
examples of crisis standards of care obligations within the preamble or
regulatory text, and respond to inquiries regarding the application of
Sec. 84.56 to these contexts.
Response: The Department confirms that section 504 and Sec. 84.56
apply during the planning, development, activation, and implementation
of crisis standards of care.
Comments: Many commenters noted that during the COVID-19 public
health emergency many State crisis standards of care plans included
both categorical exclusions from crisis care on the basis of specific
disabilities and other instances of unfavorable treatment against
people with specific disabilities (such as relative de-prioritization
for scarce critical care resources). These commenters asked the
Department to clarify the obligations of section 504 with respect to
categorical exclusions and other instances of unfavorable treatment on
the basis of specific disability diagnoses (such as cancer, cystic
fibrosis, dementia, or intellectual disability) or on the basis of
functional impairments (such as difficulty with activities of daily
living).
Response: As indicated under Sec. 84.56(b)(2), when a qualified
individual with a disability 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. When a crisis standards of care plan indicates
that patients with specific disabilities will be categorically
excluded, given lower priority, or otherwise will receive unfavorable
treatment when seeking access to critical care resources, this may be a
denial of treatment for a separately diagnosable symptom or medical
condition that would be provided to a similarly situated individual
without an underlying disability. If the patient with a disability is
qualified to receive such treatment, this may constitute a violation of
Sec. 84.56(b)(2). This analysis applies both to unfavorable treatment
on the basis of specific diagnoses and on the basis of functional
impairments that constitute disabilities under section 504.
We discuss here some relevant considerations regarding
qualification to receive treatment in the crisis standards of care
context. Categorical exclusions on the basis of disability in crisis
standards of care are prohibited when treatment would not be futile for
all individuals with that type of disability i.e., that the treatment
has no chance to achieve the intended physiologic goal for all persons
with that particular type of disability. For example, a hospital is
generally prohibited from having a categorical exclusion denying
ventilator treatment to individuals with Down syndrome because
ventilator treatment is not futile for all persons with Down syndrome.
Deprioritization of people with disabilities compared to people without
disabilities and other instances of unfavorable treatment can also
constitute violations of Sec. 84.56, if the disability receiving
unfavorable treatment does not impact short-term mortality. A patient's
disability should not form the basis for decisions regarding the
allocation of scarce treatment for a separate medical condition or
symptom, unless that underlying condition is so severe that it would
prevent the treatment sought from being effective or prevent the
patient from surviving until discharge from the hospital or shortly
thereafter.
We note that there are instances where Sec. 84.56 prohibits
discriminatory treatment in crisis standards of care even where a
patient is not seeking treatment for a separate symptom or condition
but instead seeks treatment for their own underlying disability. For
instance, Sec. 84.56(b)(1) clarifies that
[[Page 40087]]
unfavorable treatment, including categorical exclusions and
deprioritization, 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 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 are
violations of Sec. 84.56 regardless of what type of medical treatment
the patient is seeking.
Comments: Many commenters asked the Department to discuss the
application of section 504 and Sec. 84.56 to instances of denial of
medical treatment on the basis of judgments of long-term life-
expectancy as a result of a patient's disability, a common feature of
many crisis standards of care plans.
Response: As the Department has previously indicated in its
February 2022 guidance, recipients may not deny or give lower priority
to patients with disabilities because of a judgment that their long-
term life expectancy may be lower than an individual without a
disability after treatment.\45\ Section 504 prohibits recipients,
including those implementing crisis standards of care, from imposing or
applying eligibility criteria that screen out or tend to screen out
individuals with disabilities, or any class of individuals with
disabilities, from fully and equally enjoying a program or activity,
unless such criteria can be shown to be necessary for the provision of
the program or activity being offered.\46\ In the context of crisis
standards of care implementation, which is designed to address resource
shortages in a temporary emergency, a patient's likelihood of survival
long after hospital discharge, which may depend upon many factors and
may be difficult to predict, is unlikely to be related to the need to
make allocation decisions about scarce resources on a temporary
basis.\47\ The further in the future a provider forecasts, the less
likely survival has to do with the effectiveness of the medical
intervention in the context of the public health emergency
necessitating crisis standards of care. Judgments about long-term life
expectancy are inherently uncertain and may screen out or tend to
screen out individuals with disabilities from access to care without
being necessary for the safe provision of the health care being
offered. Given these concerns about long-term life expectancy
calculations in the crisis standard of care context, denying or
providing lower priority for access to scarce critical care resources
based on a patient's disability impacting their long-term life
expectancy when such critical care resources would be provided to a
patient without such a disability may also constitute a violation of
Sec. 84.56(b)(2), insofar as it would represent a denial of medical
treatment for a separate symptom or condition that would be provided to
a similarly situated person without a disability. This may also violate
other provisions of the section 504 regulation, including the general
prohibitions against discrimination in Sec. 84.68 and the broad
prohibition against discrimination in medical treatment in Sec.
84.56(a).
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\45\ 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.
\46\ See Sec. 84.68(b)(8); 28 CFR 35.130(b)(8) (DOJ title II
regulation).
\47\ See 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 at question 7.
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Comments: Several commenters urged the Department to clarify that
crisis standards of care protocols that deny, limit, or give lower
priority to people with disabilities in accessing critical care
resources based on anticipated resource utilization could constitute a
violation of section 504 and Sec. 84.56.
Response: The Department agrees that such denials, limitations, or
lower priority for people with disabilities than other persons for
critical care resources based on resource-utilization can constitute a
violation of section 504 and Sec. 84.56. As discussed in the NPRM,
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.\48\
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\48\ 88 FR 63401.
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Comments: Several commenters asked the Department to clarify that
reasonable modifications may be required to assessment tools used to
prioritize patients for access to critical care under crisis standards
of care and to provide examples of such modifications.
Response: The Department has carefully considered the comments
received and as discussed in the NPRM, recipients may be required to
make reasonable modifications to prognostic scoring tools used to
prioritize critical care resources under crisis standards of care, just
as this obligation exists outside of crisis standards of care contexts.
For instance, 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 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.'' \49\ Similar impacts may
exist for other types of disabilities and other prognostic scoring
tools, measures, diagnostic instruments, and
[[Page 40088]]
methodologies for assessment or the allocation of scarce medical
resources.
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\49\ 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 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 typically
assess the inability of a person to articulate words, but it would
likely be discriminatory to use that determination to indicate an
actual mortality risk when assessing a person with cerebral palsy
because that person's pre-existing speech impairments do not imply
mortality risk in the context of the acute care episode the person is
seeking care for. We also note that, in general, mortality risk
screening should be linked to the event that led to the acute care
episode rather than an individual's pre-existing disability.
Organ Transplantation
In the NPRM, the Department noted that organ transplant
discrimination against people with disabilities remains an ongoing
problem. 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. For example, in 2019, OCR resolved a case alleging
discrimination against an individual with Autism Spectrum Disorder, in
which the complainant alleged that a 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 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.
Comments: Many commenters praised the Department for addressing
discrimination against people with disabilities in organ
transplantation and urged the Department to clarify that section 504
and Sec. 84.56 apply to the broad scope of the organ transplantation
process, including the provision of information that transplantation
was an option, referral to a transplant center, evaluation by the
transplant center for clinical eligibility for transplantation,
evaluation for ability to manage post-operative care needs,
prioritization for access to organ transplants, and other aspects of
organ transplantation. They also asked the Department to include
additional information and examples regarding the application of Sec.
84.56 to organ transplant discrimination and to respond to specific
inquiries.
Response: The Department agrees that organ transplant
discrimination against people with disabilities remains an ongoing
problem and that section 504 and Sec. 84.56 apply throughout the organ
transplantation process, including the provision of information,
referrals, evaluation, eligibility, prioritization and other aspects of
the transplantation process. We respond to inquiries and provide
further information on the application of Sec. 84.56, including
illustrative examples, throughout this subsection.
Comments: Many commenters highlighted discrimination against people
with disabilities, particularly people with developmental disabilities,
seeking access to organ transplantation on the grounds that they would
not be able to manage their post-operative care needs. These commenters
asked the Department to indicate that evaluation for suitability of
transplantation must be done taking into account modifications the
patient with a disability may use to manage their post-operative care
regimen, including both formal and informal supports. A commenter also
asked the Department to indicate that denying a person with a
developmental disability, such as intellectual disability or autism,
access to organ transplantation because the recipient believes the
person with a disability would not be able to maintain the strict
regimen necessary to avoid organ rejection would constitute a violation
of Sec. 84.56(b)(1), which prohibits denial of medical treatment based
on biases or stereotypes on the basis of a person's disability. Another
commenter described a patient with a disability being denied access to
transplantation due to concerns on the part of the transplant center
that their supporter also had a disability and would not be able to
provide the patient with adequate assistance after their operation due
to the supporter's disability.
Response: The Department agrees that denying a person with a
developmental disability access to organ transplantation because the
recipient believes the person with a disability would not be able to
manage their post-operative care needs may violate Sec. 84.56(b) if
this assessment did not take into account modifications the patient may
make use of, such as reliance on formal and informal care and other
supports. Such a denial could constitute a violation of Sec.
84.56(b)(1), if motivated based on biases or stereotypes about the
patient's disability. However, even where this denial is not the result
of biases or stereotypes regarding a patient's disability, it may be
prohibited by other provisions of this rule. For example, a transplant
center that conducts an individualized evaluation of a patient with a
developmental disability and concludes they would be unable to manage
their post-operative care needs independently may not have done so as a
result of biases or stereotypes. However, by not considering within
their evaluation the patient's ability to manage their post-operative
care needs with support from family, service-providers or others in the
patient's circle of support, a recipient may violate Sec. 84.68(b)(7),
which requires reasonable modifications to policies, practices and
procedures for people with disabilities, and Sec. 84.56(b)(2), as
evaluating whether a person with a disability is qualified to receive a
transplant and/or similarly situated to a person without a disability
who would receive an organ transplantation must be done taking into
account the reasonable modifications the patient with a disability may
utilize in order to meet qualification standards.
Clinical Research
Clinical research participation can offer considerable benefit to
both the individuals participating 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. The
unnecessary exclusion of people with disabilities from clinical
research harms those who
[[Page 40089]]
are denied the direct benefits of research participation. It also
threatens the generalizability of research findings and potentially the
reach of subsequent medical innovations for those groups who are
excluded.
Recent research has documented that people with disabilities face
systemic and unnecessary exclusion from clinical research.\50\ Although
study exclusions and other restrictions in eligibility criteria can be
justifiable in appropriate cases based on the nature of the clinical
research being conducted, they 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. It also may be the result of overly narrow eligibility
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 eligibility 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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\50\ 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 narrow eligibility criteria that unnecessarily
screen out people with disabilities 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 or make reasonable
modifications for people with disabilities.
Many commenters appreciated the specific application of section
504, including Sec. 84.56, to clinical research activities in the
proposed rule, and asked the Department to provide further examples and
respond to queries regarding the application of section 504, including
but not limited to Sec. 84.56, to clinical research. Some commenters
provided specific examples of discrimination on the basis of disability
in clinical trials, including on the basis of leukemia, multiple
sclerosis, HIV, obesity, muscular dystrophy and other neuromuscular
diseases as well as other diagnoses. Many examples focused on the
negative consequences of being denied access to clinical research on
those people with disabilities turned away.
Other commenters focused on the adverse implications on society as
a whole of excluding people with disabilities from clinical research.
For instance, some commenters noted the impact of clinical research in
value assessment activities that inform payer activities regarding
utilization management and the coverage of particular medical
interventions for specific patient populations. (We further discuss the
intersection of clinical trial exclusions on the basis of disability
and utilization management decisions by payers elsewhere within this
subsection.) Others noted that the exclusion of people with
disabilities from clinical research may contribute to a lack of
information on differences in the efficacy, effectiveness, and side
effects profiles of medical interventions being studied.
Response: As indicated elsewhere in this section, the Department
considers Sec. 84.56 to apply to clinical research activities of
recipients. The provision of Sec. 84.56 that is most likely to be
relevant to clinical research is Sec. 84.56(b)(2), which prohibits
denying or limiting treatment for a separately diagnosable symptom or
medical condition if it would be offered to a similarly situated
individual without an underlying disability. In addition, section 504
regulations include other provisions that apply to clinical research
activities. For example, 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. However, the
Department notes that application of each of these provisions is fact-
dependent. As the Department noted within the NPRM, the use of
eligibility criteria that screen out or tend to screen out people with
disabilities from clinical research can constitute a violation of this
provision.
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. 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 with
diabetes-related visual impairments would be medically contraindicated
from making use of the intervention. Potential study participants with
any form of visual impairment are excluded, even if their blindness is
not indicative of a stage of diabetes disease progression that would
preclude treatment effectiveness. Prohibiting a qualified individual
with a disability from participating in a clinical research program
based on a broad-based categorical judgments related to a disability
likely violates section 504, where such categorical exclusion criteria
are not necessary for the implementation of the study, as doing so
screens out individuals with disabilities from participating in a
program of clinical research and is not necessary for the operation of
the research program. In contrast, a researcher in similar
circumstances who excludes only patients with diabetes-related visual
impairments that are likely to impact eligibility for the study because
of the clinical appropriateness of receiving the treatment being
studied is not likely to be unnecessarily screening out individuals
with disabilities, as excluded patients are only those who are
medically contraindicated for the treatment. In addition, the
obligation articulated in Sec. 84.68(b)(7) to make reasonable
modifications to policies, practices, or procedures when necessary to
avoid discrimination unless the modification would fundamentally alter
the nature of the program or activity at issue also applies to clinical
research.
In some instances, excluding people with disabilities from clinical
research may implicate further provisions of the section 504
regulations. For example, a researcher who prohibits patients with
cognitive disabilities from participating in a research study regarding
cancer treatment based on a belief that they would not be able to
provide informed consent could violate Sec. 84.56(b)(1)(i), as it
constitutes a denial of medical treatment to a qualified individual
with a disability based on stereotypes regarding a patient's
disability, Sec. 84.56(b)(2), as it constitutes a denial of treatment
for a separate symptom or condition that would be offered to a
similarly situated person without a disability, and Sec. 84.68(b)(7)
as concerns about informed consent could be
[[Page 40090]]
addressed through a reasonable modification permitting the prospective
study participant with an intellectual disability to use supported
decision-making by bringing a friend or family member to help study
staff explain the study risks and benefits to them.
Comments: One comment from an academic research center focused on
clinical trials requested the Department replace the phrase ``exclusion
criteria'' for ``eligibility criteria'' as the exclusion of people with
disabilities from clinical research may take place both through
explicit exclusion criteria and through overly narrow inclusion
criteria or other components of a study protocol that result in the
unnecessary exclusion of people with disabilities. They ask the
Department to clarify that the obligations of section 504 apply to the
broad scope of a study protocol and clinical research activities, not
just exclusion criteria. Another commenter noted that people with
disabilities are often excluded from clinical trials due to the use of
clinical end points that are consistent with prior research studies but
not necessary for the program of clinical research currently being
undertaken.
Response: The Department agrees that the unjustified exclusion of
people with disabilities from clinical research can take place through
explicit exclusion criteria, overly narrow inclusion criteria, and
through other aspects of a study protocol or clinical research
activities that unnecessarily screen out people with disabilities. We
have revised the preamble language throughout to clarify this point and
include other information on potential ways in which section 504
applies to clinical research.
Comment: Another commenter requested that the Department require
organizations conducting clinical research and the Food and Drug
Administration (FDA) show the exclusion of individuals with
disabilities within the study population is necessary for the success
of the study and not simply a continuation of a previous practice
chosen for simplicity.
Response: As indicated above, section 504 regulations require
eligibility criteria to not screen out or tend to screen out people
with disabilities from a clinical research program unless the criteria
can be shown to be necessary for the provision of the program or
activity being offered. Section 84.56 operationalizes this through
multiple specific prohibitions, which we have articulated above. If
recipients specifically exclude populations of persons with
disabilities from their clinical research, they should articulate clear
rationales for those populations of people with disabilities who are
excluded to ensure that such exclusions are necessary for the provision
of the program or activity of clinical research being conducted.
Comment: A commenter described a scenario in which a patient was
denied access to a clinical trial for a mental health treatment they
were otherwise qualified for because the program required periodic
imaging and the imaging equipment affiliated with the program had a low
weight capacity that could not accommodate the patient's obesity. They
sought and were denied a reasonable modification of using other imaging
equipment available to the medical center that was not typically
utilized in the clinical trial. They asked how section 504 would apply
to this situation.
Response: Whether the scenario described by the commenter
constitutes a violation of section 504 is fact-dependent.\51\ Sections
of the rule that would need to be considered would include Sec.
84.56(b)(2), as the patient was seeking treatment for a separate
medical symptom or condition and was denied it when it would have been
provided to a similarly situated patient without a disability, and
Sec. 84.68(b)(7), which requires reasonable modifications for people
with disabilities. Recipients conducting clinical trials have an
obligation to make reasonable modifications for people with
disabilities, including using available accessible equipment elsewhere
within a facility, unless they would constitute a fundamental
alteration of the program or activity being offered. As indicated
within the NPRM, the exclusion of people with disabilities from
clinical research may also constitute a violation of Sec. 84.68(b)(8),
which 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.
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\51\ We encourage any person who believes they or another party
has been discriminated against on the basis of race, color, national
origin, sex, age, or disability, to visit the OCR complaint portal
to file a complaint online at: https://www.hhs.gov/civil-rights/filing-a-complaint/index.html.
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Comment: Some commenters asked the Department to clarify that
unnecessarily excluding people with disabilities from clinical research
not related to their disability may constitute discrimination.
Response: The Department agrees that section 504 applies to
clinical research both relating to a patient's disability and not
related to a patient's disability.
Comment: Several commenters asked OCR to consider issuing sub-
regulatory guidance in collaboration with other parts of the Federal
Government, including the National Institutes of Health and the FDA,
regarding the application of section 504 to clinical research
activities.
Response: The Department will consider issuing guidance and
providing technical assistance regarding the application of section 504
to clinical research in the future.
Examples Regarding Sec. 84.56(b)(1)
Many commenters requested the Department add additional prohibited
rationales for discrimination to the regulatory text of Sec.
84.56(b)(1), which provides a non-exhaustive list of prohibited
rationales for denying or limiting medical treatment to a qualified
individual with a disability and applies broadly (regardless of whether
a patient is seeking treatment for their underlying disability or for a
separate symptom or condition). The Department responds to these
requests and for other clarifications regarding the application of
Sec. 84.56(b)(1) in this subsection.
Comment: One commenter requested that the Department add to Sec.
84.56(b)(1) language prohibiting denying or limiting medical treatment
to a qualified individual with a disability based on a belief that
providing care for a patient with a disability would constitute a
suboptimal use of recipient resources, unless the same judgment would
be made about a patient who did not have a disability.
Response: The Department agrees that a denial or limitation of
treatment based on a belief that providing care for a patient with a
disability would constitute a suboptimal use of recipient resources,
where the same judgment would not be made about a similarly situated
patient who did not have a disability, would likely be prohibited
discrimination under Sec. 84.56. However, the Department believes that
this conduct is already addressed under Sec. 84.56(a) and other
sections of Sec. 84.56. Where the treatment being sought is for a
separate medical symptom or condition, it is prohibited under Sec.
84.56(b)(2). Such action would likely also be prohibited under Sec.
84.56(b)(1)(iii), which prohibits discrimination based on 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.
[[Page 40091]]
Comment: Several commenters requested that the Department clarify
that Sec. 84.56(b)(1)(i) extends to the denial or limitation of
medical treatment based on biases and stereotypes regarding particular
medical treatments for a disability because such biases and stereotypes
originate with beliefs about a patient's disability.
Response: The Department agrees that biases and stereotypes
regarding particular medical treatments can constitute biases and
stereotypes regarding the disability of the patients that receive them.
For example, biases and stereotypes regarding antiretroviral therapy
may constitute discrimination against persons with HIV. Similarly,
biases and stereotypes regarding Medication Assisted Treatment for
Opioid Use Disorders could constitute discrimination against persons
with Opioid Use Disorders.
Comment: Several commenters requested that the Department add to
the regulatory text of Sec. 84.56(b)(1) language prohibiting denying
or limiting medical treatment to a qualified individual with a
disability based on whether a patient has an advance directive.
Response: Where a recipient denies medical treatment to persons
with disabilities because they do not have an advance directive, but
does not do so for persons without disabilities who do not have an
advance directive, such a denial or limitation would likely violate the
general prohibition on discrimination on the basis of disability in
Sec. 84.56(a) and may also constitute prohibited discrimination under
Sec. 84.56(c)(2)(ii), which prohibits discrimination 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. We made this point explicitly in several examples in the
NPRM, where we indicated that 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, we noted that 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. As such, we
believe the circumstances described by the commenter are already
prohibited by the regulation and have elected not to modify the
regulatory text of Sec. 84.56(b)(1).
Comment: Several commenters asked the Department to clarify that
prohibited discrimination under Sec. 84.56(b)(1)(i) could emerge both
from biases and stereotypes regarding a single disability diagnosis
possessed by the patient or from the interaction of multiple diagnoses
and perceived complexity of these diagnoses.
Response: The Department agrees that the phrase ``a patient's
disability'' under Sec. 84.56(b)(1)(i) describes both biases and
stereotypes about a single disability diagnosis as well as biases and
stereotypes about multiple disabilities.
Comment: Several commenters requested the Department include
examples of denials or limitations due to fears about one's own health
due to the treatment of the person with the disability as instances of
prohibited discrimination under Sec. 84.56(b)(1).
Response: The Department agrees that unfounded fears about one's
own health due to the treatment of the person with the disability are
already prohibited as biases or stereotypes about a patient's
disability under Sec. 84.56(b)(1)(i). Where such fears have a
reasonable basis in fact, a recipient would only be permitted to deny
or limit access to a program or service they offer if they meet the
threshold for a direct threat articulated under Sec. 84.75 (see that
section for a more detailed discussion).
Comment: Several commenters requested the Department clarify that a
refusal to provide a referral on the basis of disability status,
including based on the factors articulated in Sec. 84.56(b)(1), could
constitute prohibited discrimination under Sec. 84.56.
Response: The Department agrees that a refusal to provide a
referral to a qualified individual with a disability could constitute
prohibited discrimination, as such a refusal would be a limitation on
the medical treatment provided to a qualified individual with a
disability. The Department previously noted within the NPRM that when a
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 Sec. 84.56.
Comment: Several commenters asked the Department to use the term
``individual'' rather than ``patient'' to clarify the broad application
of Sec. 84.56, as certain things that the Department has clarified are
considered medical treatment under Sec. 84.56 generally do not involve
referring to consumers of services as ``patients.''
Response: While the Department has elected to retain the current
regulatory text, we clarify here that the term ``patient'' is intended
to be interpreted broadly to refer to any individual with a disability
that seeks to access services included under the definition of medical
treatment. We use the term ``patient'' and ``individual''
interchangeably throughout the final rule.
Comment: Several commenters requested that the Department clarify
that the application of Sec. 84.56(b)(1)(iii), which prohibits denying
or limiting medical treatment to a qualified individual with a
disability when the denial is based on ``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,'' includes denials or limitations based on assumptions about a
person with a disability's quality of life, as that terminology is more
commonly used by health care providers.
Response: The Department agrees that treatment denials or
limitations to qualified individuals with disabilities based on a
provider's belief that a person with a disability's quality of life is
such that their life is not worth living due to their disability would
constitute a violation of Sec. 84.56(b)(1)(iii). We do note, however,
that people with disabilities retain their right to decline treatment
for any reason and recipients that do not provide treatment declined by
the person with a disability are not in violation of this section,
provided that the acquisition of consent to decline such treatment was
not acquired in a discriminatory fashion (as we discuss in Sec.
84.56(c)(2)(ii)).
Comment: A commenter requested the Department clarify that Sec.
84.56(b)(1) includes an additional instance of prohibited
discrimination in the regulatory text, stating that discrimination is
also prohibited on the basis of a belief that the extra accommodation,
expense, or time required for treatment related to the individual's
disability is not justified.
Response: The example cited by the commenter is covered by the
existing regulatory text, as Sec. 84.56(b)(1)(ii) clarifies that
discrimination on the basis of judgments that an individual will be a
burden on others due to their disability, including, but not limited to
caregivers, family, or society are prohibited under section 504.
Denying an extra accommodation, expense, or time required for treatment
related to a person's disability because of the belief that the
individual will be a burden to society would be covered as an instance
[[Page 40092]]
of discrimination based on a judgment that an individual will be a
burden on others due to their disability, as the additional
accommodation, expense, or time required for treatment related to a
person's disability constitutes an example of burden on others.
For example, a recipient that denies surgery to a person with a
mobility disability that would typically be provided to a person
without a mobility disability based on a belief that the additional
expense required to accommodate a person with such a disability in
ongoing medical treatment after their surgery would constitute a burden
on the medical system as a whole would likely be in violation of Sec.
84.56(b)(1)(ii). Similarly, the Department has previously indicated
within the NPRM that 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.
Comment: Several commenters requested that the Department clarify
that denials or limitations of medical treatment that are seemingly
based on nondiscriminatory rationales, but where evidence demonstrates
they are actually motivated by discriminatory rationales, are
prohibited under Sec. 84.56.
Response: Proving the discriminatory intent of a recipient where a
recipient offers a nondiscriminatory rationale is a fact-dependent
proposition and requires nuanced judgment. Where a recipient offers a
nondiscriminatory rationale for denying medical treatment, but that
rationale is inconsistent with the evidence in the specific case, it
may constitute discrimination under Sec. 84.56.
Comment: Many commenters asked the Department to clarify that the
prohibitions listed under Sec. 84.56(b), including Sec. 84.56(b)(1),
are not exhaustive and that other instances of prohibited
discrimination are encompassed under Sec. 84.56(a).
Response: The Department agrees that the prohibitions listed under
Sec. 84.56(b), including Sec. 84.56(b)(1), are not exhaustive and
that other instances of prohibited discrimination are encompassed under
Sec. 84.56(a).
Separately Diagnosable Symptom or Medical Condition
As indicated within the NPRM, in order to align with what we
believe to be the correct reading of the statute and the case law, the
Department adopted distinct standards for circumstances under which a
qualified person with a disability is denied medical treatment for the
disability that triggers coverage under section 504 (referred to as an
``underlying disability'') or for a separately diagnosable symptom or
condition for which the patient seeks treatment. As the general
prohibition against discrimination against people with disabilities
seeking medical treatment in Sec. 84.56(a) applies broadly to both
such instances, we provide specific examples of some of the instances
of prohibited discrimination that do not require a separately
diagnosable symptom or condition in Sec. 84.56(b)(1), including biases
or stereotypes about a patient's disability, judgments that the
individual will be a burden on others due to their disability, and a
belief that the life of a person with a disability has lesser value or
that life with a disability is not worth living. While this is not an
exhaustive list, we believe it provides a useful illustration of the
types of discrimination that are prohibited regardless of whether a
person with a disability is seeking medical treatment for the
underlying disability that triggers coverage under section 504 or for a
separately diagnosable symptom or condition.
In Sec. 84.56(b)(2), the Department prohibits denying or limiting
clinically appropriate 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) if it would be offered to a similarly situated
individual without an underlying disability. Examples of circumstances
in which such denials could occur include when 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.
Instances of discrimination against people with disabilities in
medical treatment contexts may violate multiple paragraphs of Sec.
84.56, including paragraphs (b)(1) and (2). For example, should a
recipient deny a referral for a medically indicated heart transplant to
a patient with a mental health condition because of a biased belief
that persons with mental health disabilities represent a danger to
society and should thus not be permitted to access scarce medical
resources, this would likely constitute a violation of both provisions.
Because the recipient has denied access to medically indicated
treatment based on biases or stereotypes about a patient's disability,
they have likely violated Sec. 84.56(b)(1), and because this treatment
was for a separately diagnosable symptom or medical condition and would
have been provided to a similarly situated person without
schizophrenia, it likely constitutes a violation of Sec. 84.56(b)(2).
The Department solicited comments on the distinction between a
separately diagnosable symptom or condition and the underlying
disability, noting that this line may be more difficult to draw than in
these examples, and welcomed comment on the best way to clarify this
distinction. Commenters expressed a variety of perspectives on this
distinction.
Some commenters questioned the choice to have two provisions both
relating to the denial of medical treatment, suggesting that doing so
could create unnecessary challenges for recipients and people with
disabilities. Some commenters argued that attempts to distinguish
between treatment for an underlying disability as opposed to for a
separate condition is not the best or appropriate means of eliminating
discrimination because a symptom or condition may not always be readily
distinguishable from the underlying condition, particularly for persons
with complex medical conditions that interact with each other and who
are receiving medical treatment that is responsive to multiple
different diagnoses, symptoms, or conditions. They suggested that the
Department either avoid making this distinction or clarify it through
future sub-regulatory guidance. Similarly, some commenters pointed out
that separately diagnosable symptoms or medical conditions are not
always readily distinguishable from underlying conditions. They
expressed concern that disentangling different diagnoses from one
another is at times impossible and often inadvisable, as the
distinction between different diagnoses is often blurred in the
clinical context and within the experiences of people with
disabilities. Some felt that having two standards could lead to
confusion and perhaps unnecessary litigation. Other commenters felt
that the distinction made by the Department was appropriate and
workable in order to both comply with applicable case law and protect
people with disabilities from discrimination on the basis of disability
in medical treatment. These commenters indicated that they did not
believe that further efforts to distinguish between or define the
different circumstances articulated between paragraphs (b)(1) and (2)
of Sec. 84.56 were necessary or useful.
[[Page 40093]]
Independent of their views on the distinction drawn by the
Department in Sec. 84.56(b)(2), many commenters provided examples of
situations where individuals with underlying disabilities were denied
treatment for separately diagnosable symptoms or conditions. They
described denials of all types of treatment to individuals with mental
health disorders, noting that some drug and alcohol treatment centers
have a blanket policy of denying admission to individuals with mental
health disabilities as well as to individuals with developmental
disabilities. They also pointed to mental health facilities that
routinely deny treatment to individuals with substance use disorders.
Other examples included denial of routine eye exams, colonoscopies,
braces and other dental services, mental health treatment, and surgical
services to individuals with developmental disabilities, including
intellectual disability and autistic persons. One individual described
the failure of physicians to perform hip dysplasia surgery on her
brother who had Down syndrome. Another described her child being
refused treatment for a broken bone because he had cerebral palsy.
Others described the denial of preventative screening for sexually
transmitted diseases, the failure to provide information on
reproductive health options, and the failure to provide care for life
threatening diseases on the basis of disability.
Response: After careful consideration, the Department has elected
to maintain the distinction between paragraphs (b)(1) and (2) Sec.
84.56, recognizing that applicable case law is most appropriately
interpreted as requiring a different legal standard for circumstances
where a person with a disability is seeking treatment for their
underlying disability as compared to when they seek treatment for a
separately diagnosable symptom or condition.\52\
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\52\ The NPRM included a discussion of the case law concerning
medical treatment decisions when the medical treatment may have been
associated with the patient's disabling condition. See 88 FR 63403
(Sept. 14, 2023).
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The Department notes and appreciates the concerns raised by
commenters who argue that distinguishing between an underlying
disability and a separate symptom or medical condition may be very
difficult for persons with complex medical conditions that interact
with each other and who are receiving medical treatment that is
responsive to multiple different diagnoses, symptoms or conditions. As
such, we wish to clarify that the definition of a separately
diagnosable symptom or condition should be interpreted in a broad and
inclusive fashion. Patients who are receiving medical treatment that is
at least in part due to a separately diagnosable symptom or condition
qualify for the protections of Sec. 84.56(b)(2), even if their medical
treatment is also responsive to their underlying disability. For
instance, a patient with both opioid use disorder and depression who
seeks mental health treatment may seek counseling from a provider that
will take into account both of these diagnoses. Should the provider
discriminate against this patient as a result of their diagnosis of
opioid use disorder, this would implicate the protections of Sec.
84.56(b)(2) as depression constitutes a separately diagnosable symptom
or condition, despite the fact that the treatment sought would likely
have taken into account and sought to treat both of the patient's
diagnoses.
We reiterate that this provision does not require the separately
diagnosable symptom or medical condition to 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. For
example, 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. 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. As we indicated within the NPRM, it does not
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 the patient has the underlying disability of Down syndrome, or
a refusal to treat depression because of a patient's underlying spinal
cord injury, will likely violate this paragraph if treatment would be
provided to a similarly situated person without an underlying
disability.
We note also that it does not matter whether the symptom or
condition for which the individual is seeking treatment is also a
disability under section 504. Individuals with heart conditions, COVID-
19, and depression could all meet the definition of an individual with
a disability on the basis of these conditions in appropriate
circumstances, but it is people who experience discriminatory treatment
for these conditions based on an underlying disability who are entitled
to the protections of Sec. 84.56(b)(2).
Comment: Some commenters expressed that the prohibition against
denying a person with a disability treatment for a separate symptom or
condition does not adequately consider the complexity of caring for
someone living with disability who also has multiple chronic conditions
or from tailoring treatment plans to align to the patient's wishes in
the interests of avoiding unnecessary suffering. One commenter put
forward the example of someone who has diabetes, kidney disease, AFib,
and osteoarthritis that has led to their using a walker or other
assistive device who suffers from kidney failure. They indicate their
view that ``the appropriate first step would be to engage in
discussions about what matters to the individual and their overall
prognosis based on the totality of their disease burden. In instances
where they lack capacity and there is no proxy, the case should be
referred to an Ethics Committee or other decision-making body as
organized by the health system where the patient is receiving care.''
Another commenter also expressed concern regarding patients who are
incapacitated and lack advance directives. A pharmaceutical industry
group requested that the Department provide additional guidance as to
the definition of ``similarly situated'' in Sec. 84.56(b)(2). They ask
that the Department clarify if an individual would be considered
``similarly situated'' to another individual with the same symptom or
condition if treatment for that symptom or condition is not clinically
appropriate for individuals with a certain disability or a symptom or
condition that is causally connected to that disability.
Response: Determining whether a denial of treatment would
constitute a violation of Sec. 84.56(b)(2) is a fact
[[Page 40094]]
specific, individualized inquiry. Section 84.56(c)(1) 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, 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. However, this section
also makes clear that the criteria articulated in Sec. 84.56(b)(1),
including a judgment that a patient's life with a disability is not
worth living, is not a legitimate nondiscriminatory reason for denying
or limiting treatment and cannot render a person with a disability not
qualified for treatment.
As discussed elsewhere within this section, determinations that an
individual with a disability's life is not worth living because of the
need for ongoing support rest on judgments that do not properly relate
to the individual's qualification for medical treatment under section
504. Similarly, an individual cannot be deemed not similarly situated
because they require ongoing support during or after treatment that
another individual does not need. 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. In the example cited by the commenter, while the patient or
their authorized representative may make a decision to decline
treatment, a decision by the recipient--including where such a decision
is made via an Ethics Committee--to deny medically indicated treatment
based on the patient's disabilities of diabetes, kidney disease, AFib,
and osteoarthritis or their use of assistive technology would likely
constitute discrimination on the basis of disability if it was
motivated based on a belief that continued life would not be of benefit
to the patient due to their disabilities (i.e., that life with their
disability is not worth living).
In contrast, should a decision be made to deny treatment due to a
patient's expressed wishes or those of their authorized representative,
this would likely not constitute discrimination, provided that the
recipient has not discriminated on the basis of disability in seeking
consent to decline further treatment. Similarly, a decision to deny
treatment because it would not be medically effective at prolonging the
patient's life would not be in violation of this section, even if it
was sought after by the patient or their authorized representative, as
a patient for whom a treatment would not be medically effective is not
similarly situated to a patient for whom a treatment would be medically
effective.
Comments: Many commenters raised the issue of diagnostic
overshadowing, in which physicians and other health care professionals
attribute medical problems to a patient's underlying disability when
they actually relate to a separate medical condition, resulting in
underdiagnosis and a failure to diagnose or appropriately treat the
separate condition. They ask the Department to clarify that diagnostic
overshadowing can constitute a violation of Sec. 84.56(b)(2) or other
parts of Sec. 84.56 when recipients depart from the standard of care
by attributing all problems or symptoms of a patient with a disability
to one diagnosis.
Response: Departures from the standard of care by attributing all
problems or symptoms experienced by a patient with a disability to a
single diagnosis could constitute discrimination under Sec.
84.56(b)(2) under some circumstances. In the event that such diagnostic
overshadowing is the result of biases and stereotypes, it could also
violate Sec. 84.56(b)(1)(i). Determining whether any individual
instance rises to the level of discrimination is fact-dependent and
will depend on the specific circumstances of a provider's behavior and
the information available to them.
Comments: Many commenters described medical care providers, in
particular mental health treatment providers, who refuse to serve
patients with disabilities with comorbidities. They offer as an example
drug and alcohol treatment centers that deny services to individuals
with mental illness and mental illness providers that refuse to serve
those with a history of drug or alcohol use disorders. The commenters
ask for clarification if this might constitute discrimination under
Sec. 84.56(b)(2).
Response: A blanket prohibition on serving persons with co-
occurring disabilities may constitute a violation of Sec. 84.56(b)(2).
Recipients should generally seek to ascertain whether patients with co-
occurring disabilities are qualified for the purposes of the program or
service in question through an individualized determination.
Determining whether any specific policy or denial rises to the level of
discrimination is fact-dependent and will depend on the specific
circumstances of a provider's policies and behavior.
Provision of Medical Treatment
Section 84.56(b)(3) proposed to address 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--then 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 likely violated Sec. 84.56(b)(3) if the provider
prescribes contraception for her other patients without disabilities.
However, Sec. 84.56(b)(3) does not prohibit a recipient from providing
an individual with an underlying disability services or equipment 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 likely
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.
Similarly, 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 likely 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
[[Page 40095]]
directly inhibit the utility of the generally more effective drug, the
individual would likely not be qualified for that treatment under this
part.
Comments: A group of commenters representing persons with
disabilities and various civil rights groups said that our example of
involuntary sterilization is too narrow. They suggested that the
Department make clear that the prohibition in Sec. 84.56(b)(3) extends
to any procedures whose expected and actual effect is sterilization.
They recommended including situations where individuals with
disabilities are pressured to use contraceptives, particularly long-
acting forms, that they do not want. A significant number of commenters
said that individuals with disabilities must be offered comprehensive
and non-coercive contraceptive counseling about all contraceptive
options, consistent with that which is offered to individuals without
disabilities. These commenters recommended that individuals with
disabilities also be offered comprehensive and non-coercive access to
assistive reproductive technology and other fertility treatments. Many
commenters said that individuals with disabilities must be able to
decide if when or how to become parents.
Multiple commenters raised questions regarding the application of
Sec. 84.56 to reproductive health services. Many commenters described
experiences of discrimination in accessing reproductive health care,
both through the denial of treatment and through the provision of or
pressure to accept inappropriate or unwanted treatment on the basis of
disability. Many commenters indicated greater difficulty getting access
to screening for sexually transmitted infections, mammograms, and other
necessary preventative health screenings relating to reproductive
health as a result of their disabilities. Other commenters reported
pressure to accept sterilization or abortion as a result of their
disabilities.
Response: The Department agrees that the listed examples could
constitute violations of Sec. 84.56(b)(3). For instance, requiring a
patient with an intellectual disability to accept long-acting
contraception, sterilization, or abortion as a result of their
disability would likely constitute a violation of Sec. 84.56(b)(3), if
such a requirement would not be imposed on patients without
disabilities. The Department notes that the discriminatory denial of
these same treatments on the basis of a patient's disability could
constitute a denial of Sec. 84.56(b)(2), reinforcing the importance of
understanding the preferences of patients with disabilities and being
responsive to them, consistent with established norms for patient care
for patients without disabilities. As discussed elsewhere, the
Department's investigations of specific complaints regarding violations
of Sec. 84.56 will be fact-dependent.
We agree that Sec. 84.56(b)(3) would likely be violated when a
procedure has an expected and actual effect of sterilization and the
circumstances otherwise fit the language of paragraph (b)(3). This
could include pressuring individuals to use unwanted contraception,
particularly long-acting forms of contraception, which would also
likely represent a violation of the broad based prohibition against
discrimination articulated in Sec. 84.56(a).
Failure to provide comprehensive information about and access to
all forms of contraception and failure to provide comprehensive
information and access to assistive reproduction technology and other
treatments related to infertility to qualified persons with
disabilities by a recipient that provides such treatment would likely
violate Sec. 84.56(a) or (b)(2) if the recipient provides or would
provide the same information and access to an individual without a
disability. Denial or limitation of treatment or accompanying
comprehensive information (which we consider to be part of the broad
service of medical treatment) based on disability by a recipient that
provides such treatment would likely constitute a violation of the
general nondiscrimination in medical treatment requirement in Sec.
84.56(a) as well as Sec. 84.56(b)(2) which prohibits denials or
limitations of treatment for a symptom or condition such as infertility
that is separately diagnosable from the underlying disability
motivating different treatment. For example, should a patient with an
intellectual disability not be informed of the availability of
infertility treatment when such information would be provided to a
patient without an intellectual disability seeking treatment for
infertility, this may constitute a violation of these provisions. We
note that some of the described actions may also be a violation of the
prohibition against sex discrimination contained in section 1557.\53\
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\53\ 42 U.S.C. 18116(a) (prohibiting discrimination on the basis
of sex, among other grounds, in health programs or activities that
receive Federal financial assistance, programs or activities
administered by an Executive Agency or any entity established under
title I of the Affordable Care Act).
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We note that there may be instances where medical interventions
which have the effect of sterilization may be medically necessary.
Under such circumstances, the provision of a medical intervention that
has the effect of sterilization to a person with a disability could
nonetheless constitute a violation of this section if the patient with
a disability has not provided informed consent to the procedure, as
informed consent requirements would be applied and abided by for
similarly situated patients without disabilities.
Other Laws
Comments: Several commenters asked that we state clearly that
Federal laws and regulations supersede State laws including those
allowing forced sterilization. They asked that the Department affirm
that State laws such as those do not provide a defense to a recipient
who has otherwise violated this provision or any other part of section
504.
Response: The Department agrees that compliance with State law does
not necessarily provide a defense to a recipient that has violated
Sec. 84.56 or any other part of section 504. With regard to the
commenters who asked us to state that Federal laws always supersede
State laws, including those that sanction forced sterilization, we note
that section 504, as implemented in Sec. 84.3, Relationship to Other
Laws, applies standard principles of preemption. Any analysis of a
conflict between Sec. 84.56, the medical treatment section of this
regulation, and State laws permitting sterilization will depend on an
analysis of the specific State law. It is not therefore possible to
make a blanket statement describing circumstances in which section 504
would preempt State law.
Examples of Discriminatory Treatment
Comments: Another example of discriminatory treatment offered by
many disability rights organizations is the overprescribing of anti-
psychotic medication to individuals with developmental disabilities for
purposes of chemical restraint rather than because of a well-supported
reason to believe the medication is likely to have a therapeutic effect
on mental health. Other disability organizations offered the example of
the inappropriate provision of involuntary mental health treatment as a
potential instance of the discriminatory provision of treatment.
Some commenters offered as an example of a violation of Sec.
84.56(b)(3) the use of aversive interventions, such as electric
stimulation devices (ESD) for behavior modification. They noted that
this intervention is not imposed on people without disabilities and
would be considered illegal and unethical. Other commenters pointed to
[[Page 40096]]
unnecessary surgery being performed on people with disabilities.
Response: The Department agrees that the examples described above
could constitute discriminatory provision of medical treatment under
Sec. 84.56(b)(3). For instance, the use of an intervention that seeks
to modify behavior through the application of pain or other noxious
stimuli, if not applied to people without disabilities, would likely
violate Sec. 84.56(b)(3), as it likely represents an instance of, on
the basis of disability, providing medical treatment to an individual
with a disability where a recipient would not provide the same
treatment to an individual without a disability and where the
disability does not impact the effectiveness, ease of administration,
or have a medical effect on the condition to which the treatment is
administered. As discussed elsewhere, the Department's investigations
of specific complaints regarding violations of Sec. 84.56 will be
fact-dependent.
Informed Consent
Comments: Several commenters emphasized the importance of obtaining
informed consent to any of these treatments, particularly those
described above, from individuals with disabilities. They asked that we
emphasize that consent procedures are always subject to a section 504
nondiscrimination analysis. Many said that requirements for informed
consent could be improved if the reasonable modifications requirements
are cross-referenced in this section.
Response: The Department notes that informed consent is essential.
Cross-referencing the reasonable modification provision in particular
sections is not necessary as it is a general requirement and already
applies to all medical treatments and would apply to the informed
consent process.
Individualized Judgment
Comments: Multiple commenters requested the Department specifically
clarify that individualized judgment, rather than categorical judgments
solely on the basis of a diagnosis, is necessary in evaluating whether
a patient with a disability is qualified for a particular medical
treatment. A request for clarifying the role of individualized judgment
was made by both professional associations, which requested the
Department ensure that clinical expertise and professional judgment was
permitted to be used in individualized recommendations to patients, and
organizations representing people with disabilities, which indicated
that individualized judgment should be used in determining whether a
person with a disability is not qualified for treatment.
Response: The Department agrees that it is important for providers
to use individualized judgment when evaluating whether a person with a
disability is qualified to receive a particular medical treatment and
when communicating with people with disabilities about the implications
of the different treatment options available to them. While we have not
modified the regulatory text, we agree that individualized assessment
will generally be required when evaluating whether a disability renders
an individual not qualified for treatment or whether another legitimate
nondiscriminatory reason exists to deny a particular treatment to a
person with a disability. Categorical judgments based on the presence
of a specific diagnosis that do not entail an individualized assessment
may violate Sec. 84.56.
However, recipients are nonetheless permitted to consider the
standard of care and applicable medical evidence in forming their
judgments of whether treatment is necessary or appropriate for
individual patients. In the vast majority of circumstances, where
medically indicated care depends on the specific clinical circumstances
of the patient seeking treatment, recipients must engage in an
individualized inquiry when determining eligibility for treatment. For
example, a recipient that engages in a categorical judgment that all
patients with a prior history of substance use disorders are not
qualified to receive medications for pain management would likely
discriminate against persons with a record of a substance use disorder
under Sec. 84.56(b)(1)(i) if their denial with respect to a specific
patient was based on such a categorical judgment rather than
individualized assessment of the specific patient seeking pain
management. Such a categorical judgment would not be protected under
the professional judgment in treatment provision in Sec. 84.56(c).
Other Issues Raised by Commenters
Comment: Some commenters asked the Department to carefully review
the regulatory text to ensure that the language was as clear as
possible to a broader audience.
Response: In response to this feedback, the Department has made
non-substantive edits to Sec. 84.56(c)(1)(ii) to improve clarity of
language. Revised paragraph (c)(1)(ii) provides circumstances when
medical treatment is not required, including when a recipient has a
legitimate, nondiscriminatory reason for denying or limiting service or
where the disability renders the individual not qualified for the
treatment. We do not believe this changes the substantive meaning of
the section from the NPRM, but have made the change in order to improve
clarity of language.
Comment: Some commenters asked the Department to clarify that the
criteria in Sec. 84.56(b)(1)(i) through (iii) are not an exhaustive
list of the circumstances that would be considered discriminatory
reasons for denying or limiting medical treatment or determining that
an individual is not qualified for treatment.
Response: As the Department previously indicated within the NPRM,
the list of criteria in Sec. 84.56(b)(1)(i) through (iii) is not an
exhaustive list.
Comment: One provider group asked the Department to indicate
whether the decision to place a feeding tube in an individual with
advanced dementia instead of hand feeding could include considering the
individual's prognosis and whether the potential benefit of a feeding
tube outweighs the harms.
Response: Whether providing or denying any type of medical
treatment to patients with disabilities when the provider would not do
the same for patients without disabilities is discriminatory depends on
the facts and context of the specific case and is beyond the ability of
the Department to address in the abstract. Factors that may be relevant
in the feeding tube decision, include: the wishes of a patient or their
authorized representative, the inability of a patient to express their
preference in the absence of an authorized representative, and a
recipient's choice to avoid the use of physical restraints and/or the
denial of the gratification of tasting preferred foods. In contrast,
should the recipient opt to decline to place a feeding tube because
they believe that continued life would not be of benefit to the patient
with advanced dementia, this could violate Sec. 84.56(b)(1)(iii) and
(b)(2).
Comment: A commenter expressed concern with language under Sec.
84.56(c)(1)(ii) indicating that a recipient is not obligated to provide
a service if the recipient 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. They express concern that the phrase ``best available
objective evidence'' may be too subjective, as ``even experts may
differ on the exact rank of certain information in a clinical evidence
hierarchy or even
[[Page 40097]]
on the hierarchy itself.'' They ask that the Department modify this
language to instead indicate that ``a preponderance of evidence support
the determination regarding what is or is not clinically appropriate.''
Response: After consideration, the Department has elected to
maintain the current regulatory text. While experts may differ on the
relative strength of clinical evidence, it is incumbent upon each
recipient to make use of the best available objective evidence within
the context of their discipline, recognizing that in many instances a
mixed clinical literature will result in different clinicians arriving
at different decisions. Differences among experts or between studies
may be relevant to whether a particular medical treatment decision is
discriminatory. In such instances, the Department will consider whether
a recipient's actions are consistent with the existing evidence base.
Comment: A medical organization requested that the Department
clarify that if the clinical literature shows that the therapy is less
effective for individuals with a characteristic or marker associated
with a certain disability and as a result is not recommended for such
individuals under clinical guidelines, it would not be discriminatory
to limit coverage to those individuals who do not have the
characteristic or marker.
Response: Information on efficacy and effectiveness in the clinical
literature is relevant in assessing whether the provision of a drug or
decision not to provide to a person with a disability is
discriminatory. The specific application of Sec. 84.56 may depend on a
variety of factors, such as the relative strength of the evidence in
the clinical literature, whether the evidence indicates a drug is
ineffective for a particular subpopulation of patients with
disabilities or merely less effective, and the standards the recipient
applies for the provision of medical treatment to patients without the
disability in question.
Comments: Several commenters asked the Department to modify Sec.
84.56(c)(1)(ii) to clarify that the criteria in Sec. 84.56(b)(1)(i)
through (iii) may not be used as the basis for determining that an
alternative course of treatment would be more likely to be successful.
Response: The Department has indicated that the criteria in Sec.
84.56(b)(1)(i) through (iii) may not be used to determine that a
treatment is not clinically appropriate for a particular individual.
The determination of clinical appropriateness includes whether a
treatment would be more likely to be successful than other treatments,
and thus the circumstances described by the commenters is already
incorporated in the existing text. We have elected not to modify the
regulatory text.
Delays in Care Due to Difficulty in Locating an Interpreter
Comment: One commenter specifically asked the Department to clarify
that delays or rescheduling of care due to a recipient's inability to
locate a Certified Deaf Interpreter would not constitute a violation of
Sec. 84.56.
Response: The Department cannot provide categorical responses to
issues that are dependent on facts. Relevant facts may include whether
the patient's medical care is promptly rescheduled, the impact of the
delay on the patient's receipt of effective medical care, whether the
recipient's methods of administration (including rate of pay to
interpreters) may be causing an unnecessary delay in accessing a
Certified Deaf Interpreter, and whether the patient has received the
option of receiving care using another means of effective communication
that meets their needs.
Comment: A commenter requested that the Department replace the
phrase ``where the disability renders the individual not qualified for
treatment'' with the phrase ``when a patient's disability may pose a
legitimate medical contraindication for the treatment under
consideration.''
Response: The reference to whether a person with a disability is
``qualified'' for treatment reflects the statutory language of section
504. As a result, we will maintain the regulatory text as proposed.
Comments: Several commenters asked the Department to clarify that
recipients may not mischaracterize the services that they ordinarily
provide in their scope of practice to evade anti-discrimination
protections. A commenter also asked us to clarify that a recipient may
be required to provide a service that it does not ordinarily offer as a
reasonable modification for a qualified individual with a disability.
Response: The Department agrees that recipients may not manipulate
their scope of practice as a pretext for discrimination against people
with disabilities. For example, recipients may not define their scope
of practice to preclude the provision of medical treatment offered to
other patients to patients with disabilities. For example, an OB-GYN
who indicates that their scope of practice excludes the provision of
mammograms to women with Down syndrome, as they do not have requisite
expertise in developmental disability, would likely be in violation of
Sec. 84.56. In addition, the OB-GYN may be obligated to make
reasonable modifications consistent with Sec. 84.68(b)(7) for a
patient with Down syndrome in order to make a mammogram accessible,
including providing additional time to explain the procedure, manage
sensory sensitivities, or communicate with a designated supporter for
purposes of supported decision-making.
Similarly, recipients who define their scope of practice to exclude
the provision of medical services associated with a specific disability
that are typically offered by comparable colleagues may be in violation
of Sec. 84.56. For example, a pharmacist who indicates that the
filling of prescriptions for antiretroviral therapy for patients with
HIV is outside their scope of practice when similar pharmacies do fill
such prescriptions and there is no nondiscriminatory rationale for why
filling such prescriptions would be outside their area of expertise and
ability would likely be in violation of Sec. 84.56.
Consent
Comments: Commenters asked the Department to provide additional
examples regarding how discussions about limiting treatment would and
would not be consistent with Sec. 84.56(c)(3). One commenter
specifically raised older adults with multiple chronic conditions who
are on multiple drugs, some of which may interact in ways that harm the
person, noting that review of the patient's medications will often
result in discontinuation of certain drugs and/or changing drugs in
order to cause less harm. Another commenter raised an example under
which a child is born with genetic condition resulting in cognitive
impairment and a provider erroneously informs the family that patients
with that condition never live to adulthood in order to convince them
to withhold life-sustaining treatment, motivated by a belief that
persons with cognitive impairment constitute a burden to others.
Response: Section 84.56(c)(3) addresses the information exchange
between the recipient and the patient with a disability concerning
potential courses of treatment and their implications, including the
option of forgoing 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 on the
implications of different courses of treatment based on
[[Page 40098]]
current medical knowledge or the best available objective evidence. The
Department interprets this as including the provider's own experiences
with treatment options for any particular medical intervention. 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, the
Department intends that the result of reading Sec. 84.56(a) and
(c)(2)(ii) together is that the recipient is prohibited from
discriminating on the basis of disability in seeking consent for the
decision to treat or to forgo 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 Sec. 84.56(b)(1)(i)
through (iii). Consistent with the request of the commenters, we offer
several illustrative examples below of circumstances where a recipient
would likely be in compliance with or in violation of Sec. 84.56,
taking into account Sec. 84.56(c)(3) and its interaction with Sec.
84.56(c)(2)(ii).
A person with Type II Diabetes is diagnosed with Chronic
Obstructive Pulmonary Disease. Their physician notes that medications
for each of these conditions frequently interact, and discusses with
the patient the need to change the drugs they are currently taking or
offer different drugs than would typically be provided for their new
diagnosis, in order to avoid unintended side effects or other
complications from drug interactions. Such discussion is generally
consistent with Sec. 84.56(c)(3). Similarly, discontinuing, changing,
or offering different medications to such a patient in order to address
side effects or complications from drug interactions would generally
not present any conflict with other parts of Sec. 84.56.
A person with advanced dementia is diagnosed with cancer. Their
physician reviews their expected prognosis and concludes that
chemotherapy would only extend their life for a brief period and would
come with significant unpleasant side effects. They discuss with the
patient or their authorized representative the implications of
different courses of treatment, including whether treating the cancer
is inconsistent with their preferences in light of anticipated
complications. This is generally consistent with Sec. 84.56(c)(3). In
addition, the physician informing the patient of anticipated side
effects from treatment and the patient choosing to decline further
life-sustaining treatment based on the patient's belief that extending
their life would not be of benefit to them is generally not in
violation of Sec. 84.56(c)(2)(ii).
In contrast, when a physician pressures the patient or their
authorized representative to choose to decline life-sustaining
treatment as a result of the patient's disability, such behavior is
likely inconsistent with Sec. 84.56(c)(2)(ii). If this is motivated by
a belief that life with the patient's disability is not worth living or
a belief that the patient's medical costs will be a burden on society,
this would likely be a violation of Sec. 84.56(b)(1).
Comments: Many organizations representing individuals with
disabilities commented on Sec. 84.56(c)(3). Some commenters noted
that, as written, the paragraph focuses on the actions of the recipient
when it says that nothing prohibits a recipient from providing
information about all treatment options. One commenter suggested that
the paragraph be rewritten to focus on the right of individuals with
disabilities to obtain complete information about treatment options.
Almost all of the comments received by the Department discussed this
right of individuals with disabilities to obtain complete information
about treatment options.
A significant number of commenters said that without an open and
candid discussion of all options, an individual is not able to give
informed consent to treatments. Many noted that sometimes all options
are not discussed because the provider has made assumptions about which
options they think are best and, accordingly, they only provide
information about those options. A professional medical organization
stressed the importance of making patients aware of all possible
options including risks and potential complications. After making
individuals aware of all possible options and the risks associated with
each, the provider and the individual with disabilities should jointly
come to a decision about which course of treatment will yield the best
outcome. Another organization said that it is crucial that the provider
be aware of what matters most to patients; patients deserve to know
whether a treatment provides clear and important benefits and is
aligned with their care preferences.
Commenters were broadly in agreement about the importance of
permitting reasonable modifications that will enable an individual with
disabilities to understand and indicate consent or disagreement with
what is being discussed, including allowing a supporter to help the
individual make reasoned decisions in an accessible way through
supported decision-making. Some commenters mentioned the importance of
using plain, accessible language and, when not urgent, giving the
individual time to discuss and think about the options without
pressure. Sometimes a more in-depth discussion may be required than
would be given to an individual without a disability and some mentioned
that longer discussions may require breaks.
Many people with disabilities discussed experiencing discrimination
as a result of their use of or request for reasonable modifications,
including the use of accessible telehealth and medical devices, access
to certified interpreters for the Deaf, the use of Augmentative and
Alternative Communication (AAC) technology, the use of supported
decision-making, and other reasonable modifications as well as
auxiliary aids and services.
Response: We appreciate the commenters' feedback. This provision,
when read in conjunction with the remainder of the section, focuses not
only on what information a recipient can provide but also on what the
provider must provide. We agree with commenters who stressed the
importance of providing all treatment options to individuals with
disabilities.
The failure to offer information about all options could be a
result of the provider's own assumptions about which option is the
best. When providers do not offer complete information because they
have made an assumption based on bias, a judgment that an individual
with a disability will be a burden on others, or that an individual
with disability's life has a lesser value than that of an individual
without a disability, they have likely violated Sec. 84.56(b)(1). Such
withholding of information in order to obtain consent to decline
treatment would also likely violate Sec. 84.56(c)(2)(ii), as would the
withholding of information on the basis of disability for other
rationales.
Section 84.68(b)(7) requires recipients to make reasonable
modifications to policies, practices, and procedures when necessary to
avoid discrimination unless the recipient can demonstrate that making
the modifications would result in a fundamental alteration in the
program or activity. Multiple commenters requested that we discuss
supported decision-making in the medical treatment section and not just
in the reasonable modifications section. We are including this
discussion here, as requested, because the importance of permitting
supported decision-makers
[[Page 40099]]
to allow individuals with disabilities the means to make an informed
decision about the best course of treatment is relevant to Sec.
84.56(c)(2) as well as Sec. 84.68(b)(7). Permitting individuals with
disabilities to have a supported decision-maker with them to help
facilitate effective communication and/or to help them decide on the
best course of treatment can be crucial in ensuring that individuals
with disabilities are able to give informed consent to medical
treatments. Allowing a supported decision-maker may require other
reasonable modifications such as changing visitor policies. More
detailed information about supported decision-making as a reasonable
modification can be found in the preamble to Sec. 84.68(b)(7).
We also agree with commenters' suggestions of other types of
reasonable modifications and other forms of effective communication
that might be required, for example, by putting certain materials in
plain language, presenting information in a way that it can be
understood, permitting people with disabilities to bring a trusted
friend or family member into discussions as a supporter, and allowing
breaks in long discussions.
Comments: In light of the clarification under Sec. 84.56(c)(2)(i)
that 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, some commenters
sought additional clarification on the scope of authority of an
authorized representative, in particular whether recipients may have an
obligation to seek additional clarification or review of those
decisions when they would do so for a similarly situated patient
without a disability. One commenter asked the Department to clarify
that nothing in the regulation should preclude Federal or State law
from limiting the power of an authorized representative, including a
parent, to refuse life sustaining care for an individual.
Response: With respect to distinguishing between decisions made by
a patient's legally authorized representative and decisions made by the
patient themselves or distinguishing between authorized representatives
designated by the patient and those that were not so designated,
recipient obligations are generally to not treat patients with
disabilities differently from patients without disabilities in this
regard. For instance, if recipients would seek additional clarification
or ethics review in response to a request from an authorized
representative to decline life-sustaining or otherwise medically
indicated treatment to a person without a specific disability, then
they are generally obligated to undertake the same steps for a
similarly situated person with a disability under Sec. 84.56. In
contrast, if they would not seek additional clarification or review
when a proxy made such a decision for a person without a disability,
Sec. 84.56 does not generally require them to do so for a person with
a disability. Although some forms of authorized representation, such as
guardianship or conservatorship, are typically applied only to people
with disabilities, multiple comparators exist for authorized
representatives that are also applied to people without disabilities.
For example, patients without disabilities often designate medical
proxies or powers of attorney for health care decision-making.
Similarly, parents often make decisions on behalf of minor children
with and without disabilities. These may allow for an appropriate
comparison for the treatment of proxy decision-making, including under
circumstances where the expressed wishes of the patient seem to differ
from that of the proxy or where the treatment decision in question is
medically contraindicated.
In general, the Department agrees that the regulation does not
preclude Federal or State law from limiting the power of an authorized
representative, including with respect to decisions regarding refusing
life-sustaining care. As noted previously in the preamble, section 504,
as implemented in Sec. 84.3, Relationship to other laws, applies
standard principles of preemption.
Comment: A commenter requested the Department clarify that informed
decision-making may appropriately result in patients electing hospice
care.
Response: The Department agrees with the commenter that informed
decision-making may appropriately result in patients electing a wide
array of services and care, including hospice care. Such decision-
making on the part of the patient is generally not a violation of Sec.
84.56.
Comment: A commenter representing educators for the deaf indicated
that some children's hospitals have a practice of requiring parents or
guardians of deaf and hard of hearing children to commit during the
evaluation process for a cochlear implant that they will not use sign
language nor enroll their children in schools for the deaf, even if
they currently use sign language and are enrolled at schools for the
deaf at present. While they agree that the determination of clinical
eligibility for a cochlear implant is best left to surgeons, they ask
the Department to clarify that this would constitute prohibited
discrimination under Sec. 84.56 if patients are denied access to
medically indicated treatment due to their refusal to commit to such
terms.
Response: As indicated elsewhere, discrimination against patients
with disabilities due to their use of a particular treatment or service
associated with their disability can constitute discrimination on the
basis of disability. As a determination that discrimination has
occurred is generally fact-specific, the Department would need to
review the facts of a specific case to evaluate this question. However,
we agree that a categorical requirement that patients with disabilities
will be denied access to (or be led to believe they will be denied
access to) medically indicated treatment if they do not commit to avoid
use of assistive technology, reasonable modifications, or educational
interventions associated with their disability could constitute a
violation of Sec. 84.56 if such a requirement was not medically
indicated in order to receive the sought after treatment.
Comment: One commenter asked the Department to clarify that delays
due to the engagement of an authorized representative would not
constitute a violation of Sec. 84.56. They describe a situation where
a patient requires informed consent from an authorized representative
to receive care, but the health care provider cannot reach the
authorized representative to get informed consent in a timely manner.
Response: The Department agrees that delays due to the engagement
of an authorized representative would generally not constitute a
violation of Sec. 84.56, provided that the patient requires a
representative in order to provide informed consent and that this
judgment is not made based on a categorical belief that all patients
with a specific kind of disability (e.g., serious mental illness or a
cognitive disability) require a representative in order to provide
informed consent. We also note that there are circumstances where
physicians would typically not wait for an authorized representative to
make decisions for persons without disabilities who cannot provide
informed consent (e.g., minor children or patients who are
incapacitated on a short-term basis without a disability), such as for
the provision of immediately required life-saving or life-sustaining
treatment. Under such circumstances, the recipient must generally treat
the patient with a disability with no more delay than they would apply
to a
[[Page 40100]]
similarly situated patient without a disability.
Comments: Multiple commenters asked the Department to speak to the
intersection of disability with other types of discrimination.
Response: The Department acknowledges that disability
discrimination frequently co-occurs with other types of discrimination
and that the result of these different forms of discrimination can
intersect, resulting in discrimination that is unique to the
intersection of bases of discrimination. Section 504 prohibits
discrimination on the basis of disability and, in addition to
disability discrimination, OCR has been delegated authority under laws
that prohibit discrimination on the basis of race, color, national
origin, sex, and age. The Department agrees that simultaneous
discrimination on multiple prohibited bases (including but not limited
to intersectional discrimination) is important to account for. Section
1557, which OCR enforces, prohibits such simultaneous discrimination.
We continue to consider effective ways to address these issues
within the existing statutory authorities delegated to OCR. For
instance, OCR's proposed rulemaking on section 1557 would require
covered entities to comply with uniform policies and procedures that
apply across all prohibited bases of discrimination, rather than
different procedural requirements depending on the alleged basis of
discrimination. This accounts for claims of discrimination that are
alleged to have occurred based on multiple protected bases
discrimination and provides for more consistency regardless of whether
an allegation of discrimination is based on race, color, national
origin, sex, age, or disability--or some combination thereof.
Summary of Regulatory Changes
For the reasons set forth above and considering the comments
received, we are finalizing Sec. 84.56 as proposed with one
modification. We are changing Sec. 84.56(c)(1)(ii) so that the first
sentence provides that circumstances in which the recipient has a
legitimate, nondiscriminatory reason for denying or limiting a service
or where the disability renders the individual not qualified for the
treatment may include 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.
Value Assessment (Sec. 84.57)
Proposed Sec. 84.57 addressed the application of section 504 to
value assessment. It stated that a recipient may not 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 any aid,
benefit, or service, including the terms or conditions under which they
are made.
The Department sought comment on how value assessment tools and
methods may provide unequal opportunities to individuals with
disabilities and on other types of disability discrimination in value
assessment not already specifically addressed with the proposed
rulemaking. We also sought comment on whether the provision would have
a chilling effect on academic research.
The comments and our responses regarding Sec. 84.57 are set forth
below.
Comment: Many commenters, including entities engaged in value
assessment, expressed broad support for the Department's proposal to
include a provision relating to disability discrimination in value
assessment. One comment from a prominent organization engaged in value
assessment activities referred to the Department's proposed regulatory
text as ``very precise and appropriate'' and indicated support for the
provision in its current form.
Response: The Department appreciates comments on our proposed
approach to addressing disability discrimination in value assessment,
including comments that the proposed rule appropriately prohibits
discriminatory uses of value assessment and permits the use of value
assessment in a nondiscriminatory fashion.
Comment: Many commenters asked the Department to consider expanding
the scope of Sec. 84.57 to prohibit discounting the value of quality
of life, in addition to life extension, on the basis of disability.
Other commenters specifically asked the Department not to expand the
provision in this way and requested the Department maintain the
regulatory text proposed within the NPRM.
Response: While the Department has addressed disability
discrimination on the basis of perceptions of quality of life in other
aspects of the regulation, Sec. 84.57 applies only to value assessment
methods that discount the value of life extension on the basis of
disability. As discussed in the NPRM, elements of value assessment
methods that may violate Sec. 84.57 in some contexts--such as for
valuing life extension--may not violate it in other contexts. We have
decided against adding a prohibition on measures that discount the
value of quality of life on the basis of disability in Sec. 84.57
because, within the context of value assessment, the use of measures
that determine the value of a treatment based on the magnitude of
quality of life changes are often beneficial to persons with
disabilities. Such measures create a mechanism through which the
relative degree of quality of life improvements a treatment provides
compared to other similar treatments can be incorporated into a pricing
strategy. However, we reiterate that the use of measures that also
discount 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 any aid, benefit, or service, including
the terms or conditions under which they are made available, would be
prohibited. This remains the case even if the additional value assigned
to a treatment due to quality of life improvements fully offsets any
penalty assigned from discounting the value of life-extension. We also
note that discounting the value of quality of life on the basis of
disability for purposes of denying or limiting medical treatment to a
qualified individual with a disability would likely violate Sec.
84.56.
Other aspects of this rule may also be relevant when evaluating
recipient value assessment activities. These include Sec. 84.56, which
prohibits discrimination on the basis of biases or stereotypes about a
patient's disability, judgments that the individual will be a burden on
others due to their disability, and a belief that the life of a person
with a disability has lesser value or that life with a disability is
not worth living. The Department will continue to monitor disability
discrimination concerns in value assessment activities as the field
develops.
Comment: Some commenters requested that the Department specifically
clarify that the Department does not intend to prohibit
nondiscriminatory uses of value assessment.
Response: As indicated in the NPRM, the rule does not prohibit
nondiscriminatory uses of value assessment.
Comment: Many commenters asked the Department to indicate that
certain specific methods of value assessment were permitted under Sec.
84.57, while other commenters asked the Department to indicate that the
same or similar methods were prohibited under Sec. 84.57.
Response: As the Department indicated within the NPRM, we have
[[Page 40101]]
elected not to identify the use of any specific method of value
assessment, but instead to prohibit 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 have
done so because the determination that a specific value assessment
method will be prohibited depends on the specific context and purpose
for which that method is utilized. For example, some methods that are
impermissible for purposes of reimbursement or utilization management
decisions are still permitted for purposes of academic research.
The use of a measure that does not discount the value of life
extension on the basis of disability likely does not violate Sec.
84.57. The Department notes, however, that composite measures that use
methods that discount the value of life extension on the basis of
disability as one component of a larger summary measure or pricing
strategy could, depending on the particular facts of a specific case,
be prohibited for use in 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 if the
component that discounts the value of life extension contributes to the
price set by the measure or any decision to determine eligibility,
referral for, or provision or withdrawal of an aid, benefit or service.
This is true even where other components of the summary measure or
pricing strategy do not discount the value of life extension.
Comment: A commenter requested the Department prohibit all ``cost-
per-generic-health metric'' methods of value assessment, encompassing a
broad range of methodologies not prohibited under the current language
of Sec. 84.57.
Response: The Department declines to make this change. A
prohibition as broad as the one proposed by the commenter would
encompass alternative methods of value assessment that do not
discriminate on the basis of disability under the Department's current
understanding of section 504. We have elected to limit Sec. 84.57 to
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.
Comment: Some commenters asked the Department to align the language
of Sec. 84.57 with the text of section 1182 of the Affordable Care
Act, which prohibits ``the use of a dollars-per-quality-adjusted-life-
year (or similar measure that discounts the value of a life because of
an individual's disability)'' from being used to determine coverage,
reimbursement, or incentive programs in certain program or activities.
Response: The Department has elected not to modify the regulatory
text. The Department interprets recipient obligations under the current
language of Sec. 84.57 to be broader than section 1182 of the
Affordable Care Act, because it prohibits practices prohibited by
section 1182 (where they are 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) and prohibits other instances of discriminatory
value assessment. As we have indicated elsewhere, section 504 is a
civil rights statute rather than a program statute, and thus is not
required to align precisely with requirements in program statutes. We
decline to modify the regulatory text to use the same language as in
section 1182.
Comment: Some commenters asked the Department to clarify that a
recipient engaged in value assessment activities that is in compliance
with Sec. 84.57 might still violate other requirements under section
504 in such activities. For example, one State Attorney General asked
the Department to explicitly indicate that Sec. 84.57 is not exclusive
and does not preclude the application of other provisions of section
504 to value assessment activities. In the absence of such
clarification from the Department, the commenter raised concerns that
Sec. 84.57 might inadvertently foreclose claims against recipients who
use discriminatory algorithms or artificial intelligence tools that
discriminate against people with disabilities.
Response: The Department agrees that compliance with Sec. 84.57--
which prohibits only the use of value assessment methods that discount
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--does not mean
that a recipient has not violated other provisions of the section 504
rule.
Comment: Several commenters asked the Department to indicate
whether the use of specific value assessment methods to develop health
care policies, including drug formularies and utilization management
strategies, could be discriminatory under Sec. 84.57.
Response: The use of value assessment methods for developing health
care policies, including drug formularies and utilization management
strategies, could be discriminatory under Sec. 84.57 if the method
used discounts the value of life extension on the basis of disability
and is used to determine eligibility or referral for, or provision or
withdrawal of any aid, benefit, or service. This could include, for
example, the use of value assessment methods for formulary
construction, design, development, or refinement as well as other
utilization management strategies of recipients.
Comment: Several comments asked the Department to provide
additional clarity on the application of Sec. 84.57 to academic
research. One commentor asked the Department to specifically clarify
that academic research, including research that references quality-
adjusted life years (QALYs), can be used to inform multi-factor
Medicaid agency decision making. Other commenters asked the Department
to provide additional clarity with respect to how academic research may
be used for purposes of value assessment.
Response: Within the NPRM, the Department explicitly indicated that
it is the discriminatory use of a measure by a recipient that violates
of Sec. 84.57. 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 effect of different
policy changes or medical innovations on national or global population
health.
However, a recipient who makes use of academic research to
determine eligibility, referral for, or provision or withdrawal of an
aid, benefit, or service may violate section 504 if the use of the
method in the research product is discriminatory when applied in the
new context. A value assessment output used by a recipient that is
derived from a method that discounts the value of life extension on the
basis of disability is not made permissible because the recipient is
using a research product, when it would not be permissible for the
recipient to make use of that method directly.
As to the use of academic research in Medicaid agency decision-
making, as discussed in the NPRM, the Department does not intend to
reference any further specific value assessment methods as prohibited
or permitted under Sec. 84.57, as this determination will be the
result
[[Page 40102]]
of the specific context and purpose for which a value assessment method
is utilized. However, recipients may make use of prices or other
outputs from value assessment methods that do not discount the value of
life-extension on the basis of disability within academic research.
This remains the case even where that academic research also includes
prices or other outputs determined via methods that do discount the
value of life extension on the basis of disability, provided that the
recipient is only making use of outputs that come from value assessment
methods that do not discount the value of life extension on the basis
of disability.
For example, consider a State Medicaid agency seeking to determine
appropriate pricing for a new drug for purposes of negotiating drug
prices with a manufacturer and subsequently making decisions regarding
utilization management. In doing so, they refer to academic research
that calculates multiple potential pricing options for that drug, using
multiple different value assessment methods for purposes of comparing
pricing under different methods. Some of these methods discount the
value of life extension on the basis of disability, whereas others do
not. The State Medicaid agency would generally not violate Sec. 84.57
if it uses pricing from methods that do not discount the value of life
extension on the basis of disability to inform their negotiations with
a manufacturer. In contrast, should the State Medicaid agency use
prices or other outputs from a value assessment method that does
discount the value of life extension on the basis of disability
presented within the same academic research, this could violate Sec.
84.57.
Comment: One commenter expressed concern that the Department's
explanation of Sec. 84.57 in the NPRM was inconsistent with language
in Sec. 84.56(b)(2) prohibiting discrimination only in instances where
an individual experiences discrimination on the basis of an underlying
disability distinct from the separately diagnosable symptom or medical
condition they are seeking treatment from. They asked the Department to
clarify its discussion of Sec. 84.57 to align it with Sec.
84.56(b)(2).
Response: This comment misunderstands the scope of section 504 and
the referenced provisions. These are different provisions with
different applications. The distinction between persons seeking
treatment for their own underlying disability and persons seeking
treatment for a separately diagnosable symptom or medical condition is
made only with respect to the broad-based prohibition in Sec.
84.56(b)(2) indicating 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. The medical
treatment provision is not limited to that one part.
For example, even within Sec. 84.56, the Department indicates that
discrimination based on biases or stereotypes about a patient's
disability, judgments that the individual will be a burden on others
due to their disability, or a belief that the life of a person with a
disability has lesser value or that life with a disability is not worth
living is prohibited regardless of whether treatment is sought for a
separately diagnosable medical condition or symptom or for a patient's
underlying disability. These obligations apply to recipient activities
without regard to whether the potential discrimination in the use of a
value assessment method is on the basis of an underlying disability or
separately diagnosable symptom or medical condition. Similarly, other
provisions implementing section 504--such as Sec. 84.57--are also not
subject to this limitation.
Comment: One commenter argued that the use of the QALYs and other
methods of value assessment that frequently entail discounting the
value of life extension on the basis of disability are not
discriminatory because they are ``only one step'' in a process of
decision-making, noting that policymakers also take into account other
factors in their ultimate decision-making.
Response: Although recipients may make use of multiple factors to
influence their decision-making, the use of a measure of value that
assigns lower value to extending the lives of people with disabilities
to determine eligibility, referral, or provision or withdrawal of an
aid, benefit, or service can be nonetheless discriminatory.
Comment: One commenter requested that the Department not take a
stance on utility weight generation. They specifically asked that we
not require the use of direct patient utilities. They noted that
concerns that value assessment ``quantifies stereotypic assumptions
about persons with disabilities'' relate ``less to the application of
cost-per-QALY analyses, and more to the underlying elicitation approach
used to generate utility weights called time-trade-off exercises.'' The
commenter argued that there is value in ``both general population
preferences and patient preferences'' in generating utility weights and
that relying exclusively on patient preferences might serve to
undervalue treatments as compared to using utility weights from the
general population.
Response: The Department agrees that it would not be appropriate to
require the use of direct patient utilities. Methods of utility weight
generation are subject to section 504 when they are used in a way that
discriminates. They are subject to Sec. 84.57 and other provisions
within the rule, such as Sec. 84.56's prohibition of discrimination
based on biases or stereotypes about a patient's disability, among
others. However, the Department does not take a position on specific
methods of utility weight generation at this time.
Comment: One commenter asked the Department to modify the language
reading ``value of life extension'' to ``value of treatments that
extend life.'' They indicate that this would better reflect their view
that ``the objective of value assessment is not to value the life of
individuals, rather, estimate the value of treatments that may extend
life.''
Response: We decline to make this change, as the proposed text
``value of treatments that extend life'' would substantially alter the
meaning of the regulation, prohibiting a far broader scope of value
assessment activities than the current text. Furthermore, we believe
that the current language accurately describes the discriminatory uses
of value assessment prohibited by this provision.
Comment: One commenter asked the Department to avoid banning the
QALY in academic research, expressing concern for unintended
consequences of such a step.
Response: Section 84.57 does not prohibit the use of any value
assessment method, including the QALY, in academic research. As
mentioned in the NPRM, 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. In addition, we reiterate that the discriminatory
use of a measure by a recipient violates this provision, but other uses
may not. Nor does the rule outright ban the use of specific measures
such as QALYs.
Comment: Some commenters argued that the use of the QALY and other
similar measures that discount the value of life extension on the basis
of disability for purposes of resource allocation is not discriminatory
because it yields a higher valuation for a given health care
intervention than a cost-per-
[[Page 40103]]
life-year calculation would, as the latter does not take into account
quality of life improvements. They also reference other value
assessment methods that may, under certain circumstances, assign lower
valuations than a cost-per-QALY framework. The commenters argue that
because the QALY delivers a higher valuation than non-QALY methods
under these circumstances it cannot be discriminatory to make use of it
even where it discounts the value of life-extension on the basis of
disability, as it assigns a higher valuation to quality of life
improvements than the alternative methods they reference.
Response: The Department disagrees. It is true that for
interventions that improve quality of life, a cost-per-QALY valuation
will likely be higher than a cost-per-life-year valuation, because a
cost-per-life-year approach assigns no value to quality of life
improvements. We note the availability of other value assessment
methods. However, compliance with Sec. 84.57 does not require the use
of a cost-per-life-year valuation, an approach that is relatively
uncommon when evaluating interventions that improve patient quality of
life. The use of other alternative value assessment methods may yield
different results.
In addition, the discriminatory nature of assigning less value to
extending the lives of people with disabilities remains the case even
where other factors in a value assessment system result in a higher
valuation. In short, discounting the value of life-extension on the
basis of disability to deny or afford an unequal opportunity to
qualified individuals with disabilities is prohibited even if other
aspects of a system of value assessment favor people with disabilities
(though a recipient could incorporate such favorable treatment into an
approach that does not discount life-extension on the basis of
disability for such purposes). Favorable treatment in one component of
a program of value assessment does not permit discriminatory treatment
in another context. Finally, we note that the Department does not take
a position on which alternative measure of value assessment recipients
should use.
Comment: The Department requested comment on how value assessment
tools and methods may provide unequal opportunities to individuals with
disabilities. Numerous commenters indicated that value assessment
methods could limit people with disabilities' access to health care
goods and services, including pharmaceutical interventions, and
expressed concern that the use of the QALY unfairly limited access to
emerging pharmaceutical interventions that could extend the lives of
people with disabilities.
Response: While the nondiscriminatory use of value assessment is an
important tool for health care cost containment, the Department agrees
that discriminatory usages of value assessment harm people with
disabilities and provide unequal opportunities.
Comment: The Department requested comment on other types of
disability discrimination in value assessment not already specifically
addressed within the proposed rulemaking. In addition to the proposals
already discussed, some commenters urged the Department to consider
disability discrimination in clinical algorithms, automated decision-
making and artificial intelligence. This was also raised in comments
regarding Sec. 84.56.
Response: The Department agrees that disability discrimination
resulting from the use of algorithms, automated decision-making, and
artificial intelligence is a serious issue. Section 504 prohibits a
recipient from discriminating on the basis of disability. This
encompasses discrimination through a recipient's use of algorithms,
automated decision-making, and artificial intelligence. For example,
during the COVID-19 public health emergency, OCR discovered that Crisis
Standards of Care plans that States and hospital systems used to
allocate scarce resources relied on clinical algorithms to determine
the allocation of scarce critical care resources. Many of these
algorithms discriminated against people with disabilities and older
individuals by categorically excluding patients with certain types of
disabilities or by considering other factors that can be discriminatory
based on disability or age, such as long-term survival prospects or
anticipated intensity of resource utilization. OCR worked extensively
with several States during the public health emergency to help them
revise their Crisis Standards of Care plans to remove discriminatory
bias \54\ and issued guidance on that issue.\55\ We note that other
Federal agencies have also identified that disability discrimination
through the use of algorithms and artificial intelligence violates
existing Federal civil rights laws.\56\ The Department is particularly
interested in monitoring disability discrimination through the use of
these tools in the context of child welfare, medical treatment, long-
term services and supports, and alternative payment models. Section 504
already prohibits disability discrimination in these and other
activities through recipients' use of clinical algorithms, automated
decision-making, and artificial intelligence. A more tailored
application of the framework outlined here to algorithms, automated
decision-making, and artificial intelligence requires further
information gathering.
---------------------------------------------------------------------------
\54\ U.S. Dep't of Health & Human Servs., Off. for Civil Rts.,
Civil Rights and COVID-19, https://www.hhs.gov/civil-rights/for-
providers/civil-rights-covid19/
index.html#:~:text=NON%2DDISCRIMINATION%20IN%20CRISIS%20STANDARDS%20O
F%20CARE (last reviewed May 11, 2023).
\55\ 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, https://www.hhs.gov/civil-rights/for-providers/civil-rights-covid19/disabilty-faqs/index.html#footnote3_2brd1au; Press release, Dep't of
Health & Human Servs., Off. for Civil Rts., HHS Issues New Guidance
for Health Care Providers on Civil Rights Protections for People
with Disabilities (Feb. 4, 2022), https://www.hhs.gov/about/news/2022/02/04/hhs-issues-new-guidance-health-care-providers-civil-rights-protections-people-disabilities.html.
\56\ See, e.g., U.S. Dep't of Justice, Algorithms, Artificial
Intelligence, and Disability Discrimination in Hiring (2022),
https://www.ada.gov/resources/ai-guidance/; U.S. Equal Emp't
Opportunity Comm'n, EEOC-NVTA-2022-2, The Americans with
Disabilities Act and the Use of Software, Algorithms, and Artificial
Intelligence to Assess Job Applicants and Employees (2022), https://www.eeoc.gov/laws/guidance/americans-disabilities-act-and-use-software-algorithms-and-artificial-intelligence.
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As we discussed earlier in the preamble, Sec. Sec. 84.56 and 84.57
are not exhaustive with respect to recipient obligations regarding
medical treatment and value assessment, respectively. A recipient's
compliance with Sec. Sec. 84.56 and 84.57 does not preclude liability
for violations of other sections.
OCR has taken additional and will consider further actions to
clarify recipients' obligations under Federal civil rights laws
regarding the use of algorithms, automated decision-making, and
artificial intelligence. For example, the Department's section 1557
final rule on Nondiscrimination in Health Programs and Activities
prohibits a covered entity from discriminating on the basis of race,
color, national origin, sex, age, or disability in its health programs
or activities through the use of patient care decision support tools,
which include algorithms, automated and non-automated tools, and
artificial intelligence used to support clinical decision-making.
The Department is interested in the public's views regarding
disability discrimination that occurs through the use of algorithms,
automated decision-making, and artificial intelligence. We are also
interested in the public's views on whether OCR should issue guidance
[[Page 40104]]
or consider future rulemaking related to the application of section 504
to disability discrimination that results from the use of algorithms,
automated decision-making, and artificial intelligence. Anyone
interested in sharing views or comments on these issues should do so by
sending the information by letter to the Office for Civil Rights at
U.S. Department of Health and Human Services, Office for Civil Rights,
Attention: Disability Information, RIN 0945-AA15, Hubert H. Humphrey
Building, Room 509F, 200 Independence Avenue SW, Washington, DC 20201
or by email to the Office for Civil Rights at [email protected].
Comment: The Department sought comment on the extent to which,
despite indicating that Sec. 84.57 would not apply to academic
research alone, the provision would have a chilling effect on academic
research. The majority of commenters indicated their belief that,
rather than chill academic research, Sec. 84.57 would spur an
expansion in research making use of nondiscriminatory alternatives to
the QALY and research further developing and refining such alternative
measures. In contrast, a commenter expressed concern that prohibiting
methods of value assessment that discount the value of life extension
on the basis of disability would chill academic research as researchers
would be less likely to invest time and resources into generating
research findings that cannot inform decision-making.
Response: The Department agrees that the proposed provision may
spur an expansion in research making use of nondiscriminatory methods
of value assessment and research further developing and refining such
alternative measures. While we recognize that researchers may orient
their time and resources into generating research findings using
nondiscriminatory methods that can inform health care resource
allocation and decision-making and away from discriminatory methods
that cannot be used for such purposes, we see this as a possible
positive feature of this regulatory provision. Given the existence of
nondiscriminatory options and the Department's carefully targeted
approach to addressing disability discrimination in value assessment,
we do not believe this represents a chilling of academic research into
value assessment as a whole.
Summary of Regulatory Changes
For the reasons set forth above and considering the comments
received, we are finalizing Sec. 84.57 as proposed with no
modifications.
Children, Parents, Caregivers, Foster Parents, and Prospective Parents
in the Child Welfare System (Sec. 84.60)
The Department proposed in Sec. 84.60 to address the wide range of
discriminatory barriers that individuals with disabilities face when
accessing child welfare systems. These included a failure to provide
reasonable modifications as required of all recipients in proposed
Sec. 84.68(b)(7). It also included the failure to place children in
the most integrated setting appropriate to the needs of the child as
required by existing Sec. 84.4(b)(2), proposed Sec. 84.68(d), and the
specific integration requirements contained in proposed Sec. 84.76.
The preamble provided examples of the violation of the most integrated
setting requirement in the child welfare setting.
The Department sought comment on additional examples of the
application of the most integrated setting requirement to child welfare
programs and welcomed comment on any additional points for
consideration regarding integration of children with disabilities in
child welfare contexts.
Proposed Sec. 84.60(a)(1) prohibited exclusion of qualified
individuals with disabilities in the child welfare system.
Proposed Sec. 84.60(a)(2) provided that prohibited actions include
discrimination based on speculation, stereotypes, or generalizations
about whether parents and others with disabilities listed in the
heading of the section can safely care for a child and decisions based
on speculation, stereotypes, or generalizations about an individual
with a disability.
Proposed Sec. 84.60(b) set forth a non-exhaustive list of
additional prohibitions.
The Department requested comment on the list of prohibited
activities, especially on whether commenters believe it is complete.
Proposed Sec. 84.60(c) would require recipients to establish
referral procedures for individuals who need or are believed to need
adapted services or reasonable modifications, and to ensure that tests,
assessments, and other evaluation materials, are tailored to assess
specific areas of disability-related needs.
The Department sought 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 evaluation.
The comments and responses regarding Sec. 84.60 are set forth
below.
General
Comment: Many commenters enthusiastically supported the revisions
to the child welfare section, echoing the Department's explanation in
the NPRM that children, parents, caregivers, foster parents, and
prospective parents with disabilities encounter a wide range of
discriminatory barriers when accessing critical child welfare programs
and services. Some commenters submitted stories of discrimination
against foster parents and caregivers with disabilities who could
provide safe and proper care to a child, such as a prospective adoptive
parent being denied solely on the basis of having spinal muscular
atrophy, which required the prospective mother to use a wheelchair.
Response: The Department believes the experiences shared with the
Department through public comments underscore the importance of
eliminating discrimination in child welfare services.
Comment: Several commenters asked the Department to include
explicit reference to other child welfare statutes, such as title IV-E
of the Social Security Act of 1935 (Pub. L. 96-272, 94 Stat 500), the
Family First Prevention Services Act (Pub. L. 115-123, 132 Stat 64),
and the Indian Child Welfare Act (Pub. L. 95-608, 92 Stat 3069).
Commenters asked that the Department elaborate on how section 504
interacts with the requirements of these laws.
Response: Compliance with section 504 is consistent with the
Federal child welfare statutes, but the Department declines to
incorporate their requirements by reference because those other laws
are beyond the scope of this rulemaking. We note that Sec. 84.3 makes
clear that part 84 ``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.'' We will continue to work with our sister
agencies within HHS as questions or comments arise regarding various
child welfare statutes and regulations, including section 504, and will
provide guidance and technical assistance as appropriate.
Application of This Section
Comment: Several commenters requested that the term ``youth'' or
``young people'' be added wherever child or children is used to avoid
unintentionally excluding individuals over the age of 18 who are
receiving child welfare services. Commenters
[[Page 40105]]
recommended that the word ``youth'' be used to replace the word
``child'' or ``children,'' or that ``child'' be defined as ``an
individual under age 18 and young people aged 18 and over who are
eligible for child welfare services pursuant to 42 U.S.C.A. 675 (8).''
Response: ``Qualified individual with a disability'' in paragraph
(a) includes individuals of all ages eligible for child welfare
services, including individuals over the age of 18. The age of
eligibility for State child welfare services is determined by State
law, and may include youth up to age 21.\57\ These individuals are
covered under the existing language, and the proposed addition
suggested by commenters could potentially create confusion, and could
erroneously imply that these individuals were not already covered.
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\57\ 42 U.S.C. 675 (8) (allowing States to extend services to
individuals up to age 21).
---------------------------------------------------------------------------
Comment: Several commenters asked that we elaborate on the
different legal forms of parentage in the rule's definition of
``parent,'' and referenced different legal structures such as including
Voluntary Acknowledgements of Parentage (VAPs), court orders, marital
presumptions, being an intended parent to a child born through assisted
reproduction, and functional parenthood (such as de facto parentage).
Response: The Department appreciates commenters' feedback and notes
that there are varied ways parents receive legal recognition under
State law. However, our current definition of ``parents,'' as
``biological or adoptive parents or legal guardians as determined by
applicable State law,'' encompasses the different ways individuals may
be recognized by State law as parents.
Comment: Many commenters asked that the child welfare section
explicitly reference other sections of the rule, such as the
requirements for reasonable modifications and effective communication.
For example, several commenters asked that the Department specify that
parenting classes and their written materials, any forms or assessments
parents are required to fill out, and any information provided to
parents, must all be accessible to individuals with disabilities.
Response: The Department affirms that subparts A, B, C, Sec. Sec.
84.51, 84.52, and 84.54 of subpart F, and subparts G, H, and K apply to
all child welfare recipients. The child welfare-specific regulatory
language in Sec. 84.60 does not narrow or limit recipients' existing
and long-standing obligations under section 504 or the ADA. Rather,
specific provisions in this section address several aspects of
discrimination that are common in child welfare programs and services.
Where an individual with a disability faces discrimination not
addressed by these specific provisions, then the broader equal access,
equal opportunity, reasonable modifications, and non-discrimination
provisions of the regulation, along with the accompanying defenses,
shall continue to apply.
Comment: Some commenters asked the Department to add discrimination
based on substance use disorder to the list of prohibited activities.
Commenters cited that parents and prospective parents, foster parents,
and other caregivers in recovery from addiction are often discriminated
against for using medications for opioid use disorder (MOUD).
Response: The Department recognizes that discrimination against
parents and prospective caregivers in recovery from opioid use disorder
and in recovery from other substance use disorders (SUD) is
widespread.\58\ For example, in August 2023 the OCR settled an
investigation resolving a complaint against a county-operated child
welfare agency that denied an individual the opportunity to apply to be
a foster parent because she receives medication for the treatment of
substance use disorder and not based on an analysis of her ability to
be an effective foster parent, a violation of her rights under section
504. The Department has previously issued guidance related to MOUD and,
as noted in the NPRM's preamble, continues to enforce cases of
discrimination against individuals prescribed MOUD.\59\ With limited
exceptions, the ADA and section 504 do not protect individuals engaged
in the current illegal use of drugs, including if an entity takes
action against them because of that illegal drug use.\60\
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\58\ See e.g., U.S. Dep't of Health & Human Servs., Off. for
Civil Rts., HHS Office for Civil Rights Secures Agreement with
Commonwealth of Pennsylvania to Advance the Rights of People in
Recovery and Involved in Child Welfare Services (Aug. 8, 2023),
https://www.hhs.gov/about/news/2023/08/08/hhs-office-civil-rights-secures-agreement-commonwealth-pennsylvania-advance-rights-people-recovery-involved-child-welfare-services.html.
\59\ U.S. Dep't Health & Human 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.
\60\ 42 U.S.C. 12210 (ADA); 29 U.S.C. 705(20)(C) (section 504).
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Discriminatory Actions Prohibited (Sec. 84.60(a))
Comment: Several commenters emphasized the importance of avoiding
``speculation, stereotypes, or generalizations'' in assessing whether a
parent's disability poses a direct threat to the child. Commenters also
asked that direct threat be added to the language of this section.
Response: This section does not use the language ``direct threat,''
because it covers a broader category of decisions where a covered
entity may determine that a parent, caregiver, foster parent, or
prospective parent, because of a disability, cannot safely care for a
child. These decisions may include but are not limited to, whether a
parent poses a direct threat to the child. However, the Department
emphasizes while child welfare agencies may make determinations to
disqualify a parent or child from services on grounds that they may
pose a direct threat to others, such determinations are subject to
Sec. 84.75. Child welfare agencies and providers are required by law
to ensure the safety of children in the child welfare system, and a key
priority of child welfare agencies is the wellbeing of children. The
determination of whether a caregiver can provide for a child's safety
and wellbeing must be based on facts regarding each individual and not
based on stereotypes about people with disabilities. In determining
whether an 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 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.
Child Welfare Question 1 Regarding ``Most Integrated Setting''
Comment: The Department sought comment on additional examples of
the application of the most integrated setting requirement to child
welfare programs and welcomed comment on any additional points for
consideration regarding integration of children with disabilities in
child welfare contexts. In response, numerous commenters noted that the
most integrated setting for children is the family home with in-home
supports and services. Commenters noted that child welfare settings
exist on a continuum of integration, with the most integrated setting
for a child being receiving
[[Page 40106]]
services at home with their parents, followed by properly supported
kinship placements, then foster care in a family setting, including
when appropriate therapeutic foster care. Commenters noted that
congregate care is the least integrated setting, yet it is often the
default placement for children with disabilities, particularly
disabilities related to mental and behavioral health. Many commenters
urged that congregate care placements are only nondiscriminatory when
the covered entity has made reasonable modifications to services and
supports that could enable children to remain together in the family
home. Several commenters asked that we include specific language in the
regulatory text describing the criteria for congregate care placements.
Many commenters also noted that ensuring families can remain
together at home potentially requires the coordination of multiple
covered entities and associated services, including long-term services
and supports, home modifications and assistive technology, employment
supports and services, community-based mental health services and
community resources or supports for people with substance use
disorders. A commenter asked the Department to emphasize the harms of
certain placements, such as out-of-state placements.
Response: While the Department declines to distinguish explicitly
between different congregate care settings or list mandatory criteria
for congregate care placements, we reiterate that all children with
disabilities in foster care are entitled to receive services in the
most integrated setting appropriate to their needs,\61\ and congregate
care is virtually never the most appropriate long-term setting for
children.\62\ We agree with commenters that the most integrated setting
appropriate for children with disabilities is almost always the family
home or a family foster care setting.\63\ Recipients should consider
and facilitate the full range of services and supports a family may be
eligible for to keep parents and children together.
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\61\ See, e.g., G.K. by Cooper v. Sununu, No. 21-cv-4-PB, 2021
WL 4122517 (D.N.H. Sept. 9, 2021), allowing a class action to
proceed on claims filed by or on behalf of children in foster care
alleging violations of the ADA and section 504 based on a State's
failure to provide alternatives to congregate care for children with
disabilities. Id. at *10 (``Unless [the State] could prevail on a
fundamental-alteration defense, the State must administer its foster
care services in a manner that enables plaintiffs to live in . . .
integrated settings.'').
\62\ See, e.g., U.S. Dep't of Health & Human Servs., Admin. for
Child. & Fam., Children's Bureau, Reducing the Use of Congregate
Care, https://www.childwelfare.gov/topics/permanency/reducing-use-congregate-care/ (``Congregate care settings, such as group homes
and residential facilities, are not a substitute for family and
should only be used on a time-limited basis when youth require
services that are unavailable in a less restrictive environment to
address psychological or behavioral needs.''); U.S. Dep't of Health
& Human Servs., Admin. for Child. & Fam., Children's Bureau, A
National Look at the Use of Congregate Care in Child Welfare, (May
13, 2015) https://www.acf.hhs.gov/sites/default/files/documents/cb/cbcongregatecare_brief.pdf (``[T]here is consensus across multiple
stakeholders that most children and youth, but especially young
children, are best served in a family setting. Stays in congregate
care should be based on the specialized behavioral and mental health
needs or clinical disabilities of children. It should be used only
for as long as is needed to stabilize the child or youth so they can
return to a family-like setting.'').
\63\ See, e.g., Sandra Friedman et al., Out-of-Home Placement
for Children and Adolescents With Disabilities--Addendum: Care
Options for Children and Adolescents With Disabilities and Medical
Complexity. 138:6 Pediatrics: Official Journal of the American
Academy of Pediatrics (2016), https://publications.aap.org/pediatrics/article/138/6/e20163216/52567/Out-of-Home-Placement-for-Children-and-Adolescents?autologincheck=redirected (``Children and
adolescents with significant intellectual and developmental
disabilities and complex medical problems require safe and
comprehensive care to meet their medical and psychosocial needs.
Ideally, such children and youth should be cared for by their
families in their home environments. When this type of arrangement
is not possible, there should be exploration of appropriate,
alternative noncongregate community-based settings especially
alternative family homes.); 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. Child. & Youth Servs. Rev. 9 (2014), http://dx.doi.org/10.1016/j.childyouth.2013.11.027. The United States has taken the
position that even children with intensive behavioral needs have
better outcomes in family settings. See 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 (``With 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.'').
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Lastly, while this rule's provisions do affirm the child welfare
system's requirements when it interacts with people with disabilities
under section 504, the Department's position is that children should
not be required to enter or remain in the child welfare system solely
to receive disability-related services and supports. The Department
notes that child welfare services may have limits based on legal
requirements in judicial proceedings for child welfare system
involvement. In the event that long term supports are needed outside of
foster care, the Department encourages transition planning to assist
with continuity of supports and services.
Child Welfare Question 2 Regarding Additional Prohibitions
Comment: The Department requested comment on the list of prohibited
activities in Sec. 84.60(b), especially on whether commenters believe
it is complete. Commenters offered specific examples of denial,
termination, or abridgment of specific services, such as family
preservation services, that should be prohibited. These are often
short-term services designed to help families cope with significant
stresses or problems that interfere with their ability to nurture their
children. The goal of family preservation services is to maintain
children with their families and may be distinct from reunification
services. Several commenters asked that mandatory custody
relinquishment, a policy in some jurisdictions where parents are
required to relinquish custody of their child with disabilities so that
the child may receive services, be added to the list of prohibited
activities. Several commenters recommended that the language in Sec.
84.60(b) include all child welfare services. Additionally, multiple
commenters recommended that paragraph (b)(3) mirror the language of
Sec. 84.68(b)(1)(iii) in the general prohibitions against
discrimination section.
Response: The Department appreciates commenters' identification of
potential prohibited activities. While paragraph (b) lists additional
prohibited activities, the list is not intended to be exhaustive. All
child welfare recipients must comply with Sec. 84.68, which prohibits
discrimination in all of a recipients' programs and activities
including aids, benefits, and services provided by the recipient.
In consideration of comments received, we have added ``any and all
services provided by a child welfare agency, including but not limited
to . . .'' to paragraph (b)(2) to underscore that no service may
discriminate on the basis of disability. We have also added ``family
preservation services'' to the paragraph, recognizing that these
services help families avoid separation through loss of custody or
foster care placement.
The Department noted in the NPRM that the practice of requiring
parents to relinquish custody of a child with a disability, so that the
child may receive disability-related services, is common in some
jurisdictions. For example, a child welfare agency may require parents
to relinquish custody so that a minor with a mental illness may receive
intensive behavioral health supports in a group home, without any
showing of abuse or
[[Page 40107]]
neglect by the parent required to forfeit parental rights. Requiring a
child to be removed from the family home, on the basis of the child's
disability, in order to receive services is discrimination under
section 504. To clarify the discriminatory nature of this practice, we
have added a prohibition against it in paragraph (b)(5).
Parenting Evaluation Procedures (Sec. 84.60(c))
Comments: Several commenters asked for the elimination of the use
of IQ scores in parental skills evaluation on the basis that IQ may
also be discriminatory in the context of intellectual disability.
Additionally, commenters suggested that the language regarding tests
and assessments in paragraph (c) clarify that no test or assessment
should be the sole metric by which to evaluate parenting capabilities.
Further, commenters urged that we clarify that parental evaluations
should center on assessing parenting capabilities rather than solely
assessing or diagnosing parental disabilities.
Response: While the Department declines to prohibit the use of IQ
testing, we reiterate that parenting evaluations shall not be based
solely on a single general intelligence quotient or measure of the
person's disability, rather than their parenting ability. Recognizing
the critical role of parental evaluation in many child welfare
services, we have added language to clarify that evaluations and risk
assessments must be tailored to assess parenting capabilities and
support needs, rather than solely evaluating a parent's disability. For
greater clarity about the application of nondiscrimination requirements
to parenting evaluations, we have revised the text of the section as
described in the summary of regulatory changes for this section.
Comment: Many commenters urged parental assessments to consider the
availability of natural supports, such as friends and family, who can
help a parent with child-rearing responsibilities. Many other
commenters cited the importance of considering other supports, such as
personal assistants, assistive technology, and parent education
programs, in assessing parental capabilities.
Response: The Department agrees with commenters that a
nondiscriminatory assessment of parenting capabilities may need to
consider natural and paid supports as reasonable modifications that may
be used in meeting evaluation criteria. For all recipients, the
determination of whether parents are ``qualified'' must be consistent
with the definition of ``qualified individual with a disability'' in
Sec. 84.10 which states that an individual with a disability may meet
the essential eligibility requirements for programs or services with or
without reasonable modifications.
Comment: Other commenters noted that functional parenting
evaluations should be designed with input from parents with
disabilities, who are familiar with the supports and adaptations that
can help a parent succeed.
Response: The Department supports this suggestion of a potential
best practice for child welfare recipients but declines to include it
in the regulation in order to give recipients flexibility in how
effective functional parenting evaluations are designed. We will
consider future guidance on how child welfare recipients can
incorporate the input and perspective of individuals with disabilities
in their policies and procedures.
Algorithms
Comment: We received many comments about discrimination in
algorithms used by child welfare services. Several commenters
highlighted that the algorithms have the potential to discriminate on
the basis of disability and other protected classes, and that
algorithms can be discriminatory on their face or by producing
unlawfully biased products or outcomes.
Response: The Department recognizes this rapidly evolving area of
concern. As noted earlier above, section 504 prohibits a recipient from
discriminating on the basis of disability, and this encompasses
discrimination through a recipient's use of algorithms. This protection
would also extend to a child welfare agency's use of algorithmic
decision-making tools. We continue to collect information and will
consider developing additional guidance, consistent with Executive
Orders related to algorithms and artificial intelligence.\64\ We also
requested information from the public on this issue above.
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\64\ See, e.g., E.O. 14110, Safe, Secure, and Trustworthy
Development and Use of Artificial Intelligence, 88 FR 75191 (Nov. 1,
2023).
---------------------------------------------------------------------------
Training
Comment: Several commenters asked that the rule mandate training
related to reasonable modifications, effective communications, and/or
disability culture for child welfare staff and foster families.
Commenters requested training from the Department for child welfare
agencies on how to implement policies and practices in compliance with
this section.
Response: Due to the administrative challenge of mandating a single
set of training requirements for all recipients, and because doing so
is beyond the scope of this rulemaking, we decline to impose specific
training requirements and instead leave the details of the specific
administrative procedures for ensuring recipient staff's compliance
with this section to the discretion of the recipient. However, the
Department acknowledges that training on compliance with section 504
and best practices to eliminate barriers for disabled parents and
children may help agencies comply with the provisions in this final
rule. The Department remains committed to providing technical
assistance and education and will consider developing additional
guidance as needed, in coordination with ACF.
Summary of Regulatory Changes
For the reasons set forth above and considering comments received,
we are finalizing Sec. 84.60 with the following changes: First, we are
revising paragraph (b)(2) to clarify that all services offered or
provided by the child welfare entity are covered. An additional example
of ``family preservation'' is added as well as the clarifying phrase,
``any and all services provided by a child welfare agency, including
but not limited to. . . .'' The paragraph now reads: ``Deny a qualified
parent with a disability an opportunity to participate in or benefit
from any and all services provided by a child welfare agency, including
but not limited to, family preservation and reunification services
equal to that afforded to persons without disabilities.'' Second, we
are adding a new paragraph (b)(5) to clarify that recipients may not
require, on the basis of a child's disability, custody relinquishment,
voluntary placement, or other forfeiture of parental rights in order
for the child to receive services. The new paragraph reads: ``Require
children, on the basis on the disability, to be placed outside the
family home through custody relinquishment, voluntary placement, or
other forfeiture of parental rights in order to receive necessary
services.''
Third, we are revising paragraph (c) to clarify that evaluations
and risk assessments must be tailored to assess parenting capabilities
and support needs, rather than the disability itself. The new paragraph
provides that a recipient to which the subpart applies shall establish
procedures for referring to qualified professionals for evaluation
[[Page 40108]]
those individuals, who, because of disability, need or are believed to
need adapted services or reasonable modifications. A recipient shall
also ensure that tests, assessments, and other evaluation tools and
materials used for the purpose of assessing or evaluating parenting
ability are based in evidence or research, are conducted by a qualified
professional and are tailored to assess actual parenting ability and
specific areas of disability-related needs. Parenting evaluations must
be fully accessible to people with disabilities and shall not be based
on a single general intelligence quotient or measure of the person's
disability, rather than their parenting ability. Assessments of parents
or children must be individualized and based on the best available
objective evidence.
Subpart G--General Requirements
Subpart G contains general prohibitions and eight specific sections
on various topics.
General Prohibitions Against Discrimination (Sec. 84.68)
Proposed Sec. 84.68 retained several of the general prohibitions
in the existing rule and added many provisions for consistency with the
ADA title II regulations. Comments received on provisions contained in
Sec. 84.68 are set forth below.
General Prohibitions (Sec. 84.68(a))
Comment: Many commenters supported inclusion of this section to
ensure that the section 504 regulations will be enforced in a fair and
transparent manner. Others asked us to make clear that all of these
prohibitions apply to the medical treatment section.
Response: We appreciate commenters' support for this provision. In
fact, the general prohibitions in this section apply throughout the
rule and we have added a statement to that effect specifically in the
medical treatment section.
Meaning of Solely (Sec. 84.68(a))
In its section 504 NPRM, the Department proposed to add ``solely''
in the language stating section 504's general prohibition against
discrimination at Sec. 84.68(a). That word is not included in the
parallel provision of the Department's existing section 504 rule at
Sec. 84.4(a). The Department noted that this addition was a technical
change to make the regulation's language consistent with the general
nondiscrimination language of the statute, and that the language does
not exclude the forms of discrimination delineated throughout the rule.
Comments: A number of commenters, including disability rights and
civil rights legal organizations, a State Attorney General's office,
and a member of Congress, expressed concern with the Department's
proposed approach. Some asked that, because the word ``solely'' in
section 504 has become a battleground in court cases that threaten to
limit disability rights protections, HHS should provide additional
regulatory language and guidance to reflect case law, statutory
purpose, and congressional action, and to clarify that ``solely'' does
not limit prohibited conduct to intentional discrimination. Commenters
noted that the Department's preamble language is helpful but suggested
that the Department should include regulatory text to ensure that its
interpretation has the full force and effect of law. Some commenters
referenced a brief filed by the United States in the Supreme Court \65\
and, using that brief as a template, suggested that the Department
should state that ``solely on the basis of disability'' refers to a
causal relationship between the discrimination alleged and the
disability, and includes discrimination that results from ``benign
neglect,'' indifference, and unintentional disparate-impact
discrimination.
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\65\ U.S. Dep't of Justice, Brief for the United States as
Amicus Curiae, CVS Pharmacy, Inc. v. Doe, No. 20-1374 (U.S. Oct. 28,
2021).
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Response: The Department agrees that the addition of the word
``solely'' in Sec. 84.68(a) should not limit section 504 to
intentional discrimination claims, and the Department did not intend to
impose such a limitation in the proposed rule. The Department
understands commenters' concern that making that change in the manner
intended by the Department without including language in the regulatory
text itself invites confusion and possible misinterpretation. We want
to ensure the addition of the word ``solely'' does not alter the
Department's 46-year history of interpretation of the reach of its
section 504 rule.
There is considerable support for the view that section 504 is not
limited to intentional discrimination. Almost forty years ago, the
Supreme Court ``assume[d] without deciding'' that section 504 prohibits
both intentional discrimination based on disability, as well as actions
that have a discriminatory impact on people with disabilities,
notwithstanding a lack of invidious intent.\66\ The Court in Alexander
v. Choate looked to the statements by members of Congress at the time
of section 504's enactment and the experience of Federal agencies that
found that some types of discrimination against people with
disabilities, like those resulting from architectural barriers, were
``primarily the result of apathetic attitudes rather than affirmative
animus.'' \67\ The Court noted that ``[i]n addition, much of the
conduct that Congress sought to alter in passing the Rehabilitation Act
would be difficult if not impossible to reach were the Act construed to
proscribe only conduct fueled by a discriminatory intent.'' \68\ In the
years following Choate, the Circuits have uniformly agreed that the
failure to reasonably accommodate the disability of an otherwise
qualified individual is a form of discrimination prohibited by section
504,\69\ and a majority of those courts have also applied or expressed
support for a disparate impact theory as well.\70\
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\66\ Alexander v. Choate, 469 U.S. 287, 295 (1985)
(``Discrimination against the handicapped was perceived by Congress
to be most often the product, not of invidious animus, but rather of
thoughtlessness and indifference--of benign neglect.'').
\67\ Id. at 296.
\68\ Id. at 296-97.
\69\ See, e.g., Wynne v. Tufts Univ. Sch. of Med., 932 F.2d 19,
23-26 (1st Cir. 1991); Henrietta D. v. Bloomberg, 331 F.3d 261, 276-
77 (2d Cir. 2003); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296,
306 (3d Cir. 1999); Basta v. Novant Health Incorp., 56 F.4th 307,
315 (4th Cir. 2022); J.W. v. Paley, 81 F.4th 440, 450 (5th Cir.
2023); Doe v. BlueCross BlueShield of Tenn., Inc., 926 F.3d 235, 243
(6th Cir. 2019); Washington v. Indiana High Sch. Athletic Ass'n,
Inc., 181 F.3d 840, 847 (7th Cir. 1999); Mershon v. St. Louis Univ.,
442 F.3d 1069, 1076-77 (8th Cir. 2006); A.G. v. Paradise Valley
Unified Sch. Dist. No. 69, 815 F.3d 1195, 1204 (9th Cir. 2016);
Cinnamon Hills Youth Crisis Ctr., Inc. v. Saint George City, 685
F.3d 917, 919 (10th Cir. 2012) (Gorsuch, J.); L.E. by and through
Cavorley v. Superintendent of Cobb Cty. Sch. Dist., 55 F.4th 1296,
1301 (11th Cir. 2022); Chenari v. George Washington Univ., 847 F.3d
740, 746-47 (D.C. Cir. 2017).
\70\ See, e.g., Ruskai v. Pistole, 775 F.3d 61, 78-79 (1st Cir.
2014); Nathanson v. Medical Coll. of Pa., 926 F.2d 1368, 1384 (3d
Cir. 1991); Brennan v. Stewart, 834 F.2d 1248, 1261-1262 (5th Cir.
1988); McWright v. Alexander, 982 F.2d 222, 228-229 (7th Cir. 1992);
Mark H. v. Lemahieu, 513 F.3d 922, 936-937 (9th Cir. 2008); Robinson
v. Kansas, 295 F.3d 1183, 1187 (10th Cir. 2002), cert. denied, 539
U.S. 926 (2003); American Council of the Blind v. Paulson, 525 F.3d
1256, 1268-1269 (D.C. Cir. 2008). But see Doe v. BlueCross
BlueShield of Tenn., Inc., 926 F.3d 235, 241 (6th Cir. 2019).
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The Department also finds support for this approach in the recent
position of the United States its amicus brief in the Supreme Court in
CVS Pharmacy, Inc. v. Doe.\71\ That brief notes that the language in
section 504 is written in the passive voice and makes no reference to
any specific actor and accordingly no reference to any actor's intent.
Thus, the use of ``solely'' ``is most naturally read to focus on the
causal link between the
[[Page 40109]]
plaintiff's disability and particular undesired effects, rather than on
the motives or intent of the defendant.'' \72\
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\71\ U.S. Dep't of Justice, Brief for the United States as
Amicus Curiae, CVS Pharmacy, Inc. v. Doe, No. 20-1374 (U.S. Oct. 28,
2021).
\72\ Id. at 6-7.
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In determining the Department's interpretation of the meaning of
``solely,'' the Department looks to the types of discriminatory
practices that have been part of the Department's section 504
regulation since 1977, including intentional discrimination, as well as
practices that have discriminatory effects. Thus, the section 504
regulation would cover the denial of health care services to a patient
who uses a wheelchair and is unable to reach their doctor's office
because it is only accessible by stairs, or a person who is deaf who is
unable to communicate his symptoms to emergency room personnel at the
county hospital because of the absence of sign language interpreters.
The Department finds compelling the position taken by the United
States in its CVS amicus brief which focused on the causal link between
the plaintiff's disability and nature of the alleged discriminatory
practice, ``rather than on the motives or intent of the defendant.''
\73\ The United States provided the following explanation in its brief
in CVS Pharmacy, Inc. v. Doe:
---------------------------------------------------------------------------
\73\ Id.
If a pharmacy requires customers to fill out a paper form to
obtain in-network prices for a drug, a blind customer who is
otherwise eligible for in-network prices but is unable to complete
the form is ``being denied the benefit solely by reason of her
disability.'' The causal link that the statute requires is a link
between the customer's disability and her lack of access to program
benefits. That causal connection can exist, and can reliably be
established, even if the pharmacy adopted the paper-form requirement
for reasons unrelated to its exclusionary effect on blind
persons.\74\
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\74\ Id. at 14.
The Department shares this view as to the meaning of ``solely'' in
the section 504 regulation. In light of this explanation of our
interpretation of the word ``solely,'' as discussed in the NPRM, we
find it unnecessary to make any changes in the regulatory text.
Specific Prohibitions
Proposed Sec. 84.68(b)(1)(i) through (vii) listed a series of
prohibitions that apply to recipients directly or through contractual,
licensing, or other arrangements. Discussed below are comments that we
received on the provisions in this section.
Contractual Arrangements (Sec. 84.68(b)(1)(i))
This section states that a recipient, in providing any aid,
benefit, or service, may not, directly or through contractual,
licensing, or other arrangement, on the basis of disability, deny a
qualified individual with a disability the opportunity to participate
in or benefit from the aid, benefit, or service.
Comment: Several commenters asked about the applicability of
section 504 when a recipient contracts out certain activities to
another entity and the activities of that other entity are not in
compliance with section 504. Some requested that we make it clear that
recipients cannot contract away their obligations when overseeing large
programs such as Medicaid. Others asked us to clarify that recipients
have affirmative responsibilities to ensure nondiscrimination by
agencies with whom they contract.
Response: We proposed in Sec. 84.68(b)(1) to make clear that when
a recipient contracts out activities, that recipient remains
responsible for ensuring that the entity with whom it contracts
complies with section 504. The size of that entity is irrelevant; the
requirements are the same. For more information about Federal financial
assistance and contracts, please see the discussion of Federal
financial assistance in Sec. 84.10, the Definitions section.
Significant Assistance (Sec. 84.68(b)(1)(v))
We proposed in this section to provide that a recipient may not aid
or perpetuate discrimination by providing significant assistance to an
entity that discriminates on the basis of disability in providing any
aid, benefit, or service to beneficiaries of the recipient's program.
Comment: A commenter noted that many recipients of Federal
financial assistance from the Department provide significant financial
support to entities that engage in unlawful disability-based
discrimination. The commenter requested additional guidance on the
recipient's obligations in this instance.
Response: Section 84.68(b)(1)(v) makes clear that recipients retain
responsibility for ensuring that entities to which they provide
significant assistance comply with section 504.
Methods of Administration (Sec. 84.68(b)(3))
This section provides 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 on the basis of
disability or (2) that have the purpose or effect of defeating or
substantially impairing accomplishment of the objectives of the program
or activity with respect to individuals with disabilities 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.
Comments: Many commenters strongly supported this section. One
commenter noted the importance of this prohibition as applied to
clinical trial participants who should be provided with continuing care
and, where possible, to continued access to study products. That
commenter said that methods of allocation of those products and scarce
resources should be subject to this provision. Another commenter said
that they strongly support Sec. 84.68(b)(3) because it emphasizes the
prohibition of discriminatory methods in the allocation of scarce
medical resources. An organizational commenter said that this
provision, along with the reasonable modifications section in Sec.
84.68(b)(7), represent commendable steps toward safeguarding the rights
of individuals in allocating resources. Another commenter mentioned
that this regulation should prohibit the provision of separate gowns
and visiting procedures for individuals with substance use disorders.
Comment: We appreciate the commenters' support and agree with the
importance of applying the prohibition against methods of
administration that discriminate in the clinical studies field as well
as throughout this rule. With regard to the organizational commenter
who suggested that there not be separate gowns and visiting procedures
for individuals with substance use disorders, the Department declines
to make that change because under certain circumstances, using
different gowns or visiting procedures may not constitute
discrimination. However, we note that pursuant to Sec. 84.68(b)(7),
recipients must make reasonable modifications in policies, practices,
or procedures when 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.
Licensing and Certification (Sec. 84.68(b)(6))
This section states that 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
[[Page 40110]]
discrimination on the basis of disability, although the programs or
activities that are licensed or certified by the recipient are not, by
themselves, covered by this part.
Comment: A commenter said that many health care licensing entities
discriminate against individuals who use prescribed medicines to treat
SUD.
Response: Individuals must generally be permitted to take licensing
or certification exams if they are qualified as defined in Sec. 84.10.
That section defines a qualified individual with a disability as an
individual who, with or without reasonable modifications, removal of
barriers, or provision of auxiliary aids and services, meets the
essential eligibility requirements to take the exam. In the event of
noncompliance, individuals can file complaints with the Department if
they see discrimination occurring even if they have not personally
experienced discrimination. Procedures for filing complaints are set
forth in Sec. 84.98.
Reasonable Modifications (Sec. 84.68(b)(7))
Section 84.68(b)(7) states that recipients must 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.
Most of the comments that we received on this section fall into one
of two categories: masks and other infection mitigation measures and
supported decision-making. We discuss each topic separately.
Masks and Other Infection Mitigation Measures
Comment: We received many comments on this issue. Multiple
commenters said that the discontinuation of some measures used to
prevent COVID-19 discriminates against those individuals with
disabilities who are particularly vulnerable to severe disease. Many
commenters only discussed masks and many commenters requested that the
Department provide clear guidance as to what is required with regard to
masks and other infection mitigation measures. Various commenters
described the response received when they asked health care staff to
wear masks, including having their requests denied, and being met with
shaming. The Department also received a few comments from individuals
with hearing impairments who said that the masks discriminated against
them because they prevented lip reading.
Multiple commenters argued that the failure to provide mitigation
measures constitutes a violation of Sec. 84.56, which prohibits
discrimination in medical treatment. Several commenters suggested
possible reasonable modifications, including allowing individuals at
risk of infection to wait in their cars for appointments, providing
separate waiting rooms and separate entrances, scheduling appointments
before or after hours or as the first appointment of the day, providing
alternate spaces to wait for appointments, and using telehealth where
appropriate.
Response: We appreciate the many commenters who shared their
experiences. Regarding infection mitigation measures in general,
individuals may be able to obtain reasonable modifications to policies,
practices, and procedures such as those mentioned above if such
modifications are necessary to avoid discrimination on the basis of
disability, unless the recipient can demonstrate that the modifications
would fundamentally alter the nature of the program or activity.
Supported Decision-making
Comments: The Department received many comments, mostly from
disability rights organizations, that were appreciative and supportive
of the preamble discussion of the reasonable modification of supported
decision-making. Commenters pointed out that individuals with
disabilities are routinely subjected to overly restrictive
guardianships where someone appointed by a judge makes decisions on
behalf of the individual with a disability. Many noted that supported
decision-making allows the individual with disabilities to understand,
make, and communicate their preferences and choices in consultation
with their supporter. Others described supported decision-making as a
powerful tool that allows for self-determination. One commenter
mentioned that the implementation of supported decision-making
processes does not pose an undue obstacle for recipients but, rather,
it increases a person's ability to participate through informed choice.
Several commenters asked that supported decision-making be
mentioned in the preamble to the medical treatment section and
throughout the preamble, particularly as it relates to consent, while
others requested that it be included in the text of the regulation.
One organization requested that the Department develop training
materials so that supported decision-making is more accessible and
affordable for recipients. They suggested that the training materials
address privacy issues and the different ways that a recipient can
recognize a supported decision-maker as the personal representative or
otherwise authorized third party who can directly receive information.
They also suggested development of a template for use by recipients.
Response: We appreciate the uniformly positive input that we
received on the reasonable modification of supported decision-making.
The Department has explained how the concept of supported decision-
making may apply to medical treatment in the discussion of medical
treatment and in other places as appropriate. The preamble to Sec.
84.56(c), the consent paragraph in the medical treatment section,
discusses examples of how supported decision-making applies to medical
treatment decisions, noting that it can be crucial in ensuring that
individuals with disabilities are giving informed consent. Although we
generally agree with the points made by the commenters in support of
supported decision-making, we decline to add mention of this reasonable
modification in the regulatory text of the consent provision. We note
that the reasonable modification provision is in subpart G, General
Requirements and, as such, already applies to the consent provision. It
would be duplicative to add another reference to the reasonable
modification concept in other provisions of the final rule.
Accordingly, we are finalizing Sec. 84.68(b)(7) as proposed without
modifications.
Summary of Regulatory Changes
For the reasons set forth above and considering comments received,
we are finalizing Sec. 84.68 as proposed with no modifications.
Illegal Use of Drugs (Sec. 84.69)
In Sec. 84.69(a)(1), we proposed to state that except as provided
in paragraph (b), this part does not prohibit discrimination based on
current illegal use of drugs.
In Sec. 84.69(a)(2), we proposed to prohibit discrimination based
on illegal use of drugs against an individual who is not engaging in
current illegal use of drugs and who has successfully completed a
supervised drug rehabilitation program or has otherwise been
rehabilitated successfully; is participating in a supervised
rehabilitation program; or is erroneously regarded as engaging in such
use.
[[Page 40111]]
In Sec. 84.69(b), we proposed to prohibit a recipient from
excluding an individual based on illegal use of drugs from the benefit
of programs and activities providing health services and services
provided under subchapters I, II, and III of the Rehabilitation Act,
which includes, among other things, vocational rehabilitation programs.
This provision comes directly from the statute, 29 U.S.C. 705(20)(C).
This provision differs from a similar provision in the ADA title II
statute and regulations, which prohibit denial of health services or
services provided in connection with drug rehabilitation, at 42 U.S.C.
12210(C) and 28 CFR 35.131(b).
Proposed Sec. 84.69(c)(1) addressed drug testing. It proposed to
make clear that this part does not prohibit a recipient from adopting
or administering reasonable policies or procedures including drug
testing designed to ensure that an individual who formerly engaged in
illegal use of drugs is not now engaging in illegal use of drugs.
In Sec. 84.69(c)(2), we proposed to provide that nothing in this
section shall be construed to encourage, prohibit, restrict, or
authorize the conduct of testing for the illegal use of drugs.
The comments and our responses regarding Sec. 84.69 are set forth
below.
Comment: Many commenters had concerns about this proposed section.
As discussed under the definition of ``illegal use of drugs'' in Sec.
84.10, they said that the regulation's definition of ``current''
represents an outdated view of substance use disorder. Similarly, they
believe that the definition of a ``supervised drug rehabilitation
program'' in Sec. 84.69(a)(2) has changed over the years. They urged
that the term be interpreted broadly to include treatment for a
substance use disorder received under the supervision of a medical
provider or licensed professional. They noted that since the
Rehabilitation Act was enacted in 1973, treatment for individuals with
SUD has changed radically and no longer comports with how many
individuals receive their treatment. Treatment is often provided in
primary care, psychology, and other clinical practices as well as,
increasingly, online. Some of these are not stand-alone drug
rehabilitation programs, and many involve continuation of treatment on
an outpatient basis. Commenters asked that we make explicit that the
term ``supervised rehabilitation program'' means any setting where SUD
treatment is received under the supervision of a medical provider or
other licensed professional. Some suggested that the term be defined in
the regulation. Others recommended that the preamble make it clear that
the term is to be read broadly and inclusively, reflecting modern day
SUD treatment.
Response: Congress has not amended 29 U.S.C. 705(20)(C)(ii), on
which the current regulatory text is closely modelled. Because the
Department remains bound by the current statutory text, we decline to
revise the regulatory language. Although the Department agrees that
treatment for SUD has evolved since the enactment of the Rehabilitation
Act, we agree with commenters that the best reading of the statutory
terms ``supervised drug rehabilitation program'' and ``supervised
rehabilitation program'' generally encompass these modern day
treatments of substance use disorders.
Comment: Many commenters expressed concerns about Sec.
84.69(b)(2). That section states that a drug rehabilitation program may
deny participation to individuals who engage in current illegal use of
drugs while they are in the program. As with the meaning of
``supervised rehabilitation program'' and ``current'' illegal use of
drugs, they believe this section is similarly outdated and does not
comport with modern understanding of drug treatment and recovery.
Several commenters noted the irony that the provision allows health
care providers to deny treatment to an individual because they are
experiencing symptoms of the very disease for which they are seeking
help. Some commenters suggested that before denying entrance to a
program, recipients should be required to make an individualized
determination about whether participation in the program is warranted.
Response: Section 504 provides that the term ``individual with a
disability'' ``does not include an individual who is currently engaging
in illegal use of drugs, when a covered entity acts on the basis of
such use.'' \75\ We have retained this language, consistent with the
statutory language.
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\75\ 29 U.S.C. 705(20)(C).
---------------------------------------------------------------------------
Comment: Several commenters expressed concerns about discriminatory
treatment of individuals with SUD, whether the substances are legal or
illegal, who are being denied myriad health services. Many provided
examples of individuals who were excluded from, for example, nursing
homes and emergency rooms at hospitals because of SUD as well as
denials of life-saving surgery and organ transplantation. Others said
that mental health centers sometimes have blanket policies of denying
treatment to all individuals with SUD.
Response: A denial of treatment to individuals with SUD would
violate the medical treatment requirement, Sec. 84.56(b)(1), if it is
based on biases or stereotypes or any of the other prohibited bases
listed in that paragraph. It would also violate Sec. 84.56(b)(2),
denial of treatment for a symptom or condition separate from an
underlying disability, if a recipient is refusing to provide admission
or treatment because of the underlying disability as an individual with
SUD. If the denial of treatment was based on or motivated by the fact
that the individual is currently engaged in illegal use of drugs, it
would violate Sec. 84.69(b), which provides that an individual
currently engaged in illegal use of drugs shall not be excluded from
the benefits of health services on the basis of their illegal use of
drugs if he or she is otherwise entitled to such services.
However, that section must be read in conjunction with Sec. 84.53
which provides in this final rule that recipients who operate any type
of health care facility may not discriminate in admission or treatment
against an individual with a substance or alcohol use disorder. This
prohibition applies to all individuals with SUD, whether engaged in
illegal use of drugs or not. See Sec. 84.69(b), prohibiting the denial
of health services and services provided under the Rehabilitation Act
and discussion of Sec. 84.53 for more information about that section.
Summary of Regulatory Changes
For the reasons set forth above and considering the comments
received, we are finalizing Sec. 84.69 as proposed with no
modifications.
Maintenance of Accessible Features (Sec. 84.70)
This proposed section tracks the ADA title II and title III
regulations on maintenance of accessible features.
Proposed Sec. 84.70(a) required that recipients 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.
Proposed Sec. 84.70(b) stated that the section does not prohibit
isolated or temporary interruptions in service or access due to
maintenance or repairs.
Proposed Sec. 84.70(c) stated that 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
[[Page 40112]]
accordance with the requirements of the 2010 Standards.
The comments and our responses regarding Sec. 84.70 are set forth
below.
Comment: We received many comments, including from several
organizations representing individuals with disabilities, requesting
that this section be revised to encompass all accessibility features
and disability modifications, including auxiliary aids and services.
Commenters also requested a statement in the regulation that repeated
mechanical failures for any reason constitutes a violation of section
504.
One commenter expressed concerns that the rule appears to focus
only on mechanical failures. The commenter urged us to emphasize that
the maintenance requirement applies not only to mechanical failures but
also to interruptions in service or access caused by weather events
such as fires, floods, and excessive heat.
Still another commenter said that the regulation should address
recipients' responsibilities to continue to provide access to services
while interruptions persist. The commenter suggested that language be
added to the text of the regulation to clarify that whenever a
temporary interruption might deny individuals with disabilities' access
to programs and activities, the recipient must provide advance notice
of the temporary interruption and must also provide reasonable
modifications to individuals with disabilities until the maintenance or
repairs are resolved.
Response: The Department appreciates all the commenters' feedback.
However, we respectfully disagree with the commenters who suggested
that the maintenance requirement be extended to include auxiliary aids
and services. Requirements concerning auxiliary aids are contained in
Sec. 84.77(b) of the communications subpart. That section requires
that recipients provide auxiliary aids and services where necessary to
afford an equal opportunity to participate in a program or activity. A
recipient would likely be in violation of that section if it were to
fail to provide an appropriate auxiliary aid or service or if it were
to provide one that was not in working order. Accordingly, it is not
necessary to add a reference to auxiliary aids and services in Sec.
84.70.
Comment: Some commenters requested a statement in the rule that
repeated mechanical failures for any reason violate section 504.
Response: Section 84.70(b) states that isolated or temporary
interruptions in access or service would not be considered violations
of this part. Implicit in that statement is that repeated interruptions
could still violate the requirements of this part. 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.
In response to the concern that the regulation is focused on
mechanical failures and does not recognize other causes for temporary
interruptions such as those that are weather-related, we note that the
preamble to the proposed rule makes clear that the requirement goes
beyond mechanical failures. The preamble gives the following examples
of situations that would violate the rule and that do not involve
mechanical failures: storing excess furniture or supplies in the
larger, accessible toilet stall; putting potted plants in front of
elevator buttons; and placing ploughed snow in an accessible parking
spot.
With regard to the commenter who asked that the rule require
advance notice of temporary interruptions and provision of reasonable
modifications in such instances, we agree that reasonable modifications
can be requested in the event of temporary interruptions. Section
84.68(b)(7) requires that recipients provide reasonable modifications
whenever necessary to provide an equal opportunity to benefit from its
programs or activities unless the recipient can demonstrate that making
the modifications would result in a fundamental alteration of the
program or activity. For example, an individual with a mobility
disability arrives at a building for a meeting with someone whose
office is on the fifth floor and discovers that the one accessible
elevator is out of service. A reasonable modification might be for the
person on the fifth floor to come downstairs and meet the individual
somewhere on the ground floor or in a nearby building. Providing notice
of a temporary interruption whenever possible is a best practice, but
not a requirement of section 504. For example, if a recipient knows
that an elevator will not be working during a certain time in the
future, it would be a good practice to put up a sign to that effect.
However, there may be times when advance notice is not possible such as
when an individual with a disability attempts to use a wheelchair lift
and a mechanical problem is discovered. In the event the recipient
knows in advance that there will be a temporary interruption in
service, is aware that an individual with a disability is scheduled to
come to the building, and has that person's contact information, it
would be helpful for the recipient to notify that individual in
advance. However, we decline to revise the rule to require such notice
since it is not always possible to do.
Summary of Regulatory Changes
For the reasons set forth above we are finalizing Sec. 84.70 as
proposed with no modifications.
Retaliation or Coercion (Sec. 84.71)
This section is identical to the retaliation provision in the ADA
title II regulations. Section 84.71(a) proposed to prohibit a recipient
from discriminating 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.
Section 84.71(b) proposed to prohibit a recipient from coercing,
intimidating, threatening, or interfering 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.
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. The proposed regulation had
another prohibition against intimidatory or retaliatory acts. Section
84.98 adopts the procedures of title VI of the Civil Rights Act of
1964. Section 80.7 of the title VI regulations (45 CFR 80.7) contains a
provision that is similar to Sec. 84.71(a) but includes a mandate that
the identity of complaints be kept confidential except to the extent
necessary to carry out the purposes of this part.
The comments and our responses to them regarding Sec. 84.71 are
set forth below.
Comment: We received supportive comments on this section. One
disability rights organization said that retaliation should be
prohibited in the strongest terms possible because it is very common
and very difficult to prove. Several individuals described their
experiences with retaliation when their complaints about alleged
discrimination were ignored.
Response: We appreciate the commenters' support of the section and
[[Page 40113]]
agree that protection against retaliation is crucial. We note that the
final rule retains in subpart K the adoption of title VI procedures. As
noted above, those procedures include another prohibition against
retaliation.
Summary of Regulatory Changes
For the reasons set forth above and considering the comments
received, we are finalizing Sec. 84.71 as proposed without
modification.
Personal Services and Devices (Sec. 84.72)
Proposed Sec. 84.72 was identical to the provision in the ADA
title II regulations, 28 CFR 35.135. It stated that this rule does not
require recipients to provide individuals with disabilities with
personal devices, such as wheelchairs; individually prescribed devices
such as prescription eyeglasses or hearing aids; readers for personal
use of study; or services of a personal nature, including assistance in
eating, toileting, or dressing. The NPRM also noted that where personal
services are customarily provided as part of a recipient's programs or
activities, then these personal services should also be provided to
persons with disabilities.\76\
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\76\ 88 FR 63478.
---------------------------------------------------------------------------
The comments and our responses to them regarding Sec. 84.72 are
set forth below.
Comment: Several commenters expressed concern that this provision
was written so broadly that it would interfere with the requirements in
other parts of the proposed rule, including the requirement to provide
reasonable assistance to persons using accessible medical equipment,
for example, including helping a person who uses a wheelchair to
transfer from their wheelchair to the exam table or diagnostic chair,
as well as the variety of obligations to provide auxiliary aids. An
organization representing persons who need communication tools and
supports noted that devices used for communication are often not
treated as covered auxiliary aids or services but as personal devices
and, as a result, are not provided to persons with communication needs
who require them to receive, for example, health care not as effective
as that provided to others. This comment suggested adding regulatory
text that, where personal devices and services are customarily provided
as part of a recipient's program or activities, then these personal
devices and services should also be provided to persons with
disabilities.
Response: The Department is aware that many programs funded by the
Department include, as a regular feature of the program, the provision
of personal care services. Hospitals, nursing homes, child welfare
services, and home and community-based services (HCBS), by their very
nature, routinely provide assistance in eating, dressing, and
toileting, the type of personal care services specifically not required
by this provision. The Department reiterates its statement from the
NPRM that where personal devices and services are customarily provided
as part of a recipient's program or activities, then these personal
devices and services should also be provided to persons with
disabilities. However, it is important to preserve parity with the ADA
regulations given Congress's intent that the ADA and section 504 be
interpreted consistently and to reduce confusion for both recipients
and individuals with disabilities. Therefore, the Department declines
to add this statement to the regulatory text but emphasizes that this
provision should not be interpreted as a blanket allowance for
recipients to deny personal devices and services to individuals with
disabilities that the recipient would customarily provide to
individuals without disabilities as part of its programs and
activities. The supplementary information accompanying DOJ's title III
ADA regulation includes this interpretation as well.\77\
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\77\ 28 CFR part 36, appendix C (1991) (addressing Sec. 36.306)
(``Of course, if personal services are customarily provided to the
customers or clients of a public accommodation, e.g., in a hospital
or senior citizen center, then these personal services should also
be provided to persons with disabilities . . .'').
---------------------------------------------------------------------------
Comment: Another commenter on Sec. 84.72 noted that the rule
should be changed to make clear that recipients cannot require persons
with disabilities to be separated from their own personal devices and
to then function without their devices, for example, prohibiting
persons who use wheelchairs from being told that they cannot take their
own wheelchairs with them when being transported to the hospital.
Response: The Department does not believe it is necessary to add
regulatory text to address this situation, but notes that there are
circumstances in which recipients are prohibited from separating
persons with disabilities from their personal devices that they need to
function. For example, an ambulance company that receives Federal funds
from HHS is called to the scene of an automobile accident and is going
to take a person with a disability who uses a wheelchair to the
emergency room of a hospital. The ambulance service, a recipient
subject to the general prohibitions against excluding individuals with
disabilities in Sec. 84.68, generally cannot pick up the person and
leave the wheelchair, an expensive piece of accessible personal
equipment, behind at the scene of the accident and expect the person
with the disability to recover their wheelchair. The Department
recognizes that there may be room or other limitations in the ambulance
itself, but that does not relieve the ambulance service of any
responsibility to assist in returning the wheelchair to the person with
a disability, which may be needed at the site where the person with the
disability is being transported. As a recipient, the ambulance service
is subject to all of the general prohibitions in Sec. 84.68 which
states that individuals with disabilities may not be excluded from
participation in or be denied the benefits of their programs or
activities. In situations like this, the ambulance company can have a
policy or agreement in place to deal with the transport of a wheelchair
that might not fit into the ambulance itself.
Similarly, in situations where a person with a speech disability
enters a hospital or a nursing home with their personal communication
device that they use because they cannot rely on speech alone to be
heard and understood by others, the recipient hospital or nursing home
must not separate the person from their device, which would deprive the
person with a disability of the ability to communicate with others. The
Department notes that DOJ has followed a similar policy in addressing
concerns where, for example, police may make an arrest of a wheelchair
user and must transport both the person and their accessibility
equipment to the police station.
Summary of Regulatory Changes
For the reasons set forth above and considering comments received,
we are finalizing Sec. 84.72 as proposed with no modifications.
Service Animals (Sec. 84.73)
Proposed Sec. 84.73 addressed service animals and tracks the ADA
title II regulations.\78\ Proposed Sec. 84.73(a) stated that generally
recipients shall modify its policies, practices, or procedures to
permit the use of a service animal by an individual with a disability.
The rule, in proposed Sec. 84.10, defined a service animal as any dog
that is individually trained to do work or perform tasks for the
benefits of an individual with a disability.
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\78\ 28 CFR 35.136.
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Proposed Sec. 84.73(b) contained detailed requirements for
recipients and
[[Page 40114]]
handlers of service animals, including when a recipient may ask an
individual with a disability to remove the service animal from the
premises (Sec. 84.73(b)), that the service animal shall be under the
control of its handler (Sec. 84.73(d)), that the recipient is not
responsible for the care and supervision of a service animal (Sec.
84.73(e)), that the recipient shall not ask about the nature or extent
of a person's disability, but may ask if the animal is required because
of a disability and what work or task the animal has been trained to
perform (Sec. 84.73(f)), 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 go (Sec.
84.73(g)), and that recipients are not allowed to require an individual
with a disability to pay a surcharge (Sec. 84.73(h)). Proposed Sec.
84.73(i) stated 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 and it provided assessment
factors to determine whether reasonable modifications can be made to
allow a miniature horse into a specific facility.
The comments and our responses regarding Sec. 84.73 are set forth
below.
General comment: The comments that the Department received on Sec.
84.73 were uniformly supportive. Commenters noted that DOJ's ADA
regulations were crafted through years of experience and a duly
compassionate outlook and that having the same service animal
regulation for section 504 as for title II of the ADA will provide
necessary clarity for persons who work with service animals and health
care and social service providers that receive Federal funding.
Comment: Some commenters recommended adding the example of
``carrying an individual's speech-generating device'' as an example of
the type of work or service that a service animal could be trained to
do.
Response: The Department agrees that service animals may be used to
assist persons with communication disabilities and that recipients
should be made aware of this possibility so that they do not
unnecessarily inquire of persons with communication disabilities about
the nature of the work that the service animal performs for the person.
However, the Department is not adding language to the regulatory text,
because adding phrases here that are not found in DOJ's ADA regulations
on service animals may cause confusion.
Comment: The Department received several comments on the use of
service animals in health care settings. An entity that operates a
hotline providing guidance to service animal handlers and to recipients
noted that over 70% of their callers addressed access challenges in
health care facilities due to the presence of service dogs.
Response: The Centers for Disease Control and Prevention (CDC)
notes there is no evidence that suggests that animals pose a more
significant risk of transmitting infection than people; therefore,
service animals should not be excluded from such areas unless a
patient's situation or a particular animal poses risk that cannot be
mitigated through reasonable measures.\79\ Thus, the Department notes
that under the final rule, a health care facility generally must permit
a person with a disability to be accompanied by a service animal in all
areas of the facility in which that person would otherwise be allowed.
There are some exceptions, however. Consistent with case law and CDC
guidance, it is generally appropriate to exclude a service animal from
limited-access areas that employ general infection-control measures,
such as operating rooms and burn units. Usually, a service animal may
accompany its handler to such areas as admissions and discharge
offices, the emergency room, inpatient and outpatient rooms, examining
and diagnostic rooms, clinics, rehabilitation therapy areas, the
cafeteria and vending areas, the pharmacy, restrooms, and all other
areas of the facility where health care personnel, patients, and
visitors are permitted without added precaution.
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\79\ Ctrs. for Disease Control & Prevention, Environmental
Infection Control Guidelines, Animals in Health-Care Facilities
(Nov. 5, 2015). https://www.cdc.gov/infectioncontrol/guidelines/environmental/background/animals.html.
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Comment: Several commenters asked for clarification on issues
related to the phrase ``under the control of its handler.'' Commenters
stated that this clarification should help prevent discrimination
against minors and persons with severe disabilities who are sometimes
viewed as incapable of acting as the handler of their own service dog
due to age or false assumptions and stereotypes about their disability.
Other commenters expressed concern about handlers who are not able to
physically control their service dog. Commenters noted that people with
mental and communication disabilities are increasingly using service
dogs and their handlers may not be able to issue verbal commands but
can control their service dog through gestures and nonverbal means.
Response: The Department agrees that the handler of a service
animal is most often an individual with a disability. The Department's
rule at Sec. 84.73(d) notes that one way for an individual with a
disability to exercise control over their service animal is by ``voice
control, signals, or other effective means.'' This language encompasses
gestures and nonverbal means of controlling a service dog.
Comment: Some commenters noted that some court decisions have
applied the concept of reasonable modification to Sec. 84.73(e), which
states that the recipient is not responsible for the care and
supervision of a service animal. The comments seek clarification that
providing some assistance to a person with a disability while they
handle or care for their service dog may be required as a reasonable
modification as long as it does not rise to the level of a fundamental
alteration and is consistent with the type of assistance provided to
other people with or without disabilities.
Response: The Department notes that DOJ in its ``Frequently Asked
Questions about Service Animals and the ADA,'' states that the handler
is responsible for caring for and supervising the service animal, which
includes toileting, feeding, and grooming.\80\ However, a school or
similar entity operating in the K-12 context may be required to provide
some assistance, which is short of care or supervision, to enable an
individual with a disability to handle their service animal.\81\
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\80\ U.S. Dep't of Justice, Frequently Asked Questions about
Service Animals and the ADA (2020), Question 9, https://www.ada.gov/resources/service-animals-faqs/.
\81\ U.S. Dep't of Justice, Frequently Asked Questions about
Service Animals and the ADA (2020), Question 27, https://www.ada.gov/resources/service-animals-faqs/.
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Recipients are not obligated to supervise or otherwise care for a
service animal. This guidance specifically addresses patients in
hospital care who have service animals with them in their hospital
room. It states that, if the patient is not able to care for the
service animal, the patient can make arrangements for a family member
or friend to come to the hospital to provide these services, as it is
always preferable that the service animal and its handler not be
separated.\82\ In addition, the CDC has stated that care of the service
animal remains the obligation of the person with the disability, not
the health care staff.\83\
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\82\ U.S. Dep't of Justice, Frequently Asked Questions about
Service Animals and the ADA (2020), Question 15, https://www.ada.gov/resources/service-animals-faqs/.
\83\ See Ctrs. for Disease Control & Prevention, Environmental
Infection Control Guidelines, Animals in Health-Care Facilities
(Nov.5, 2015) https://www.cdc.gov/infectioncontrol/guidelines/environmental/background/animals.html.
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[[Page 40115]]
Comment: Several commenters noted that the use of miniature horses
as a form of reasonable modification of policy has worked well with ADA
title II rules and should be added to the Department's section 504
rule. A trade organization noted that, while miniature horses can serve
persons with disabilities, they are legally recognized as livestock and
should be included as a separate entity from service animals. A legal
rights advocacy organization stated that miniature horses may work best
for higher weight or tall individuals, and stated the importance of
including obesity as covered by section 504, as that would help ensure
that higher weight individuals will be determined to be persons with
disabilities and entitled to reasonable modification.
Response: The Department agrees that miniature horses, under Sec.
84.73(i), are not included in the definition of service animal, which
is limited to dogs, and that they are legally recognized as livestock.
However, the regulatory text 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. In the discussion
of the definition of disability above at Sec. 84.4, the Department
noted that obesity could be considered a physical or mental impairment
and that, if it substantially limited one or more of a person's major
life activities, would qualify as a disability. In this case, a
qualifying higher weight individual may be able to avail themselves of
the use of miniature horses as a form of reasonable modification of
polices, practices, or procedures.
Summary of Regulatory Changes
For the reasons set forth above and considering the comments
received, we are finalizing Sec. 84.73 as proposed with no
modifications.
Mobility Devices (Sec. 84.74)
This section in the section 504 NPRM was identical to the ADA title
II regulation.\84\ Proposed Sec. 84.74(a) provided that recipients
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.
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\84\ 28 CFR 35.137.
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Section 84.74(b) proposed to require a recipient to 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. The rule, in proposed Sec. 84.10,
defined other power-driven mobility device to mean any mobility device
powered by batteries, fuel, or other engines--whether or not designed
primarily for use by individuals with mobilities disabilities--that is
used by individuals with mobility disabilities for the purpose of
locomotion.
Proposed Sec. 84.74(b)(2) listed the factors that recipients would
be required to consider in determining whether to permit other power-
driven mobility devices on their premises, including the type, size,
weight, dimensions, and speed of the device; the volume of pedestrian
traffic; the facility's design; whether the facility is indoors or
outdoors; the availability of storage space if requested; and whether
the use of the device creates a substantial risk of serious harm to the
environment or natural and cultural resources.
Proposed Sec. 84.74(c)(1) would prohibit a recipient from asking
an individual using a wheelchair or other power-driven mobility device
questions about the nature and extent of the individual's disability.
Proposed Sec. 84.74(c)(2) would permit a recipient to 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, including a valid, State-issued parking placard or other
State-issued proof of disability, or in lieu of such documents, a
verbal representation, not contradicted by observable fact, that the
other power-driven mobility device is being used for a mobility
disability.
The comments and our responses to them regarding Sec. 84.74 and
related terms are set forth below.
Comment: Commenters were generally appreciative of the Department's
decision to adopt the approach taken by DOJ on mobility devices in
Sec. 84.74. Some commenters expressed concern that the phrase ``other
power-driven mobility devices'' in Sec. 84.74(b) could be interpreted
to include scooters and power chairs commonly used by persons with
disabilities, so they recommended that the Department clarify that
higher capacity wheelchairs and scooters are covered in Sec. 84.74(a),
and not in Sec. 84.74(b). A commenter providing health care made the
case that the Department should exempt health care facilities from
having to admit devices like Segways[supreg], golf carts, and other
motorized devices because allowing them into the facility will put
patients in harm's way. One commenter noted that some recipients,
including nursing homes, use blanket bans of power wheelchairs to
exclude individuals with disabilities from programs and services.
Response: The Department notes that proposed Sec. 84.74(a)
specifically concerns ``wheelchairs'' and that the definition of
``wheelchair'' in Sec. 84.10 includes a ``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 includes scooters and power wheelchairs that are
specifically designed for the use of persons with mobility
disabilities. It contrasts with the definition of other power-driven
mobility devices, which are not necessarily designed primarily for the
use of persons with mobility disabilities. This definition of other
power-driven mobility devices encompasses golf carts and electronic
personal assistance mobility devices such as the Segway[supreg]. Thus,
Sec. 84.74(a) includes scooter and power wheelchairs designed for the
use of persons with mobility disabilities, and Sec. 84.74(b) includes
golf carts, Segways[supreg], and other similar motorized devices that
have not been primarily designed for persons with mobility
disabilities.
The Department believes that the processes established by Sec.
84.74 will allow hospitals and other recipients to make reasonable and
reasoned decisions about whether and how to allow other power-driven
mobility devices into their facilities. Section 84.74(b)(1) provides
that recipients 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 the
recipient can demonstrate that the class of such devices cannot be
operated in accordance with legitimate safety requirements. Section
84.74(b)(2) provides a list of assessment factors that recipients can
use to consider in making determinations concerning whether and how the
recipient will allow different types or classes of other power-driven
mobility devices into its facilities. The Department believes that this
process will allow hospitals and others to develop and issue policies
that balance the need for patient safety with the needs of persons with
disabilities who
[[Page 40116]]
use other power-driven mobility devices in their facilities.
For example, using these assessment factors, a county hospital may
decide that it can allow electronic personal assistance mobility
devices (EPAMDs), which are other power-driven mobility devices under
proposed Sec. 84.10 in any areas open to pedestrian use, including the
cafeteria and general patient rooms, but not in other specified areas
of the hospital (e.g., the emergency room or other areas with high
traffic and cramped quarters), as long as operators do not operate the
device faster than pedestrians are walking. A recipient might also
decide, using the assessment factors, that due to air quality concerns,
for example, gas-powered devices would not be allowed in the hospital's
indoor facilities; or that certain classes of devices, such as golf
carts, could not be allowed for safety reasons, because the facility's
corridors or aisles are not wide enough to accommodate those vehicles
and are heavily trafficked. Because Sec. 84.74 establishes a procedure
and sets forth appropriate assessment standards for recipients, the
Department does not view it as necessary to exempt health care
facilities from the requirements of this section in its final rule. In
addition, the Department notes that health care facilities, both public
and private, have already been subject to this same provision since
2010 under DOJ's ADA regulations for titles II and III.
As to the comment on blanket bans on the use of motorized
wheelchairs in nursing homes, the Department notes that such bans may
violate section 504. The Department's final rule requires recipients to
allow the use of wheelchairs, including power-driven ones, and contains
several disability-related provisions that require a recipient to
tailor its approach based on the specific circumstances rather than
apply blanket bans. For example, recipients need not allow an
individual to participate in or benefit from the programs or activities
of that recipient if it concludes, after an individualized assessment,
that the individual poses a ``direct threat'' as set forth in Sec.
84.75. Similarly, ``a recipient may impose legitimate safety
requirements necessary for the safe operation of its programs or
activities'' in Sec. 84.68(h). 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.'' In addition, Sec. 84.68(b)(8) provides that 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
program or activity, unless such criteria can be shown to be necessary
for the provision of the program or activity being offered.''
Summary of Regulatory Changes
For the reasons set forth above and considering the comments
received, we are finalizing Sec. 84.74 as proposed with no
modifications.
Direct Threat (Sec. 84.75)
Proposed Sec. 84.75(a) stated that nothing in this part requires a
recipient to permit an individual to participate in or benefit from
programs or activities when that individual poses a direct threat.
Proposed Sec. 84.75(b) stated that except as provided in paragraph
(c), 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.
Proposed Sec. 84.75(c) provided that in the area of employment,
the individualized assessment must be made according to the ADA title I
regulations of the Equal Employment Opportunity Commission.
The comments and our responses regarding Sec. 84.75 are set forth
below.
Comments: The Department received many comments, including from
multiple organizations representing individuals with disabilities,
stating that the direct threat defense has been misunderstood,
overused, and misconstrued and has been used to justify blanket bans on
wheelchairs, power wheelchairs, and other mobility assistive devices
based on generalizations and stereotypes. The commenters asked that we
clarify that the direct threat analysis should be focused on the
individual and requires a fact-specific, individualized assessment.
Response: As set forth in the definition of direct threat in Sec.
84.10, the standard to apply when determining whether a situation poses
a direct threat is whether it is a significant risk to the health and
safety of others that cannot be eliminated by a modification of
policies, practices, and procedures, or by the provision of auxiliary
aids and services. In determining whether that standard has been met,
the Department affirms the notion that the determination is a factual
one that requires an individualized assessment and that it cannot be
used to impose blanket bans on, for example, mobility devices without
consideration of the appropriate factors.
Comment: An organization representing an association of State
government agencies highlighted the potential unintended consequences
of the direct threat text. They focused on a subgroup of individuals
with disabilities who have impulsive and explosive behaviors that can
sometimes result in injury to themselves or others. The commenter noted
that in these types of situations, many States have developed small
community service settings for those individuals rather than providing
services in more restrictive settings such as State institutions. The
commenters were afraid that if the Department were to keep the direct
threat language as in the proposed rule, individuals who need
extraordinary measures will be permanently assigned to institutional
care. They suggested the addition of a paragraph in the text indicating
that if all reasonable modifications have been made to mitigate the
risk and the probability of potential injury still exists, the
recipient must structure the program with sufficient staff well trained
to disarm and defend against the threatening behavior.
Response: The Department thanks the commenters for their thoughtful
suggestions for additions to the direct threat text. Section
84.68(b)(7) contains the Department's reasonable modifications
requirement. That section requires recipients to provide reasonable
modifications to policies, practices, and 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. And Sec. 84.76 contains the Department's integration
requirement. These regulations require ``reasonable'' modifications but
commenters want the mandate to include ``extraordinary'' modifications.
The Department is unable to change the direct threat text to require
more of recipients than is required by the reasonable modifications and
integration provisions. Recipients can certainly decide to provide more
than is required by section 504 to serve particular individuals but we
cannot mandate that they do so. Accordingly, we decline to change the
regulatory text.
[[Page 40117]]
Summary of Regulatory Changes
For the reasons set forth above and considering comments received,
we are retaining Sec. 84.75 as proposed with no modifications.
Integration (Sec. 84.76)
Proposed Sec. 84.76 expanded upon the integration mandate in the
existing section 504 regulations at Sec. 84.4(b)(2) and the
integration requirement in proposed Sec. 84.68(d).
Proposed Sec. 84.76(a) addressed the application of the section.
Proposed Sec. 84.76(b) prohibited administering a program or
activity in a manner that results in unnecessary segregation of
individuals with disabilities.
Proposed Sec. 84.76(c) defined a segregated setting as one where
individuals with disabilities are unnecessarily separated from people
without disabilities. Such settings are populated exclusively or
primarily with individuals with disabilities, and may be characterized
by regimentation in daily activities; lack of privacy or autonomy; or
policies limiting visitors or limiting individuals' ability to engage
freely in community activities and to manage their own activities of
daily living.
The Department invited comment on whether the definition of
``segregated setting'' should be expanded.
Proposed Sec. 84.76(d) provided a non-exhaustive list of specific
prohibitions.
Proposed Sec. 84.76(e) stated 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.
The Department invited 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.
The comments and our responses regarding Sec. 84.76 are set forth
below.
General
Comments: Most commenters enthusiastically supported the
clarification of integration requirements in this section. We received
supportive comments from individuals, advocacy organizations, State
government and provider associations, and managed care plans, among
others. Commenters emphasized the importance of integrated services to
ensure individuals with disabilities can live, work, and engage in the
community like people without disabilities.
Response: The Department appreciates support for this section and
intends for the new provisions to clarify the existing requirements of
covered entities.
Comments: Several commenters, including parents of adult children
with disabilities and parent advocacy organizations, expressed concerns
related to the legitimacy of the integration provision and shared the
opinion that institutional settings are the only appropriate option for
some individuals with disabilities. Further, these commenters alleged
that failure to ensure the availability of institutional placements is
discrimination against individuals with disabilities.
Response: While this section elaborates on the prior rule's
language requiring programs and services to be administered in the most
integrated setting, the additions are intended to codify longstanding
case law and Federal guidance with respect to the obligations of
covered entities to serve individuals with disabilities in the most
integrated setting appropriate to their needs.\85\ The Department
recognizes several commenters' opposition to the integration mandate.
We note that contrary to some parent advocacy groups' position, the
integration mandate in section 504 or title II does not require
recipients or public entities to offer services, programs, or
activities in institutional settings.\86\ We reiterate this section
clarifies existing obligations under Federal law to help recipients
deliver services in the most integrated setting appropriate to a
person's needs.
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\85\ See, e.g., Olmstead v. L.C., 527 U.S. 581 (1999); 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.
\86\ See e.g., Richard C. ex rel. Kathy B. v. Houstoun, 196 FRD.
288, 292 (W.D. Pa. 1999) (``[I]t does not logically follow that
institutionalization is required if any one of the three Olmstead
criteria is not met.''); Ball v. Kasich, 520 F. Supp. 3d 979, 984-85
(S.D. Ohio 2021) (``These courts find that failure to provide
facility-based services does not constitute discrimination under the
ADA or Rehabilitation Act.'' citing D.T. v. Armstrong, 2017 U.S.
Dist. LEXIS 91725 *20-21, 2017 WL 2590137 *7-8 (D. Idaho 2017),
Sciarrillo v. Christie, 2013 U.S. Dist. LEXIS 175178, 2013 WL
6586569, * 4 (D. N.J. Dec. 13, 2013) (citing Richard S. v. Dep't of
Developmental Servs. of the State of Cal., 2000 U.S. Dist. LEXIS
22750, 2000 WL 35944246, *3 (C.D. Cal. Mar. 27, 2000)); Richard C.
ex rel. Kathy B. v. Houstoun, 196 FRD. 288, 292 (W.D. Pa. 1999);
Ill. League of Advocates for the Developmentally, Disabled v. Quinn,
2013 U.S. Dist. LEXIS 86637, 2013 WL 3168758, *5 (N.D. Ill. June 20,
2013)).
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Comment: A commenter suggested that the Department's integration
mandate discriminates against those persons with severe or multiple
disabilities who may need the services of institutional settings.
Another commenter representing State government stated that the
proposed rule violates the constitutional principle of separation of
powers.
Response: The Department does not agree that its integration
requirement in Sec. 84.76(b) discriminates against persons with severe
disabilities. That section requires providing a person with a
disability with the most integrated setting ``appropriate to the needs
of a qualified persons with a disability.'' This language by its own
terms recognizes the possibility that there may be situations where an
appropriate placement may be in an institutional setting.
As to the comment on the separation of powers, the Department
disagrees with the comment's assertion that its regulation removes
political judgment from the hand of the States or supplants States'
authority or discretion in this area. The Department is following the
precedent set in the Olmstead decision. The regulation recognizes that,
when States already have programs in place providing services to
persons with disabilities, those programs must comply with two Federal
civil rights requirements: section 504's and the ADA's requirement not
to operate programs or activities in a manner that discriminates on the
basis of disability. For reasons discussed elsewhere in our responses
to comments about Sec. 84.76 (d) (discussion of the ``at serious
risk'' standard and the U.S. v. Mississippi decision) and the
discussion of Executive Order 13132 and federalism, the rule's
integration mandate, including the prohibition on failure to provide
community-based services that results in ``serious risk of
institutionalization,'' does not exceed statutory authority under
section 504 and the ADA and therefore does not implicate separation of
powers concerns by improperly intruding on State policymaking
discretion.
Further, the rule requires only ``reasonable modifications,'' and
codifies the ``fundamental alteration'' limitation, two additional
features that respect the role of federalism.
Application (Sec. 84.76(a))
Comments: Several commenters asked the Department to clarify
whether this section applies to specific programs, such as day programs
for individuals with dementia or programs for individuals with mental
illness. Additionally, some commenters asked for elaboration on how
this applies to programs funded through Medicare Advantage. These
commenters argued
[[Page 40118]]
that the failure to provide Medicaid and Medicare beneficiaries with
needed services, including mental health services, treatments, and
equipment, quickly leads to decreased health and function that can put
both Medicaid and Medicare enrollees at serious risk of unnecessary
institutionalization.
Response: The integration requirements apply to all programs or
activities that receive Federal financial assistance from the
Department without exception. The rule clarifies recipients' existing
obligations under section 504 and does not create new obligations
regarding integration. For example, managed care organizations and
Medicare Advantage entities are obligated to provide services in the
most integrated setting if doing so does not fundamentally alter the
program or service. Similarly, hospital systems receiving Federal
financial assistance from the Department must ensure their discharge
planning processes facilitate HCBS when appropriate, rather than
defaulting to coordinating placements for congregate care facilities.
We note that the ``most integrated setting'' depends on what is
appropriate for the individual with a disability.
Comments: Several commenters highlighted the importance of the
availability of key resources like accessible, affordable housing;
transportation; and assistive technology, that individuals with
disabilities need to engage fully in the community. Shortages in these
programs and services create barriers to community integration.
Commenters encouraged the Department to include access to these
services in the rule.
Response: The Department agrees that many federally funded services
are necessary to help eliminate barriers to community living and
engagement. We note that this rule's coverage extends only to
recipients of Federal financial assistance through this Department, and
does not reach many transportation, housing, education, or other
programs that do not receive HHS funds. However, we collaborate
frequently with our Federal partners who do fund these services and
have issued joint guidance about how these programs support community
integration for disabilities.\87\ We will consider additional joint
guidance to advance coordination as appropriate.
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\87\ See e.g., U.S. Dep't of Health & Human Servs. & U.S. Dep't
of Housing & Urban Dev., Fact Sheet: Advancing Community Living
Through Coordination Between Housing and Voluntary Community
Services (Dec. 8, 2021), https://acl.gov/sites/default/files/ada/HHS-HUD_HousingFactSheetpdf.pdf.
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Applicability of the Integration Requirement in a Public Health
Emergency
Comments: Several commenters noted that Public Health Emergencies
and natural disasters are critical junctures where people with
disabilities are institutionalized. They cited the National Council on
Disability (NCD) report, ``Preserving Our Freedom: Ending
Institutionalization of People with Disabilities During and After
Disasters,'' which found that people with disabilities are often
transferred to nursing facilities or segregated shelters during
emergencies, without proper assessment, transition planning or
discharge planning.\88\ Commenters highlighted that, during the COVID-
19 pandemic, people were often placed in congregate care settings with
extreme levels of uncontrolled infection and resulting high mortality
rates.
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\88\ Nat`l Council on Disability, Preserving Our Freedom: Ending
Institutionalization of People with Disabilities During and After
Disasters, (May 24, 2019), https://ncd.gov/publications/2019/preserving-our-freedom.
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Response: The Department has consistently stated that section 504
and other civil rights obligations apply during a public health
emergency.\89\ Further, even if a practice is allowed through an
administrative policy such as a Public Health emergency waiver, such a
waiver does not obviate the covered entity's responsibility to meet
their obligations under section 504.
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\89\ See 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/civilrights-covid19/disabilty-faqs/index.html; U.S. Dep't of Health & Human Servs., Off.
for Civil Rts., Bulletin: Civil Rights, HIPAA, and the Coronavirus
Disease 2019 (COVID-19) (Mar. 28, 2020), https://www.hhs.gov/sites/default/files/ocr-bulletin-3-28-20.pdf.
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Obligations under the Medicare Program
Comments: Several commenters noted that the integration mandate has
substantial implications for the Medicare program and requested that
the Department clarify obligations of recipients operating Medicare-
financed programs under section 504's integration mandate, including
with respect to home health and other Medicare benefits.
Response: The Department agrees that section 504's integration
mandate applies to Medicare programs, including Medicare Advantage
plans, Medicare Part D plans, and other entities that receive Medicare
funding (such as the Program of All-inclusive Care for the Elderly
(PACE) programs or health plans operating under the Centers for
Medicare & Medicaid Services' (CMS's) dual eligible demonstrations).
Discriminatory Action Prohibited (Sec. 84.76(b))
Comments: Several commenters found the phrasing ``unnecessary
segregation,'' in Sec. 84.76 (b), to be an extraneous and potentially
confusing term. They expressed concern that the addition of the term
may lead to the assumption that there is a second standard distinct
from ``most integrated setting appropriate to the needs of a qualified
person with a disability,'' that determines whether segregation is
unnecessary. Other commenters objected to the proposed phrase, stating
that segregation of people with disabilities is never necessary.
Response: Recipients have a longstanding, affirmative obligation
under the integration requirement of section 504 to administer a
program or activity ``in the most integrated setting appropriate to the
needs of a qualified person with a disability.'' \90\ Failing to do so
may violate section 504. We appreciate comments that the second
sentence may confuse recipients about the applicable standard. To
clarify the requirements, we are deleting the second sentence. In doing
so, the Department intends only to clarify the requirement of this
section and does not mean to narrow the obligation to provide services
in the most integrated setting appropriate to the needs of the
individual with a disability.
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\90\ 45 CFR 84.4(b)(2).
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Responses to Integration Question 1
Comments: In the discussion in the preamble of the proposed
definition of ``most integrated setting,'' we solicited comments on
whether the definition should be expanded. Many commenters from
disability advocacy organizations suggested a definition: ``The most
integrated setting is a setting that enables people with disabilities
to live as much as possible like people without disabilities.''
Commenters said this definition was supported in a 2014 disability
coalition statement ``Community Integration for People with
Disabilities.'' \91\ Commenters also suggested that this definition
avoids imposing concrete secondary standards distinct from the ``most
integrated setting,'' such as determining what is ``mainstream
society.'' Some commenters also found the phrase
[[Page 40119]]
``mainstream society'' to be pejorative or biased against groups not
identified as ``mainstream.''
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\91\ ADAPT et al., Community Integration for People with
Disabilities: Key Principles (2014), https://www.bazelon.org/wp-content/uploads/2017/10/Key-Principles.pdf (stating that
``individuals with disabilities should have the opportunity to live
like people without disabilities.'').
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Comments: Many commenters supported the importance of the
individual's right to choose how and when they engage in the broader
community. Some also emphasized the importance of informed choice, that
an individual receives adequate information about available and
programs and resources available to support services in the community.
Response: We appreciate the commenters' thoughtful responses to our
request for comment on whether the definition of ``most integrated
setting'' should be expanded, and we note disability advocacy groups'
preference for a more streamlined definition. We have modified the
NPRM's definition of ``most integrated setting'' to align more closely
with the description of ``most integrated setting'' in title II
Olmstead guidance.\92\ To mirror the guidance, we are adding the clause
``these settings provide opportunities to live, work, and receive
services in the greater community, like individuals without
disabilities,'' to the definition published in the NPRM.
---------------------------------------------------------------------------
\92\ 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. 21, 2024).
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Segregated Settings (Sec. 84.76(c))
Comments: Several commenters objected to the use of the word
``unnecessarily'' in the rule's proposed language: ``A segregated
setting is one in which people with disabilities are unnecessarily
separated from people without disabilities,'' on the basis that
segregation is inherently stigmatizing and thus never necessary. Many
commenters emphasized that segregated settings are defined by a lack of
informed, individual choice or autonomy for participants in how and
when they interact with the broader community. These characteristics
can be present even in settings such as group homes physically located
in integrated communities.\93\
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\93\ See, e.g., Pashby v. Delia, 709 F.3d 307, 323 (4th Cir.
2013) (finding adult care homes institutional in nature and that the
``goals often fall short of reality'' of the facilities); H.A. by
L.A. v. Hochul, 2022 WL 357213, at *6 (W.D.N.Y. 2022) (finding that
engagement in community living activities misses the point that
their schedules are circumscribed due to limited caregiver
availability); Murphy v. Harpstead, 421 F. Supp. 3d 695, 716 (D.
Minn. 2019) (community integration issues found when plaintiffs
showed isolation, limited choice, and lesser quality of life in
group homes than independent housing).
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Many commenters suggested a paragraph describing segregated
settings that provides features of segregated settings but is not a
definitive list, in a style mirroring that of DOJ's Olmstead
guidance.\94\ Several commenters suggested that the definition include
``practices'' as well as ``policies,'' as the relevant restrictions or
limitations on individual autonomy are not limited to those in formally
adopted policies but also include those reflected in the setting's
practices.
---------------------------------------------------------------------------
\94\ 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).
---------------------------------------------------------------------------
Response: We appreciate the robust comments on segregated settings.
We agree that the list of qualities of segregated settings should be
inclusive of examples, rather than defined by any one characteristic.
We also agree that a covered entity's practices, in addition to its
policies, can result in segregation. Accordingly, we revised Sec.
84.76(c) by deleting the first sentence of the section. Paragraph (c)
now provides that segregated settings include, but are not limited to,
congregate settings populated exclusively or primarily with individuals
with disabilities, and may be characterized by regimentation in daily
activities, a lack of privacy or autonomy, or policies or practices
limiting visitors or limiting individuals' ability to engage freely in
community activities and to manage their own activities of daily
living.
Relationship to Medicaid Statutes and Funding
Comments: Several commenters expressed concern that the integration
mandate is perceived to conflict with the title XIX of the Social
Security Act requirements. Title XIX requires Medicaid services be
funded through an approved waiver or State plan program when the State
elects to provide those services in the community instead of the
mandatorily funded long-term care facilities, a requirement sometimes
referred to as Medicaid's ``institutional bias.'' Other commenters
raised concern about the need for increased Medicaid funding and
rebalancing available Medicaid funds to prioritize community-based
services. Some commenters asked that the definition of segregated
settings mirror the CMS HCBS settings rule,\95\ which sets the
requirements for HCBS settings funded by Medicaid waivers. The Settings
Rule lists several qualities of home and community-based settings,
centered on rights of privacy, dignity and respect, and freedom from
coercion and restraint, as well as promoting independence in making
life choices, including but not limited to, daily activities, physical
environment, and with whom to interact.
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\95\ Ctrs. for Medicare & Medicaid Servs., Medicaid Program;
State Plan Home and Community-Based Services, 5-Year Period for
Waivers, Provider Payment Reassignment, and Home and Community-Based
Setting Requirements for Community First Choice and Home and
Community-Based Services (HCBS) Waivers, 79 FR 2948 (Jan. 16, 2014).
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Response: As noted in the preamble to the NPRM, the civil rights
obligations created by section 504 are separate and distinct from the
requirements of Medicaid and the Social Security Act.\96\ Compliance
with Medicaid requirements does not necessarily mean a recipient has
met the obligations of section 504. Further, implementation of title
XIX or other Federal statutes is beyond the authority of this
regulation to address.
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\96\ See, e.g., U.S. Dep't of Health & Human 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_226.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.'').
---------------------------------------------------------------------------
Acknowledging comments desiring the same framework of ``integrated
setting'' as the HCBS settings rule, we note that, while the HCBS
settings rule can help States fulfill their obligations under section
504, a State's obligations under section 504 are independent of a
State's compliance with the HCBS settings rule.\97\
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\97\ U.S. Dep't of Health & Human Servs., Ctrs. for Medicare &
Medicaid Servs, Letter to State Medicaid Directors (Olmstead Update
#4) (Jan. 10, 2001) (``. . . because Medicaid HCBS waivers affect
the ability of States to use Medicaid to fulfill their obligations
under the ADA and other statues, we have included these answers as
an Olmstead/ADA update.'') See, e.g., 88 FR 63486; and U.S. Dep't of
Health & Human 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/hhsguidance-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.'').
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Additionally, the Department appreciates commenters' feedback about
the need for increased HCBS funding and rebalancing available Medicaid
[[Page 40120]]
funds to prioritize community-based services. However, these concerns
are beyond the scope of the Department's rulemaking under section 504.
Specific Prohibitions (Sec. 84.76(d))
Comments: State officials objected to the proposed rule's inclusion
in the list of specific prohibitions ``[f]ailure to provide community-
based services that results in . . . serious risk of
institutionalization'' (Sec. 84.76(d)(4)). These commenters cited the
Fifth Circuit's decision in United States v. Mississippi, 82 F.4th 387
(5th Cir. 2023), to support their position. Commenters also took issue
with the reference to DOJ's Olmstead guidance in the proposed rule's
discussion of integration requirements. Several courts of appeals have
found DOJ's Olmstead guidance to reflect the best reading of the
statute and the then-applicable regulations,\98\ whereas the Fifth
Circuit declined to follow the guidance on the facts before it.\99\
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\98\ See, e.g., Steimel v. Wernert, 823 F.3d 902, 911 (7th Cir.
2016); Davis v. Shah, 821 F.3d 231, 263 (2d Cir. 2016); Pashby v.
Delia, 709 F.3d 307, 322 (4th Cir. 2013).
\99\ United States v. Miss., 82 F.4th 387, 393-394 (5th Cir.
2023).
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Response: Based on the Supreme Court's decision in Olmstead,\100\
decades of consensus in circuit courts, and the unambiguous
requirements of existing title II and section 504 regulations, the
Department affirms its decision to codify the ``at serious risk of
institutionalization'' principle set forth in case law and guidance.
---------------------------------------------------------------------------
\100\ Olmstead v. L.C., 527 U.S. 581 (1999).
---------------------------------------------------------------------------
In the more than twenty years since Olmstead, courts have
repeatedly held that individuals may bring nondiscrimination claims
under section 504 and the ADA by showing a covered entity's actions
place them at serious risk of unnecessary institutionalization. As
noted in Fisher v. Oklahoma, the integration mandate's ``protections
would be meaningless if plaintiffs were required to segregate
themselves by entering an institution before they could challenge an
allegedly discriminatory law or policy that threatens to force them
into segregated isolation.'' \101\ To this point, the title II and
section 504 regulations create an unambiguous, affirmative obligation
to avoid discrimination through unjustified isolation, as discussed
below.
---------------------------------------------------------------------------
\101\ Fisher v. Okla. Health Care Auth, 335 F.3d at 1181.
---------------------------------------------------------------------------
Thus, the overwhelming weight of authority supports robust
protection for individuals at serious risk of unnecessary
institutionalization. Of the seven circuits to consider the issue, the
Fifth Circuit stands apart as the only one to question the long-
standing application of ``serious risk'' in Olmstead cases.\102\
Further, the Fifth Circuit did not reach the question of whether the
other six circuits erred in their interpretations, noting that it
``need not say'' that the decisions of the other six circuits were
``wrong.'' \103\ And even the Fifth Circuit did not definitively reject
Olmstead's application to ``at risk'' cases in all circumstances. ''
\104\ The other circuits' at-risk decisions, by contrast, involved
circumstances in which class-wide risks of institutionalization were
``susceptible of quantification and, indeed, generalization.'' \105\
Despite some broadly worded dicta, the Fifth Circuit's liability
holding in Mississippi ultimately rests on what the court saw as the
breadth of the claim in that case.'' \106\ The court favored a narrow
reading in part because of the doctrine of ripeness.\107\ That
doctrine, which reflects Article III limitations on judicial power, is
not relevant to the proper scope of the Department's regulations. That
holding does not compel us to reject the longstanding principle,
adopted by six other circuits, that a policy or practice that places
individuals at serious risk of unnecessary institutionalization
violates the integration mandate in appropriate cases.
---------------------------------------------------------------------------
\102\ See Davis v. Shah, 821 F.3d 231, 263 (2d Cir. 2016);
Pashby v. Delia, 709 F.3d 307, 322 (4th Cir. 2013); Waskul v.
Washtenaw Cnty. Cmty. Mental Health, 979 F.3d 426, 460-461 (6th Cir.
2020); Steimel v. Wernert, 823 F.3d 902, 914 (7th Cir. 2016); Fisher
v. Okla. Health Care Auth., 335 F.3d 1175, 1181-82 (10th Cir. 2003).
\103\ U.S. v. Miss., 82 F.4th at 396.
\104\ Id. at 392, 396.
\105\ Id. at 396.
\106\ Id. at 398.
\107\ Id. at 397 (quoting Waskul v. Washtenaw Cnty. Cmty. Mental
Health, 979 F.3d 426, 470 (6th Cir. 2020) (Readler, J. concurring in
part and dissenting in part)).
---------------------------------------------------------------------------
The title II and section 504 regulations create an unambiguous,
affirmative obligation to avoid discrimination through unjustified
isolation. As legislatively authorized regulations, both carry the
``force and effect of law.'' \108\ 28 CFR 35.130(d) requires that a
``public entity shall administer services, programs, and activities in
the most integrated setting appropriate to the needs of qualified
individuals with disabilities.'' The Department has long interpreted
section 504 to impose the same requirement on recipients of Federal
funding in 45 CFR 84.4(b)(2). Further, the regulation interpreting the
reasonable modification component of title II, which is located at 28
CFR 35.130(b)(7)(i), requires public entities to ``avoid
discrimination.'' Courts have held this creates a duty to address the
risk of prohibited harm.\109\ The proposed section 504 regulation, 45
CFR 84.68(d), adopts the same language, codifying the longstanding
obligation under section 504. Mitigating serious risk of
institutionalization is necessary to avoid discrimination in the form
of unjustified isolation. In addition, it would still be appropriate
for courts to grant injunctive relief to those at serious risk in order
to prevent the unnecessary institutionalization prohibited by law. The
potential scope of a judicial remedy only further highlights why it is
appropriate for the Department to interpret section 504 to require
recipients to avoid unnecessary institutionalization.\110\
---------------------------------------------------------------------------
\108\ See, e.g., Ramsay v. Nat'l Bd. of Med. Examiners, 968 F.3d
251, 257 n.6 (3d Cir. 2020) (``The ADA authorizes DOJ to issue
regulations implementing the public accommodations provisions of the
ADA. Such regulations have the force and effect of law.'') (Internal
quotation omitted).
\109\ See, e.g., Wisconsin Cmty. Servs., Inc. v. City of
Milwaukee, 465 F.3d 737, 753 (7th Cir. 2006) (``By requiring
measures that are `necessary to avoid discrimination on the basis of
disability,' 28 CFR 35.130(b)(7), the regulation clearly
contemplates that prophylactic steps must be taken to avoid
discrimination.'').
\110\ See, e.g., United States v. W.T. Grant Co., 345 U.S. 629,
633 (1953) (explaining that ``[t]he purpose of an injunction is to
prevent future violations'' and that such relief is appropriate
where there is a ``cognizable danger of recurrent violation.'').
---------------------------------------------------------------------------
Comments: Several commenters asked us to elaborate on the meaning
of ``at serious risk,'' noting that courts have evaluated the risk of
institutionalization for both probability of institutionalization and
timing, to conclude that individuals at risk are likely to be
institutionalized in the foreseeable future.
Response: We agree with commenters that the determination of
``serious risk'' is a fact-based inquiry, which is why the courts of
appeals to have considered the question have provided only general
guidance on determining risk rather than an exhaustive test.\111\
Likewise, the Department declines to codify
[[Page 40121]]
parameters of the inquiry into ``serious risk.''
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\111\ For example, in Davis v. Shah, 821 F.3d 231, 262-63 (2d
Cir. 2016), 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.'' See also, Waskul v. Washtenaw Cnty. Cmty. Mental
Health, 979 F.3d 426, 462 (6th Cir. 2020) finding ``declines in
health, safety, or welfare'' as to sufficient to show plaintiffs
were at serious risk of institutionalization.
---------------------------------------------------------------------------
Comment: Several commenters argued the Department failed to
adequately estimate the costs of integration provision as proposed in
the Regulatory Impact Analysis, citing the Unfunded Mandates Reform Act
(UMRA). Further, some State officials worried about the impact of the
integration provision, specifically the ``at serious risk'' on States.
Some commenters also asked that that the integration provision's
implementation be delayed in order for States to plan for additional
costs.
Response: The final integration provision codifies existing
responsibilities for recipients, as explained in our responses to
comments about Sec. 84.76(d). Due to the existing nature of
recipients' obligations, and the same preexisting obligations under
title II for public entities, the final rule's integration provision
places no additional costs on recipients. For the reasons discussed in
that section, we find the ``at serious risk'' principle to be a well-
established, central tenet of the integration requirement and part of
enforcement of statutory rights that prohibit discrimination on the
basis of disability. The rule is thus exempted from and not subject to
the UMRA, from which Federal regulations that enforce statutory rights
that prohibit discrimination on the basis of disability are
exempted.\112\
---------------------------------------------------------------------------
\112\ 2 U.S.C. 1503(2).
---------------------------------------------------------------------------
Fundamental Alteration (Sec. 84.76(e))
Comments: In response to our request for comment on what may
constitute a fundamental alteration for recipients who are not public
entities, various commenters proposed that the creation or offering of
a new service would be a fundamental alteration for non-public
entities. Several commenters raised questions about what services a
covered entity must provide to comply with this section, and whether
entities, particularly private providers, would be required to create
new services to support individuals in more integrated settings.
Response: We note that a recipient is not required to create
``new'' programs to assist people with disabilities, nor is it required
to provide a particular standard of care or level of benefits. However,
recipients must comply with section 504's nondiscrimination
requirements--including the integration requirement--for the services
they in fact provide. When a covered entity chooses to provide a
service, it must do so in a nondiscriminatory fashion by ensuring
access to that service in the most integrated setting appropriate to
the needs of the qualified individual.\113\
---------------------------------------------------------------------------
\113\ See Olmstead v. L.C., 527 U.S. at 603; see also
Radaszewski v. Maram, 383 F.3d 599, 609 (7th Cir. 2004) (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.' '').
---------------------------------------------------------------------------
Recipients may be required to offer services in an integrated
setting that they have only been offering in segregated settings; that
is generally not offering a ``new service,'' but instead is ensuring
the service is offered in integrated settings and not just in
segregated settings.\114\ However, the expansion of a service to
different settings or offering a substantially similar service may be a
fundamental alteration. To the extent that a benefit, including an
optional benefit, is already provided in institutions or other
segregated settings as part of the recipient's program, the same or a
substantially similar \115\ benefit must be offered in an integrated
setting in a manner that does not incentivize institutional or other
segregated services over community services, unless extending the
benefit would constitute a fundamental alteration of the program.
---------------------------------------------------------------------------
\114\ See U.S. Dep't of Justice, Civil Rights Div., 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 (June 22, 2011), https://archive.ada.gov/olmstead/q&a_olmstead.htm (stating that (p)ublic entities cannot avoid their
obligations under the ADA and Olmstead by characterizing as a ``new
service'' services that they currently offer only in institutional
settings.). See also Townsend v. Quasim, 328 F.3d 511, 517 (9th Cir.
2003) (``Here, the precise issue is not whether the state must
provide the long term care services sought by Mr. Townsend and the
class members--the state is already providing these services--but in
what location these services will be provided.'').
\115\ A substantially similar service is one that is similar in
substance to the institutional service, even if the service ``might
vary in format depending on whether it is provided . . . in an
institution or a community-based setting.'' Radaszewski ex. rel.
Radaszewski v. Maram, 383 F.3d 599, 610 (7th Cir. 2004).
---------------------------------------------------------------------------
For example, if a managed care plan offers a Medicaid-funded
respite care benefit through the temporary placement of an individual
with a disability in an institutional setting, such as a nursing home
or Intermediate Care Facility,\116\ but does not offer a comparable
respite benefit available in an individual with a disability's home,
that would likely be prohibited discrimination under the rule, unless
the plan could prove that adding a home-based benefit would be a
fundamental alteration. Similarly, a hospital system that facilitates
discharge planning to skilled nursing facilities but does not
facilitate discharge planning for people with disabilities who wish to
receive nursing services in their own home may constitute
``[a]dministering a program or activity that results in unnecessary
segregation,'' which would violate Sec. 84.76(b) of the final rule.
This approach is consistent with the existing integration requirement
under current case law, section 504, and title II of the ADA.\117\
---------------------------------------------------------------------------
\116\ Please note, these are facilities that require an
individual to meet eligibility requirements for a certain level of
care for admission.
\117\ 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 8 (2020), https://www.ada.gov/olmstead/q&a_olmstead.htm; Steimel v. Wernert, 823 F.3d 902, 914 (7th Cir.
2016).
---------------------------------------------------------------------------
Because what constitutes a ``fundamental alteration'' is fact-
specific, the Department has not modified the proposed regulatory text.
Comments: Several commenters asked that the Department address the
``workforce crisis'' as a basis for a fundamental alteration defense.
Commenters wrote that national workforce shortages among nursing staff
and direct care workers create challenges for public and private
providers. In addition, commenters noted that State budgetary decisions
constrain public and private providers in their ability to offer
services, recruit and retain staff, and otherwise provide services to
all eligible individuals with disabilities, noting that available funds
and reimbursement rates may be beyond the control of individual
providers or networks. Commenters also asked that OCR make explicit
that a determination of whether something constitutes a fundamental
alteration is fact and context-specific. Some commenters asked for an
explanation of how an ``effectively working'' Olmstead plan could show
that a requested modification would require fundamental alteration of
the covered entity's existing programs or services.
Response: States and other recipients cannot dismiss their
obligation to provide community services on the basis that services may
require changes to the recipients' methods of administration.
Reimbursement rates, direct workforce pay rates, and network adequacy
are ``methods of administration'' under Sec. 84.68(b)(3) as well as
``planning, service system design, funding, or service implementation
practices'' under Sec. 84.76(d)(4). A recipient might be in violation
of this section if it adopts reimbursement practices or other
[[Page 40122]]
methods of administration that result in individuals with disabilities
only being able to receive residential, employment, day habilitation,
or other necessary support services in segregated settings.\118\
---------------------------------------------------------------------------
\118\ Public entities may raise a fundamental alteration defense
by showing that they have developed, and are implementing, a
comprehensive, effectively working Olmstead plan. To avail
themselves of such a defense, the entity's plan must have specific
and reasonable timeframes and measurable goals for which the public
entity may be held accountable, and the plan must have demonstrated
success in actually moving individuals to integrated settings in
accordance with the plan. See, e.g., Brown v. District of Columbia,
928 F.3d 1070, 1084 (D.C. Cir. 2019); Frederick L. v. Dep't of Pub.
Welfare, 422 F.3d 151, 157 (3d Cir. 2005); Jensen v. Minn. Dep't of
Human Servs., 138 F. Supp. 3d 1068, 1072 (D. Minn. 2015).
---------------------------------------------------------------------------
We restate that fundamental alteration is a fact-specific inquiry
and that increased cost alone is not necessarily a fundamental
alteration.\119\ Further, we note that cost and reimbursement decisions
may be made by multiple entities, including State agencies, managed
care plans, and private providers. As the Department noted in the
proposed rule for section 1557, 87 FR 47873, recipients taking on
financial risk for the delivery of HHS-funded services should
scrutinize their capitation, reimbursement, quality measurement, and
incentive structures to ensure that they do not result in the
unjustified segregation of individuals with disabilities or place
individuals with disabilities at serious risk of institutionalization
or segregation. Under circumstances where responsibility for segregated
and integrated services is shared across multiple entities, for
example, under a managed care contract, both the State Medicaid agency
and the contracted entity have obligations under this provision if they
are both recipients of Federal financial assistance.
---------------------------------------------------------------------------
\119\ Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1183
(10th Cir. 2003).
---------------------------------------------------------------------------
This shared responsibility means, for example, that recipients
cannot assert that a staffing shortage, in and of itself, demonstrates
that provision of services would be a fundamental alteration. If the
recipient can address staffing shortages through pay rates, recruitment
and retention incentives, flexible scheduling such as split shifts, or
other actions, it may be required to do so as a reasonable
modification.\120\
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\120\ See United States v. Fla., No. 12-CV-60460, 2023 WL
4546188, at *59 (S.D. Fla. July 14, 2023) (requiring Florida to
increase private duty nursing services for medically fragile
children and requiring the State to address the shortage of nurses
``by requiring that managed care plans raise PDN reimbursement
rates, ensuring that the managed care plans comply with network
adequacy standards, or utilizing any other tool at its disposal.'')
(under appeal in United States v. Florida, No. 23-12331 (11th Cir.)
---------------------------------------------------------------------------
The availability of the fundamental alteration defense is clear as
drafted and so we decline to change the language in the regulation
text. In this final rule, we clarify a program is not required to
provide coverage for a service in the most integrated setting
appropriate to an individual's needs if it would fundamentally alter
the program to do so.
Technical Assistance
Comments: Several commenters requested the Department provide
technical assistance addressing the differences between compliance with
Medicaid and adherence to civil rights laws, with practical examples
and best practices. Other commenters suggested that the Department
provide additional guidance to recipients on how the integration
provision applies to transitions in care and effective community-based
supports for those discharged from hospitals, skilled nursing
facilities, and other institutional settings. Additionally, a few
commenters recommended the Department offer technical assistance on how
this regulation will address unfair practices in system design and
funding.
Response: We appreciate the comments requesting clarification
through sub-regulatory guidance. We will consider future guidance after
this rule has been finalized and remain committed to our continued
partnership with DOJ and CMS in developing shared guidance on civil
rights requirements.
Summary of Regulatory Changes
For the reasons set forth above and considering comments received,
we are revising Sec. 84.76(b) and (c). Paragraph (b) requires a
recipient to administer a program or activity in the most integrated
setting appropriate to the needs of a qualified person with a
disability. Paragraph (c) discusses integrated settings as settings
that include (but are not limited to) congregate settings that are
populated exclusively or primarily with individuals with disabilities,
and may be characterized by regimentation in daily activities, lack of
privacy or autonomy, or policies or practices limiting visitors or
limiting individuals' ability to engage freely in community activities
and to manage their own activities of daily living.
Subpart H--Communications
Proposed subpart H addressed requirements related to providing
effective communication for individuals with disabilities. The
Department requested comment on the importance of providing information
in plain language for individuals with cognitive, developmental,
intellectual, or neurological disabilities. Additionally, the
Department requested comment on whether plain language is appropriately
considered a reasonable modification that an individual must request,
or if it should be considered an auxiliary aid or service.
The proposed requirements of this subpart are nearly identical to
the requirements of subpart E, Communications, in the ADA title II
regulations.\121\
---------------------------------------------------------------------------
\121\ 28 CFR 35.160 through 35.164.
---------------------------------------------------------------------------
General (Sec. 84.77)
Proposed Sec. 84.77(a)(1) required recipients to take appropriate
steps to ensure that communications with individuals with disabilities,
and companions with disabilities, are as effective as communications
with individuals without disabilities.
Proposed Sec. 84.77(1)(2) defined ``companion.''
Proposed Sec. 84.77(b)(1) required recipients to provide
appropriate auxiliary aids and services to individuals with
disabilities where necessary to afford those individuals an equal
opportunity to benefit from the recipient's program or activity.
Proposed Sec. 84.77(b)(2) provided criteria for determining which
auxiliary aid is appropriate. It stated that in order for auxiliary
aids to be effective, they 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.
Proposed Sec. 84.77(c) provided specifics regarding interpreters.
It stated that recipients cannot require an individual with a
disability to bring another individual to interpret. Nor can a
recipient rely on an adult accompanying an individual with a disability
to interpret or facilitate communication except in an emergency or when
an individual with a disability specifically requests that the adult
interpret, the adult agrees, and reliance on the adult is appropriate.
Minor children cannot interpret except in an emergency when there is an
imminent threat and no interpreter is available.
Proposed Sec. 84.77(d) set forth specific standards that a
recipient must meet if it chooses to provide qualified interpreters via
video remote interpreting services.
The comments and our responses regarding Sec. 84.77 are set forth
below.
[[Page 40123]]
Comment: Almost all of the commenters supported ensuring that
recipients communicate effectively with people with disabilities.
Disability rights organizations, recipient organizations, and
individuals acknowledged that in the absence of appropriate auxiliary
aids and services, people with disabilities are denied access to
recipient programs and activities, including health care.
Response: The Department agrees that effective communication with
people with disabilities is a critical right that benefits members of
the public and recipients. The provision of sign language interpreters,
Braille documents, and other appropriate auxiliary aids and services
helps people with disabilities fully participate in and enjoy the
benefits of recipient programs and activities from which they would
otherwise be excluded on the basis of their disability. The importance
of effective communication cannot be overstated in the context of
health and human services, which is why the Department proposed the
updates in subpart H of this rulemaking.
Comment: Many commenters described the importance of effective
communication and provided firsthand accounts of instances where they
were unable to receive health care because recipients did not provide
them with auxiliary aids or services or reasonable modifications. For
example, commenters relayed instances where American Sign Language
interpreters were not provided even after a patient request,
information was not provided in plain language for people with
intellectual disabilities, and staff denied patients appropriate
auxiliary aids and services due to appointment time constraints. Many
of these commenters also discussed the importance of providing
effective communication for companions.
Response: Unfortunately, the Department is aware of many instances
where people with disabilities were discriminated against because
recipients denied them effective communication. The Department has
investigated and resolved many such instances and is aware that other
Federal agencies have done likewise.\122\ The Department and other
Federal agencies have issued numerous guidance documents to attempt to
further educate recipients on their effective communication
responsibilities.\123\ The Department added subpart H to the proposed
rule because despite existing communication requirements for people
with disabilities, it is apparent that some recipients are not
providing effective communication to people with disabilities.
---------------------------------------------------------------------------
\122\ See e.g., U.S. Dep't of Health & Human Servs., Off. for
Civil Rights, HHS Office for Civil Rights Takes Action to Ensure
Effective Communication for Those Who Are Deaf or Hard of Hearing
(Nov. 9, 2022), https://www.hhs.gov/about/news/2022/11/09/hhs-office-for-civil-rights-takes-action-to-ensure-effective-communication-for-those-who-are-deaf-or-hard-of-hearing.html; U.S.
Dep't of Justice, Justice Department Secures Agreement with Hospital
to Ensure Effective Communication with Deaf Patients and Companions
(Jan. 4, 2022), https://www.justice.gov/opa/pr/justice-department-secures-agreement-hospital-ensure-effective-communication-deaf-patients.
\123\ See U.S. Dep't of Health & Human Servs., Off. for Civil
Rights, Disability Resources for Effective Communication, https://www.hhs.gov/civil-rights/for-individuals/special-topics/hospitals-effective-communication/disability-resources-effective-communication/index.html.
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Comment: The majority of the commenters voiced support for
requiring that all recipients, regardless of employee size, provide
appropriate auxiliary aids and services to people with disabilities.
Previously, Sec. 84.52(d)(2) only required recipients with fewer than
fifteen employees to provide auxiliary aids and services when the
Director of OCR required those recipients to do so. Commenters stated
that advancements in technology have made auxiliary aids and services
affordable and attainable for recipients regardless of their size,
eliminating the need for any exception. Those commenters also stated
that the absence of appropriate auxiliary aids and services among small
health care practices leads to disproportionate harm to patients with
disabilities who are denied health care. One commenter requested that
the Department maintain an exception for recipients with fewer than
fifteen employees due to concerns that providing appropriate auxiliary
aids and services would be too costly for small recipients.
Response: The Department agrees with the majority of commenters
that effective communication is critical for people with disabilities,
and that harm from a denial of effective communication for a person
with a disability is the same regardless of the size of a recipient.
Additionally, the Department expects that auxiliary aids and services
are affordable and attainable for many recipients. 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. In addition, 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. Further, on December 19, 2000, the Department issued a
notice in the Federal Register that it was exercising its authority
under Sec. 84.52(d)(2) to require 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.\124\
Accordingly, recipients with fewer than fifteen employees have been on
notice since December of 2000 that the Department interprets section
504 to require all recipients, regardless of size, to provide
appropriate auxiliary aids and services. The Department is
incorporating this obligation to provide appropriate auxiliary aids and
services in the final rule.
---------------------------------------------------------------------------
\124\ 65 FR 79368 (Dec. 19, 2000).
---------------------------------------------------------------------------
Plain Language
Comment: Many individuals and organizations submitted comments on
the importance of providing plain language in health and human service
programs and activities. Many commenters stated that plain language is
a necessity that benefits all individuals, regardless of whether they
have a disability. Some commenters stated that other groups, including
individuals with limited English proficiency and people with lower
education levels, would also benefit from the increased use of plain
language. Through plain language, people with disabilities will have a
better understanding of the services they are eligible for and may even
be able to avoid unnecessary outcomes such as guardianships or the
removal of children. Some commenters stated that plain language alone
will not ensure effective communication for all people with
disabilities and asked the Department to also require that recipients
provide information through other means, such as audio or visual
versions of certain standard language.
Response: The Department agrees that plain language may benefit
individuals seeking to access a recipient's programs and activities,
including individuals with disabilities. The Department also agrees
that plain language alone will not be sufficient to ensure effective
communication for people with disabilities in all circumstances,
including for some people with intellectual or developmental
disabilities. This Communications subpart provides detailed measures
that
[[Page 40124]]
should be taken to ensure effective communication for individuals with
disabilities.
Comment: Many commenters recommended that the Department emphasize
that plain language is a reasonable modification that can be made
available to people with disabilities upon request when necessary to
avoid discrimination. These commenters reasoned that while plain
language may be vitally important for people with certain disabilities
to understand important health or human service information, it will
not be necessary or even beneficial in every circumstance.
Alternatively, many commenters recommended that the Department specify
that plain language is an auxiliary aid that a recipient must provide,
when appropriate, to ensure effective communication for people with
disabilities. One commenter stated that plain language should only be a
recommended best practice and should not be an auxiliary aid or
reasonable modification under this rulemaking because of the cost for
recipients. One commenter recommended requiring specific standards to
define plain language. Finally, some commenters requested additional
technical assistance and guidance from the Department on what
constitutes plain language and what recipients are required to provide
to people with disabilities.
Response: As noted in the preamble to the NPRM, and consistent with
title II of the ADA, providing information in plain language under some
circumstances may be a reasonable modification a recipient may have to
provide to avoid discrimination. It may also be a strategy recipients
could use to improve their communications with people with
disabilities. The Department appreciates the range of comments on this
important issue and recognizes there are benefits and limitations to
both methods of characterization.
Because of the wide range of situations in which the need for plain
language could arise, the Department wants to preserve flexibility for
both individuals with disabilities and recipients while limiting
burdens. The Department notes that the effective communication
provision of Sec. 84.77(a)(1) requires recipients to take steps to
ensure that their communications with individuals with disabilities are
``as effective as'' communications with others. In addition, reasonable
modifications in Sec. 84.68(b)(7)(i) are required when necessary to
avoid discrimination on the basis of disability. Whether plain language
is a reasonable modification in any given case will depend on
particular facts, including the cost to the recipient of providing
plain language materials or information. Because plain language may
already be required by other provisions, including Sec.
84.68(b)(7)(i), the Department declines to adopt any additional
regulatory text on plain language. Accordingly, the Department will
retain the current language in the preamble to the proposed rule that
states plain language may be a reasonable modification to help ensure
effective communication for people with disabilities.
Augmentative and Alternative Communication
Comment: Several commenters discussed augmentative and alternative
communication (AAC) devices and voiced support for their inclusion in
the rulemaking. Most of those commenters agreed that AAC may be an
auxiliary aid or service to ensure effective communication for people
with certain disabilities. Some also stated the Department should alter
the definition of auxiliary aids and services to explicitly include
AAC. Similarly, some commenters thought that the Department should
provide a comprehensive definition of AAC in the rulemaking. One
commenter stated a belief that the rulemaking should require recipients
to provide training on the use of AAC devices for people with
disabilities. One commenter stated that AAC may be a reasonable
modification to provide effective communication.
Response: The Department appreciates the support for inclusion of
language on AAC in the rulemaking and agrees that AAC may be an
effective method for people with certain disabilities to communicate
with recipients. The preamble to this section in the proposed rule
noted that the definition for auxiliary aids and services is open-ended
and allows for AAC as an appropriate auxiliary aid or service when
necessary to ensure effective communication for people with
disabilities. Because of this definition for auxiliary aids and
services, it is not necessary at this time to edit the definition of
auxiliary aids and services to explicitly include AAC, or to provide an
extensive definition of AAC. The definition of auxiliary aids and
services is purposefully drafted to ensure that it is inclusive of
unnamed services and actions that provide effective communication.
Whether training on the use of AAC devices would be a reasonable
modification to policies, practices, or procedures, as required by this
rulemaking, depends on specific facts.
Comment: One commenter recommended specific minor edits to the
language of subpart H to make communication requirements more expansive
and clarify how they apply to people with a variety of disabilities.
Similarly, some commenters requested additional examples be added to
the list of auxiliary aids and services, additional standards for
measuring effective communication, and additional general requirements
for communication with people with disabilities.
Response: The Department appreciates the recommendations from
commenters concerning additional edits to effective communication
requirements and the definition of auxiliary aids and services. We
acknowledge the recommendations for additions to the language of the
regulatory text for additional instances that would amount to effective
communication or provide clarity that certain auxiliary aids and
services are covered by the rulemaking, but we decline to incorporate
the suggested changes. The current definition of auxiliary aids and
services already adequately covers the recommendations from the
commenters. The definition of ``auxiliary aids and services'' in the
definitions section at Sec. 84.10 contains a phrase that says that
auxiliary aids and services include ``other similar services and
actions.'' The current definition allows for additional auxiliary aids
not contained in the preceding lists. We will retain the proposed
language, which aligns with the communication requirements of the
regulations under title II of the ADA.
Summary of Regulatory Changes
For the reasons set forth above and considering the comments
received, we are finalizing Sec. 84.77 as proposed with no
modifications.
Telecommunications (Sec. 84.78)
Proposed Sec. 84.78 set forth the requirements that a recipient
must meet when it communicates with applicants and beneficiaries by
telephone or an automated-attendant system. Proposed Sec. 84.78(a)
stated that when a recipient communicates by telephone, 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.
Proposed Sec. 84.78(b) stated that when an automated-attendant
system is used, that system must provide effective real-time
communication with individuals using auxiliary aids and services.
[[Page 40125]]
Proposed Sec. 84.78(c) stated that 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.
Comment: An organization that represents individuals with
disabilities said that they appreciated the requirement in Sec.
84.78(b) that when a recipient uses an automated-attendant system,
real-time communication must be provided. However, they asked us to
underscore that when using such a system, individuals must be able to
opt out of the system and speak with a live representative.
Response: The Department appreciates the commenters' feedback. In
order to be consistent with the title II ADA regulations, we decline to
add any requirements to this section. However, we strongly urge
recipients to have a way to communicate with a live person when using
automated-attendant systems.
Summary of Regulatory Changes
For the reasons set forth above and considering the comments
received, we are finalizing Sec. 84.78 as proposed with no
modifications.
Telephone Emergency Services (Sec. 84.79)
Proposed Sec. 84.79 stated that telephone emergency services must
provide direct access to individuals who use TTYs and computer modems.
Comment: The Department received some comments supportive of this
section. One commenter suggested that, in addition to 911, the section
should refer to 988 which is the national suicide and crisis hotline.
Response: The Department appreciates the commenter's suggestion.
However, there are other hotlines funded by the Department that also
could potentially be listed by name in addition to the regulatory
reference to telephone emergency services. Any such list could quickly
become outdated and could cause confusion if inconsistent with the
analogous provision of the regulation implementing title II of the ADA.
Rather than list every hotline, the Department will keep the section as
written.
Summary of Regulatory Changes
For the reasons set forth above and considering the comments
received, we are finalizing Sec. 84.79 as proposed with no
modifications.
Information and Signage (Sec. 84.80)
Proposed Sec. 84.80(a) stated that recipients must ensure that
interested persons including those with impaired vision or hearing can
obtain information as to existence and location of accessible services,
activities, and facilities. Section 84.80(b) stated that recipients
must provide signage at all inaccessible entrances directing users to
an accessible entrance or to a location where they can obtain
information about accessible facilities. The international symbol for
accessibility must be used at each accessible entrance of a facility.
Comments: The Department received a few comments on this section.
One commenter asked that the section include a reference to individuals
with language disorders such as aphasia. Another commenter asked
whether the information and signage requirements apply to recipients'
facilities that are not open to the public. The commenter noted the
challenges of securing in-person Certified Deaf Interpreters and
problems with relying on TTY State-operated phone lines.
Response: With regard to the request that we add language disorders
to the text of the section, we note that coverage is not limited to
individuals with impaired vision or hearing. The section requires that
recipients ensure that all interested persons, including those with
impaired vision or hearing, can obtain the information. We decline to
add the requested language since the section already covers individuals
with language disorders.
In response to the commenter's question about where signage must be
placed, the requirement applies to all inaccessible entrances to each
of a recipient's facilities. The Department recognizes the challenges
that may be involved in complying with the regulations and notes that
Sec. 84.81 sets forth the duties of recipients when an action would
result in a fundamental alteration or undue financial and
administrative burdens.
Summary of Regulatory Changes
For the reasons set forth above and considering the comments
received, we are finalizing Sec. 84.80 as proposed with no
modifications.
Duties (Sec. 84.81)
Proposed Sec. 84.81 stated that subpart H does not require
recipients to take an action that would result in a fundamental
alteration in the nature of a program or activity or undue financial
and administrative burdens. It sets forth details about how that
determination is to be made.
The comments and our responses regarding Sec. 84.81 are set forth
below.
Comment: Many recipient organizations voiced their support for the
proposed exceptions concerning fundamental alteration or undue
administrative and financial burdens. Recipient organizations noted
that some small providers may find it difficult to pay for auxiliary
aids and services and may rely on the exceptions. Many recipient
organizations also requested that the Department provide additional
guidance on instances where providing auxiliary aids or services would
result in a fundamental alteration or undue burden. Some recipient
organizations also requested that the Department provide additional
funding or establish resource centers to provide auxiliary aids or
services on behalf of recipients.
Response: As the commenters note, under proposed Sec. 84.81,
recipients would not be required to provide specific auxiliary aids or
services, or take a specific action to ensure effective communication,
if doing so would result in a fundamental alteration in the nature of a
program or activity or in undue financial and administrative burdens.
However, a recipient would still be required to take any other action
that would not result in such an alteration or such burdens while
providing effective communication to the maximum extent possible. For
example, even if one type of auxiliary aid or service requested by the
person with a disability would result in a fundamental alteration of
the program or activity in question, if another appropriate auxiliary
aid or service exists that would assist effective communication without
fundamentally altering the program or activity, the recipient is
required to offer that other auxiliary aid or service.
Effective communication, including provision of auxiliary aids and
services, has been required for decades by the original section 504
implementing regulation, titles II and III of the ADA, and more
recently the implementing regulation for section 1557 of the ACA, and
numerous guidance documents on the topic already exist.\125\ The
Department remains committed to providing technical assistance and
education to help recipients understand their legal obligations and so
that individuals understand their rights.
---------------------------------------------------------------------------
\125\ See U.S. Dep't of Justice, ADA Requirements: Effective
Communication (Feb. 28, 2020), https://www.ada.gov/resources/effective-communication/#auxiliary-aids-and-services; U.S. Dep't of
Health & Human Servs., Off. for Civil Rights, Disability Resources
for Effective Communication, https://www.hhs.gov/civil-rights/for-individuals/special-topics/hospitals-effective-communication/disability-resources-effective-communication/index.html.
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[[Page 40126]]
Summary of Regulatory Changes
For the reasons set forth above and considering the comments
received, we are finalizing Sec. 84.81 as proposed without
modifications.
Subpart I--Web, Mobile, and Kiosk Accessibility \126\
---------------------------------------------------------------------------
\126\ The Department of Justice recently promulgated new
regulations implementing title II of the ADA to establish specific
requirements, including the adoption of specific technical
standards, for making accessible the web content and mobile apps
that public entities provide or make available. See regulation to be
codified at 28 CFR part 35, subpart H. The Department has made every
effort to align its regulations on the accessibility standards in
subpart I with DOJ's regulations, to maximize consistency in the
obligations for web and mobile apps for recipients covered under
section 504 and public entities covered under title II. Please refer
to DOJ's rule, including Appendix D to the regulation implementing
title II, for additional guidance related to this subpart.
---------------------------------------------------------------------------
Proposed subpart I addressed requirements related to providing
accessible web content, mobile applications, and kiosks.
The Department proposed to add six definitions relevant to this
subpart to the Definitions section in the newly redesignated Sec.
84.10. We invited comment on the following questions regarding the
definitions:
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.'' \127\
---------------------------------------------------------------------------
\127\ W3C[supreg], Web Content Accessibility Guidelines 2.1
(June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and
https://perma.cc/UB8A-GG2F.
---------------------------------------------------------------------------
The comments and responses regarding the definitions are set forth
below.
Comment: Many commenters stated that the proposed definition of
``conventional electronic documents'' should be non-exhaustive to allow
for broader application, such as other video, audio, image,
spreadsheet, data files, and new content that has not yet been
developed. Some commenters objected to the possibility of an open-ended
definition and prefer the proposed definition the Department provided
because they are concerned that allowing too much flexibility will lead
to confusion among recipients and the general public as to what is
covered.
Some commenters opposed the inclusion of ``database file formats''
in the definition of conventional electronic documents because database
files and some spreadsheet files may include data that are not
primarily intended to be human-readable. The commenters stated that in
many cases such content is intended to be opened and analyzed with
other special software tools and that data that is not primarily
intended to be human-readable is equally accessible for individuals
with disabilities and individuals without disabilities.
Response: The Department declines to change its approach to
defining conventional electronic documents. The Department expects that
a more flexible definition would result in less predictability for both
recipients and individuals with disabilities, especially because the
Department does not currently have sufficient information about how
technology will develop in the future. The Department seeks to avoid
such uncertainty because the definition of conventional electronic
documents sets the scope of two exceptions, Sec. 84.85(b) and (d). The
Department carefully balanced benefits for individuals with
disabilities with the challenges recipients face in making their web
content and mobile apps accessible in compliance with this final rule
when crafting these exceptions, and the Department does not want to
inadvertently expand or narrow the exceptions with a less predictable
definition of conventional electronic documents.
Based on the comments received, the Department has decided to
delete database file formats from the definition of conventional
electronic documents. Database files may be less commonly available
through recipients' web content and mobile apps than other types of
documents. To the extent that such files are provided or made available
by recipients, the Department understands that they would not be
readable by either individuals with disabilities or individuals without
disabilities if they only contain data that are not primarily intended
to be human-readable. Therefore, there would be limited accessibility
concerns, if any, that fall within the scope of the rule associated
with documents that contain data that are not primarily intended to be
human-readable. Accordingly, the Department believes it could be
confusing to include database file formats in the definition. However,
the Department notes that while there may be limited accessibility
concerns, if any, related to database files containing data that are
not primarily intended to be human-readable, recipients may utilize
these data to create outputs for web content or mobile apps, such as
tables, charts, or graphs posted on a web page, and those outputs would
be covered by the rule unless they fall into another exception.
The Department declines to make additional changes to the list of
file formats included in the definition of conventional electronic
documents. After reviewing the range of different views expressed by
commenters, the Department believes the current list strikes the
appropriate balance between ensuring access for people with
disabilities and feasibility for recipients so that they can comply
with this rule. The list included in the definition is also aligned
with the Department's intention to cover documents that recipients
commonly make available in either an electronic form or that would have
been traditionally available as physical printed output. If recipients
provide and make available files in formats not included in the
definition, the Department notes that those other files may qualify for
the exception in Sec. 84.85(a) if they meet the definition for
archived web content, or the exception in Sec. 84.85(e) for certain
preexisting social media posts if they are covered by that exception's
description. To the extent those other files are not covered by one of
the exceptions in Sec. 84.85, the Department also notes that
recipients would not be required to make changes to those files that
would result in a fundamental alteration in the nature of a program or
activity, or impose undue financial and administrative burdens,
consistent with Sec. 84.88.
Comment: Regarding the definition of ``kiosks,'' many commenters
stated that they support a broad definition of kiosks that goes beyond
the Department's proposed definition. Specifically, some commenters
stated that anything with a user interface in a health care setting
should be considered a kiosk. Other commenters proposed including a
variety of physical devices that provide
[[Page 40127]]
a variety of services through both closed and open functionality.
Response: The comments received covered a wide range of responses
on definitions for kiosks. We note that the Access Board is currently
engaged in the early stages of rulemaking around self-service
transaction machines and self-service kiosks.\128\ In part because of
the wide range of responses that generally do not agree on a single
definition, the Department does not believe it is appropriate to make
changes to the definition of kiosks in this rulemaking. A broader
definition of kiosks runs the risk of overclassifying devices used in a
health or human services setting as a kiosk, while identifying specific
types of physical devices could leave out devices that otherwise
perform all of the functions normally attributed to kiosks. Because of
the range of comments received, and because the Access Board is
currently working towards addressing this issue in its own rulemaking,
the Department will finalize its definition of kiosks in this rule
without change from the proposed rule. Once the Access Board has
finalized its rulemaking, the Department may consider addressing any
additional issues raised with the Access Board's guidelines.
---------------------------------------------------------------------------
\128\ 87 FR 57662 (Sept. 21, 2022).
---------------------------------------------------------------------------
Comment: Regarding the definition of ``web content,'' some
commenters opined that the definition should more closely align with
the definition included in WCAG 2.1, especially since the proposed rule
would include WCAG 2.1. Some of those commenters stated that a
different definition would cause confusion among technical experts.
One commenter expressed approval of the proposed definition while
another requested general clarification of what is covered and what
specific content will have to be accessible under the proposed rule.
Response: The Department appreciates the comments and has decided
to alter the definition of web content to more closely align with the
definition in WCAG 2.1. The Department's definition in the NPRM was
based on the WCAG 2.1 definition but was slightly less technical and
intended to be more easily understood by the public generally. The
Department decided to align the definition of ``web content'' with the
definition in WCAG 2.1 in the final rule to avoid confusion, ensure
consistency in application of WCAG 2.1, and assist technical experts in
implementing this rule. Consistent with the suggestion of commenters,
the Department believes this approach minimizes possible inadvertent
conflicts between the type of content covered by the Department's
regulatory text and the content covered by WCAG 2.1. Accordingly, the
Department will use the WCAG 2.1 definition but also include the
specific examples in a second sentence. This second sentence may be
particularly useful for members of the public without a technical
background.
Beyond the definition provided, as well as the preamble language
explaining the definition, the Department remains committed to
providing technical assistance and guidance to recipients so that they
are able to fully comply with this rule. We also note that there is a
period for recipients to become familiar with the web content
compliance obligations before they come into effect, which will be two
or three years depending on the size of the recipient.
The Department also added a definition for ``user agent.'' The
definition exactly matches the definition of user agent in WCAG
2.1.\129\ WCAG 2.1 includes an accompanying illustration, which
clarifies that the definition of user agent means ``[w]eb browsers,
media players, plug-ins, and other programs--including assistive
technologies--that help in retrieving, rendering, and interacting with
web content.'' \130\
---------------------------------------------------------------------------
\129\ See W3C, Web Content Accessibility Guidelines 2.1 (June 5,
2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/ [https://perma.cc/R6KE-BX3U].
\130\ Id.
---------------------------------------------------------------------------
The Department added this definition to the final rule to ensure
clarity of the term ``user agent,'' which appears in the definition of
``web content'' requested by commenters and now adopted by the
Department. As discussed, the Department has more closely aligned the
definition of ``web content'' in the final rule with the definition in
WCAG 2.1. Because this change introduced the term ``user agent'' into
the section 504 regulation, and the Department does not believe this is
a commonly understood term, the Department has added the definition of
``user agent'' provided in WCAG 2.1 to the final rule. The Department
also believes adding this definition in the final rule is consistent
with the suggestions of commenters who proposed aligning the definition
of ``web content'' with the definition in WCAG 2.1.
Accordingly, we are finalizing the definition of ``kiosks'' with no
modifications, editing ``conventional electronic documents'' and ``web
content,'' and adding the definition of ``user agent,'' in Sec. 84.10.
As further discussed in the preamble to subpart A and Sec. 84.85(a),
we are also revising the definition of ``archived web content.''
Application (Sec. 84.82)
Proposed Sec. 84.82 stated that this subpart applies to all
programs and activities that receive Federal financial assistance from
the Department.
The Department is finalizing Sec. 84.82 as proposed.
Accessibility of Kiosks (Sec. 84.83)
Proposed Sec. 84.83 articulated a general nondiscrimination
requirement for programs and activities provided through kiosks.
The comments and our responses regarding Sec. 84.83 are set forth
below.
Comment: Many commenters expressed support for the inclusion of
kiosks in the proposed rule, noting that kiosks have become more
prevalent in health care settings and that often these kiosks are not
accessible for people with disabilities. Many of these same commenters
stated that the Department should require specific accessibility
standards for kiosks beyond the general accessibility requirement
proposed. Some commenters proposed specific functional standards that
they believe are important for kiosk accessibility. Some commenters
expressed approval of allowing for recipients to provide alternate
methods for people with disabilities to access the programs and
activities typically offered through kiosks, such as personnel to check
in patients in a waiting area.
Response: The expanded use of kiosks, especially in medical
settings, has allowed for recipients to automate portions of their
programs and activities, but recipients must take into account the
needs of people with disabilities in order to comply with civil rights
laws, including section 504. Current Federal laws and regulations
require the accessibility of all programs and activities of recipients
of Federal financial assistance, including those provided through
kiosks.\131\ However, the Department believes it is necessary to
include a general nondiscrimination provision specific to kiosks in
this rulemaking because of how prevalent they have become and because
if they
[[Page 40128]]
are not designed with people with disabilities in mind they may serve
as barriers to recipient programs and activities. Accordingly, the
Department is finalizing a provision highlighting the application of
general nondiscrimination requirements to recipients that use kiosks in
their programs and activities.
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\131\ See, e.g., 45 CFR 92.104; 45 CFR 84.4, redesignated as
Sec. 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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While there is support among commenters for the rulemaking to
impose measurable accessibility standards for kiosks, similar to those
required of web content, mobile applications, and medical diagnostic
equipment (MDE) in this rulemaking, the Department does not believe
that is feasible at this time. While WCAG 2.1 and the Access Board's
MDE Standards were both created after years of research, input, and
testing, no comparable standard currently exists for kiosks, except to
the extent that kiosks rely on web content or mobile apps as defined in
Sec. 84.10. The Access Board submitted an advanced notice of proposed
rulemaking that sought public comment on requirements for self-service
transaction machines, but that rulemaking has not been finalized.\132\
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\132\ 87 FR 57662 (Sept. 21, 2022).
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Recipients that use kiosks must make their programs accessible to
persons with disabilities and may do so 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.\133\ 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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\133\ 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. 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.
Summary of Regulatory Changes
For the reasons set forth above and considering the comments
received, we are finalizing Sec. 84.83 as proposed without
modifications.
Requirements for Web and Mobile Accessibility (Sec. 84.84)
Proposed Sec. 84.84(a) stated that recipients must ensure their
web content and mobile applications made available to members of the
public or used to offer programs or activities to members of the public
must be readily accessible to and usable by individuals with
disabilities.
Proposed Sec. 84.84(b) required that recipients ensure their web
content and mobile applications made available to members of the public
or used to offer programs or activities to members of the public comply
with the success criteria and conformance requirements of WCAG 2.1
Level A and Level AA within two or three years of the publication of
this rule, depending on whether the recipient has fifteen or more
employees, or fewer than fifteen employees, respectively. The section
incorporated WCAG 2.1 by reference.
We invited comment on 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?
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?
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?
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?
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 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?
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?
Web Accessibility Question 15: Should the Department
consider a
[[Page 40129]]
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?
The comments and our responses regarding Sec. 84.84 are set forth
below.
Comment: Some commenters expressed concern that, as written, the
rule would not apply to third party vendors that recipients contract
with to create and maintain web content or mobile apps. Commenters
noted that many recipients rely on third parties to create or update
their web content and mobile apps, and that any rulemaking that does
not clearly address those third parties would risk causing confusion
and noncompliance.
Response: As the Department made clear in the preamble of the
proposed rule, its intent is that websites operated on behalf of a
recipient by a third party be covered by the rule. Based on the
comments it received, the Department has determined that it should edit
Sec. Sec. 84.84(a)(1) and (2) and (b)(1) and (2) and 84.85(c) to make
clear that the general requirements for web content and mobile app
accessibility apply when a recipient, ``directly or through
contractual, licensing, or other arrangements,'' provides or makes
available web content or mobile apps. These edits will dispel any doubt
that recipients cannot delegate away their obligations under section
504.
The phrase ``directly or through contractual, licensing, or other
arrangements'' comes from existing regulatory language in section 504.
The section on general prohibitions against discrimination in the
existing section 504 regulation says that ``[a] recipient, in providing
any aid, benefit, or service, may not, directly or through contractual,
licensing, or other arrangements, on the basis of disability'' engage
in various forms of discrimination.\134\ The Department intentionally
used the same phrasing in this rule to indicate that where recipients
act through third parties using contractual, licensing, or other
arrangements, they are not relieved of their obligations under this
subpart.
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\134\ 45 CFR 84.4(b)(1) and (4).
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Further, the Department notes that the phrase ``provides or makes
available'' in Sec. 84.84 is not intended to mean that Sec. 84.84
only applies where the recipient created or owns the web content or
mobile app. The plain meaning of ``make available'' includes situations
where a recipient relies on a third party to operate or furnish
content. Section 84.84 means that recipients provide or make available
web content and mobile apps even where recipients do not design or own
the web content or mobile app, if there is a contractual, licensing, or
other arrangement through which the recipient uses the web content or
mobile app to provide a program or activity.
The Department made another minor revision to Sec. 84.84(a)(1) and
(2). In the NPRM, Sec. 84.84(a)(1) and (2) applied to web content and
mobile apps that a recipient ``makes available to members of the public
or uses to offer programs or activities to members of the public.''
\135\ In the final rule, the Department revised Sec. 84.84(a)(1) and
(2) to apply to web content and mobile apps that a recipient ``provides
or makes available.'' The Department also made corresponding revisions
to the language of Sec. 84.84(b)(1) and (2). The Department notes that
the revised language does not change or limit the coverage of the final
rule as compared to the NPRM. Rather, this change ensures consistency
between the regulations implementing section 504 and title II of the
ADA, respectively, and the broad coverage that both regulatory
frameworks provide. The Department's section 504 regulation, at Sec.
84.2, applies to all programs or activities of recipients; the title II
regulation, at 28 CFR 35.102, states that the regulation applies to all
services, programs, and activities ``provided or made available'' by
covered entities. The Department therefore employs the ``provided or
made available'' language in the final rule to avoid introducing
confusion as to scope of coverage for recipients covered by both
frameworks and maintain consistency between section 504 and title II.
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\135\ 88 FR 63392, 63509 (Sept. 14, 2023).
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Comment: Almost all of the comments on subpart I supported the
general concept of requiring that the web content, mobile applications,
and kiosks used by recipients be accessible to people with
disabilities. Commenters noted the importance of web content, mobile
applications, and kiosks in the delivery of health care, including
their expanded importance during the COVID-19 Public Health Emergency,
and pointed out specific instances where the only way to access a
recipient's programs and activities was through web content, mobile
applications, and kiosks. Commenters also stated that there are severe
consequences when recipients do not provide accessible web content,
mobile applications, and kiosks, including barriers to access to
necessary health care, poor health outcomes, and even death for people
with disabilities. Many commenters noted that some current web content,
mobile applications, and kiosks are not designed with accessibility in
mind, meaning that people with certain disabilities are unable to use
them. Many commenters also expressed their agreement with the concept
of a set standard to provide recipients and individuals certainty when
determining whether web content, mobile applications, and kiosks are
accessible under the law.
Response: The Department appreciates the comments and agrees that
ensuring web content, mobile applications, and kiosks that recipients
provide or make available are accessible to people with disabilities is
necessary to avoid discrimination, health disparities, and poor
outcomes. Recipients are increasingly using technology as part of their
programs and activities, and unless that technology is accessible,
people with disabilities will be left behind. The Department believes
that adopting technical standards for web content and mobile app
accessibility provides clarity to recipients regarding how to make
accessible the programs and activities they offer via the web and
mobile apps. Adopting specific technical standards for web content and
mobile app accessibility also provides individuals with disabilities
with consistent and predictable access to the web content and mobile
apps of recipients. Web content, mobile apps, and kiosks already play a
large role in the health and human services programs and activities
offered by recipients, and that role will likely continue to grow in
the future. This rulemaking is necessary given these realities.
Comment: A minority of commenters expressed displeasure with
certain aspects of proposed subpart I, including a concern that any new
requirements for web content, mobile app, and kiosk accessibility would
result in financial burdens that would cause small clinics to shut
down. One commenter also expressed opposition to preamble language that
stated a phone line operated 24 hours a day, 7 days a week, would not
be an acceptable alternative to providing accessible web content,
mobile applications, and kiosks.
Response: The Department appreciates the concerns of these
[[Page 40130]]
commenters and has taken steps to reduce burdens on small recipients.
Under Sec. 84.84(b)(2) of the final rule, small recipients, like all
other recipients, need to conform to WCAG 2.1 Level AA,\136\ but small
recipients have three years, instead of the two years provided to
larger recipients, to come into compliance. In addition, small
recipients (like all recipients) can rely on the five exceptions set
forth in Sec. 84.85, in addition to the other mechanisms that are
designed to make it feasible for all recipients to comply with the
rule, as set forth in Sec. Sec. 84.86, 84.87, 84.88, and 84.89.
Recipients are not required to take action that would constitute a
fundamental alteration in the nature of a program or activity or an
undue financial or administrative burden. As discussed in the
NPRM,\137\ and consistent with DOJ's 2022 guidance on web accessibility
\138\ and DOJ's recent proposed title II rulemaking,
``Nondiscrimination on the Basis of Disability; Accessibility of Web
Information and Services of State and Local Government Entities,''
\139\ the Department does not believe that a phone line, even if it is
staffed 24 hours a day, can realistically provide equal opportunity to
people with disabilities. Websites--and often mobile apps--allow
members of the public to get information or request a service within
just a few minutes, and often to do so independently. Getting the same
information or requesting the same service using a staffed phone line
takes more steps and may result in wait times or difficulty getting the
information. In addition, a staffed telephone line may not be
accessible to someone who is deafblind, or who may have combinations of
other disabilities, such as a coordination issue impacting typing; and
an audio processing disability impacting comprehension over the phone.
However, such individuals may be able to use web content and mobile
apps that are accessible.
---------------------------------------------------------------------------
\136\ The Web Accessibility Initiative published some revisions
to WCAG 2.1 on September 21, 2023. See W3C, Web Content
Accessibility Guidelines (WCAG) 2.1 (Sept. 21, 2023), https://www.w3.org/TR/WCAG21/ [https://perma.cc/4VF7-NF5F]. However, this
rule requires conformance to the version of WCAG 2.1 that was
published in 2018. W3C, Web Content Accessibility Guidelines 2.1
(June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and
https://perma.cc/UB8A-GG2F. The Department believes that recipients
have not had sufficient time to become familiar with the 2023
version. Recipients also may not have had an adequate opportunity to
comment on whether the Department should adopt the 2023 version,
which was published after the NPRM was published. One recent
revision to WCAG 2.1 relates to Success Criterion 4.1.1, which
addresses parsing. W3C has described Success Criterion 4.1.1 as
``obsolete'' and stated that it ``is no longer needed for
accessibility.'' W3C, WCAG 2 FAQ, https://www.w3.org/WAI/standards-guidelines/wcag/faq/#parsing411 [https://perma.cc/24FK-V8LS] (Oct.
5, 2023). According to the 2023 version of WCAG, Success Criterion
4.1.1 ``should be considered as always satisfied for any content
using HTML or XML.'' W3C, Web Content Accessibility Guidelines
(WCAG) 2.1 (Sept. 21, 2023), https://www.w3.org/TR/WCAG21/ [https://perma.cc/4VF7-NF5F]. The Department believes that either adopting
this note from the 2023 version of WCAG or not requiring conformance
to Success Criterion 4.1.1 is likely to create significant
confusion. And although Success Criterion 4.1.1 has been removed
from WCAG 2.2, W3C, WCAG 2 FAQ, https://www.w3.org/WAI/standards-guidelines/wcag/faq/#parsing411 [https://perma.cc/45DS-RRYS] (Oct.
5, 2023), the Department has decided not to adopt WCAG 2.2 for the
reasons described herein. Therefore, conformance to Success
Criterion 4.1.1 is still required by this rule. Recipients that do
not conform to Success Criterion 4.1.1 would nonetheless be able to
rely on Sec. 84.89 to satisfy their obligations under this rule if
the failure to conform to Success Criterion 4.1.1 would not affect
the ability of individuals with disabilities to use the recipient's
web content or mobile app in the manner described in that section.
The Department expects that this provision will help recipients
avoid any unnecessary burden that might be imposed by Success
Criterion 4.1.1.
\137\ 88 FR 63392, 63420 (Sept. 14, 2023).
\138\ U.S. Dep't of Justice, Guidance on Web Accessibility and
the ADA, ADA.gov (March 18, 2022), https://www.ada.gov/resources/web-guidance/ [https://perma.cc/WH9E-VTCY] (this guidance did not
include 24/7 staffed telephone lines as alternatives to accessible
websites).
\139\ 88 FR 51948, 51953 (Aug. 4, 2023) (stating that DOJ ``no
longer believes 24/7 staffed telephone lines can realistically
provide equal access to people with disabilities.'').
---------------------------------------------------------------------------
While existing civil rights laws, including the ADA and section
1557, already require that many of the recipients covered by section
504 make their web content, mobile apps, and kiosks accessible to
people with disabilities, the Department believes, and the majority of
commenters agree, that a regulation with a set standard is the most
effective method to ensure that recipients are fulfilling their civil
rights obligations.
Comment: Many commenters noted that in October of 2023, W3C issued
WCAG 2.2 and requested that the Department use WCAG 2.2 instead of WCAG
2.1 as the accessibility standard for web content and mobile apps in
this rulemaking. Those commenters stated that WCAG 2.2 includes new
success criteria and builds off of WCAG 2.1, providing additional
accessibility for people with disabilities without undermining key
provisions from WCAG 2.1. Some commenters stated that the appropriate
standards for this rulemaking are those set forth under the regulations
for section 508 of the Rehabilitation Act \140\ since it applies to all
information and communication technology (ICT) rather than just web
content. Some commenters also want the Department to impose additional
standards for specific file types, such as PDF/UA1 for pdfs. Some
commenters requested that the Department establish an evolving standard
that automatically upgrades to the most recently released WCAG version,
reasoning that both technology and standards to make that technology
accessible are constantly changing. One commenter stated that they hope
the Department will adopt whatever standard DOJ adopts in its title II
web content rulemaking to make compliance with multiple standards
easier for recipients that are covered by both rulemakings (89 FR
31320, April 24, 2024). Some commenters requested that there be no
standard for compliance and recipients would simply be encouraged to
conform to WCAG and make sure that their web content and mobile
applications are generally accessible.
---------------------------------------------------------------------------
\140\ 36 CFR part 1194, appendix A.
---------------------------------------------------------------------------
Response: The Department appreciates the range of responses
received and recognizes that there are various possible technical
standards for this rulemaking. The Department has determined that WCAG
2.1 Level AA \141\ is the most appropriate standard for this
rulemaking. As some commenters noted, WCAG 2.1 Level AA is a widely
used and accepted industry standard for accessibility, and requiring
conformance to WCAG 2.1 Level AA would result in a significant step
forward in ensuring access for people with disabilities. In addition,
because WCAG 2.1 Level AA was published in 2018, web developers and
recipients have had time to familiarize themselves with it. The WCAG
standards were designed to be ``technology neutral.'' \142\ This means
that they are designed to be broadly applicable to current and future
web technologies.\143\ Thus, WCAG 2.1 also allows web and mobile app
developers flexibility and potential for innovation. WCAG 2.1 Level AA
also includes success criteria addressing the accessibility of mobile
apps or web content viewed on a mobile device.
---------------------------------------------------------------------------
\141\ Conformance to Level AA requires satisfying the success
criteria labeled Level A as well as those labeled Level AA, in
addition to satisfying the relevant conformance requirements.
\142\ W3C, Introduction to Understanding WCAG (June 20, 2023),
https://www.w3.org/WAI/WCAG21/Understanding/intro [https://perma.cc/XB3Y-QKVU].
\143\ See W3C, Understanding Techniques for WCAG Success
Criteria (June 20, 2023), https://www.w3.org/WAI/WCAG21/Understanding/understanding-techniques [https://perma.cc/AMT4-XAAL].
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WCAG 2.2 was released on October 5, 2023, and adds six additional
Level A and AA success criteria beyond those included in WCAG 2.1 while
removing
[[Page 40131]]
the success criteria for parsing.\144\ The Department recognizes that
WCAG 2.2 is a newer standard, but in crafting this final rule the
Department sought to balance benefits for individuals with disabilities
with feasibility for recipients making their content accessible in
compliance with this rule. The Department believes there will be fewer
resources and less guidance available to web professionals and
recipients on the new success criteria in WCAG 2.2. Given the benefits
of WCAG 2.2 highlighted by commenters, some recipients might choose to
implement WCAG 2.2 to provide an even more accessible experience for
individuals with disabilities and to increase customer service
satisfaction. The Department notes that this rule provides for
equivalent facilitation in Sec. 84.87, meaning recipients could choose
to comply with this rule by conforming their web content to WCAG 2.2
Level AA because WCAG 2.2 Level AA provides substantially equivalent or
greater accessibility and usability to WCAG 2.1 Level AA. This would be
sufficient to meet the standard for equivalent facilitation in Sec.
84.87, which is discussed in more detail later.
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\144\ W3C[supreg], Web Content Accessibility Guidelines 2.2
(Oct. 5, 2023), https://www.w3.org/TR/WCAG22/.
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For several legal reasons, the Department is unable to adopt an
evolving standard that continuously updates to the newest version of
WCAG. First, the Department is incorporating WCAG 2.1 Level AA by
reference into this rule and must abide by the Office of the Federal
Register's regulation regarding incorporation by reference.\145\ This
regulation states that ``[i]ncorporation by reference of a publication
is limited to the edition of the publication that is approved [by the
Office of the Federal Register]. Future amendments or revisions of the
publication are not included.'' \146\ Accordingly, the Department only
incorporates a particular version of the technical standard and does
not state that future versions of WCAG would be automatically
incorporated into the rule. In addition, the Department has concerns
about regulating to a future standard of WCAG that has yet to be
created, of which the Department has no knowledge, and for which
compatibility with section 504 and recipients' content is uncertain.
The Department believes that adopting WCAG 2.1 as the technical
standard for this final rule is more appropriate than adopting WCAG
2.0. WCAG 2.1 provides for important accessibility features that are
not included in WCAG 2.0, and an increasing number of governmental
entities are using WCAG 2.1. 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.\147\ 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 success
criteria.\148\ And WCAG 2.0 is likely to become outdated or less
relevant more quickly than WCAG 2.1. As discussed above, WCAG 2.2 was
recently published and includes even more success criteria for
accessibility.
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\145\ See 1 CFR 51.1(f).
\146\ Id.
\147\ See, e.g., Exploring WCAG 2.1 for Australian government
services, Austl. Gov't Digital Transformation Agency (Aug. 22,
2018), https://www.dta.gov.au/blogs/exploring-wcag-21-australian-government-services. A Perma archive link was unavailable for this
citation; W3C, Denmark (Danmark) (updated Mar. 15, 2023), https://www.w3.org/WAI/policies/denmark/#bekendtg%C3%B8relse-om-afgivelse-af-tilg%C3%A6ngelighedserkl%C3%A6ring-for-offentlige-organers-websteder-og-mobilapplikationer [https://perma.cc/K8BM-4QN8]; see
also W3C, Web Accessibility Laws & Policies (updated Dec. 2023),
https://www.w3.org/WAI/policies/ [https://perma.cc/6SU3-3VR3].
\148\ Web Accessibility, European Comm'n (updated 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 Telecomm.
Standards Inst., 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].
---------------------------------------------------------------------------
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. The Department understands
that dozens of States either use or strive to use WCAG 2.0 or greater--
either on its own or by way of implementing the section 508 technical
standards--for at least some of their web content. It appears that at
least ten States--Alaska, Delaware, Georgia, Louisiana, Massachusetts,
Oregon, Pennsylvania, South Dakota, Utah, and Washington--already
either use WCAG 2.1 or strive to use WCAG 2.1 for at least some of
their web content. Given that WCAG 2.1 is a more recent standard than
WCAG 2.0, adds some important criteria for accessibility, and has been
in existence for long enough for web developers and recipients to get
acquainted with it, the Department views it as more appropriate for
adoption in this final rule than WCAG 2.0. In addition, even to the
extent recipients are not already acquainted with WCAG 2.1, those
recipients will have two or three years to come into compliance with a
final rule, which should also provide sufficient time to become
familiar with and implement WCAG 2.1. The Department also declines to
adopt the Access Board's section 508 standards, which are harmonized
with WCAG 2.0, for the same reasons it declines to adopt WCAG 2.0.
The Department has coordinated with DOJ and their rulemaking
revising the regulation implementing title II of the ADA to establish
specific requirements, including the adoption of specific technical
standards, for making accessible the services, programs, and activities
offered by State and local government entities to the public through
the web and mobile apps, to eliminate or minimize instances where
recipients that are also public entities under title II will be held to
different standards. The goal of the Department is to issue clear and
comprehensive rulemaking that requires accessibility for people with
disabilities without causing unnecessary confusion among recipients.
The Department declines to adopt additional technical standards
related to documents-. As discussed, the WCAG standards were designed
to be ``technology neutral'' \149\ and are designed to be broadly
applicable to current and future web technologies. The Department is
concerned that adopting multiple technical standards related to
different types of web content and content in mobile apps could lead to
confusion. However, the Department notes that this rule allows for
equivalent facilitation in Sec. 84.87, meaning that recipients could
still choose to comply with additional standards or guidance related to
documents to the extent that the standard or technique used provides
substantially equivalent or greater accessibility and usability.
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\149\ W3C, Introduction to Understanding WCAG (June 20, 2023),
https://www.w3.org/WAI/WCAG21/Understanding/intro [https://perma.cc/XB3Y-QKVU].
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Finally, the Department does not intend to simply recommend that
recipients make their web content and mobile apps accessible without
requiring specific standards and methods of enforcement. As discussed
in the NPRM, 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, the internet Society publishes computer security
policies and procedures for websites, and the World
[[Page 40132]]
Wide Web Consortium (``W3C'') 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
created the 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 to take regulatory action to ensure web content and
mobile app accessibility.\150\ 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.\151\
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\150\ 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 Justice. (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 Justice. (Mar. 23,
2022), https://www.c-c-d.org/fichiers/CCD-Web-Accessibility-Letter-to-DOJ-03232022.pdf [https://perma.cc/Q7YB-UNKV].
\151\ 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).
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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 fully compliant with Web Content
Accessibility Guidelines (WCAG) 2.1.\152\ While WCAG 2.1 has been
available to the general public, including web professionals, for over
five years, and many of the success criteria it incorporates were
available a decade prior in WCAG 2.0, it is likely that some recipients
have not fully conformed with WCAG 2.1 AA in the absence of rulemaking
requiring conformance. 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.\153\
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\152\ 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.
\153\ 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.\154\ 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.\155\
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\154\ 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.'').
\155\ See, e.g., Settlement Agreement Between the United States
of America and the Champaign-Urbana Mass Transit District (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. 13, 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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The Department believes that adopting technical standards for web
content and mobile app accessibility provides 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 content and mobile app accessibility also provides
individuals with disabilities with consistent and predictable access to
the websites and mobile apps of recipients.
Comment: Many commenters expressed their beliefs that the proposed
time periods for compliance, two years for larger recipients and three
years for smaller recipients, were too far in the future and should be
shortened. These commenters expressed concern that the time recipients
would spend making their web and mobile content accessible would be
time that people with disabilities will not have access to their
programs and activities, including necessary health care.
Alternatively, some commenters stated they believed that the time
periods for compliance should be extended to allow recipients, some of
whom are small and have limited resources, additional time to come into
compliance and ensure their web content and mobile apps comply with
WCAG 2.1. These commenters stated that some small health care providers
may decide to not accept funding from the Department, or go out of
business altogether, if they are
[[Page 40133]]
required to come into compliance within three years. Some commenters
believe that the proposed time period for compliance is adequate and
strikes the appropriate balance between providing recipients adequate
time and ensuring people with disabilities do not have to wait too long
for services.
Some commenters expressed confusion as to whether the proposed rule
as drafted only meant that recipients had a one-time obligation to
update their web content and mobile apps for WCAG 2.1 AA conformance at
two years or three years, depending on their size.
Response: Much like determining the appropriate compliance
standard, the Department recognizes that commenters have a spectrum of
opinions on whether the proposed dates for compliance are too soon or
too far in the future. The Department worked closely with its Federal
partners to determine appropriate compliance timeframes. After
carefully weighing the arguments that the compliance dates should be
kept the same, shortened, or lengthened, the Department has decided
that the compliance dates in the final rule--two years for large
recipients and three years for small recipients--strike the appropriate
balance between the various interests at stake.
Shortening the compliance dates would likely result in increased
costs and practical difficulties for recipients, especially small
recipients. Lengthening the compliance dates would prolong the
exclusion of many people with disabilities from recipients' web content
and mobile apps. Additionally, any change in compliance dates runs the
risk of introducing inconsistency with other rulemakings \156\ where
recipients that are also covered by those rulemakings would be subject
to different compliance dates. The Department believes that the balance
struck in the compliance timeframe proposed in the NPRM was
appropriate, and that there are no overriding reasons to shorten or
lengthen these dates given the important and competing considerations
involved by stakeholders.
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\156\ See, e.g., 88 FR 51948 (Aug. 4, 2023).
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Regarding whether the proposed rule only required recipients to
make their web content and mobile apps accessible once, the Department
wishes to clarify that under this rule, recipients have an ongoing
obligation to ensure that their web content and mobile apps comply with
this rule's requirements, which would include content that is newly
added or created after the compliance date. The compliance date is the
first time that recipients need to be in compliance with the rule's
requirements; it is not the last. Accordingly, after the compliance
date, recipients will continue to need to ensure that all web content
and mobile apps they provide or make available comply with the
technical standard, except to the extent another provision of this rule
permits otherwise. To make this point more clearly, the Department
revised the language of Sec. 84.84(b)(1) and (2), respectively, to
state that a recipient needs to comply with this rule ``[b]eginning May
11, 2026'' and ``[b]eginning May 10, 2027,'' depending on the size of
the recipient.
Comment: The Department received conflicting comments concerning
the costs and challenges that small recipients will face in order to
comply with the proposed rule. Some commenters believe that recipients
with fewer than fifteen employees have budgets that will be
significantly constrained by requirements to make the web content and
mobile apps they use compliant with WCAG 2.1 in any amount of time.
Some commenters also believe that because of their size, small
recipients are less sophisticated and less aware of their obligations
under Federal civil rights laws, and therefore should not be held to
standards imposed on larger recipients. Alternatively, other commenters
state that small recipients do not face insurmountable costs because
advances in technology and the services offered to make web content
accessible have made compliance much more attainable for even the
smallest recipient.
Response: The Department believes that the final rule strikes the
appropriate balance by requiring small recipients to comply with the
same technical standard as larger recipients while giving small
recipients additional time to do so. The Department believes this
longer compliance time frame is prudent in recognition of the
additional challenges that small recipients may face in complying, such
as limited budgets, lack of technical expertise, and lack of personnel.
The Department believes that providing an extra year for small
recipients to conform to this section will give those recipients
sufficient time to properly allocate their personnel and financial
resources to make their web content and mobile apps comply with WCAG
2.1 Level AA, without providing so much additional time that people
with disabilities have a reduced level of access to their resources for
an extended period.
The Department appreciates the concerns of commenters and urges
recipients to review the Regulatory Impact Analysis for the
Department's full discussion of the costs and benefits of the proposed
rulemaking. Small recipients in particular are much less likely to
create their own web content and mobile apps and are more likely to
contract with outside parties. Small recipients are also more likely to
have smaller amounts of web content and mobile apps that would have to
be compliant. Recipients will have the choice to remediate existing web
content and mobile apps, or to create new accessible web content and
mobile apps and may also decide whether to make changes themselves or
contract with a third-party to make changes. Regarding sophistication
and understanding of accessibility requirements, the Department is
committed to issuing guidance and technical assistance for recipients
on how to comply with accessibility requirements, in addition to
existing guidance on WCAG 2.1. Finally, a recipient may be able to show
that full compliance with subpart I would result in a fundamental
alteration or undue burdens as described in Sec. 84.88.
Comment: Many commenters believe that all recipients, regardless of
size, should be held to the same accessibility standard. Specifically,
they believe that any deviation in accessibility standards between
small and large recipients would lead to unacceptable differences in
levels of care to the detriment of patients with disabilities,
especially those in rural areas. Those commenters also stated that
small recipients should either have to come into compliance within the
proposed three years or at an earlier date. Some commenters supported
more lenient standards for small recipients because they believed
achieving full accessibility under WCAG 2.1 would be too difficult for
the smallest recipients. One commenter stated that the accessibility
standard should be the same regardless of recipient size, but small
providers should have more than three years to come into compliance.
One commenter recommended a principles-based approach where small
recipients would be required to take steps to make their web content
and mobile apps accessible, but there would be no standard or method
for testing their accessibility. One commenter believed there should be
a permanent exemption for small recipients and that they should not be
held to any standards for web content and mobile app accessibility.
Finally, some commenters requested additional guidance for small
recipients so that they could comply with the Department's proposed
standards.
[[Page 40134]]
Response: The Department appreciates the range of responses on
standards for small recipients. The Department agrees that requiring
more lenient standards for small recipients would lead to differences
in the accessibility and effectiveness of health and human service
programs and activities. Given the importance of small recipients in
the delivery of health care, such gaps are incompatible with the
Department's statutory mandate; a wholesale exception would therefore
be inappropriate. Such an exception would mean that an individual with
a disability who lives in a small, rural area, might not have the same
level of access to a recipient's web-based programs and activities as
an individual with a disability in a larger, urban area. This would
significantly undermine consistency and predictability in web
accessibility. It would also be particularly problematic given the
interconnected nature of many different websites. Furthermore, an
exception for small recipients would reduce the benefits of the rule
for those entities.
Requiring small recipients to comply with the same technical
standards as all other recipients ensures consistent levels of
accessibility for recipients of all sizes in the long term, which will
promote predictability and reduce confusion about which standard
applies. It will allow for individuals with disabilities to know what
they can expect when navigating a recipient's web content; for example,
it will be helpful for individuals with disabilities to know that they
can expect to be able to navigate any recipient's web content
independently using their assistive technology. It also ensures that
individuals with disabilities who reside in rural areas that are mainly
serviced by smaller recipients have comparable access to their
counterparts in urban areas that are serviced by a range of smaller and
larger recipients, which is critical given the transportation and other
barriers that people in rural areas may face.\157\
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\157\ See, e.g., NORC Walsh Ctr. for Rural Health Analysis &
Rural Health Info. Hub, Access to Care for Rural People with
Disabilities Toolkit, (Dec. 2016), https://www.ruralhealthinfo.org/toolkits/disabilities.pdf [https://perma.cc/YX4E-QWEE] (noting
geographic, transportation, and service barriers to care in rural
areas); U.S. Dep't of Health & Hum. Servs., Health Rsch. & Servs.
Admin., Strengthening the Rural Health Workforce to Improve Health
Outcomes in Rural Communities, 13-14 (Apr. 2022), https://www.hrsa.gov/sites/default/files/hrsa/advisory-committees/graduate-medical-edu/reports/cogme-april-2022-report.pdf (stating that the
healthcare workforce in rural communities is overall short staffed
with fewer hospitals and critical care physicians than urban areas);
About Rural Healthcare, NHRA, https://www.ruralhealth.us/about-nrha/about-rural-health-care (last visited Mar. 19, 2024) (stating that
family physicians comprise only 15% of U.S. outpatient physician
workforce but provide 42% of care in rural areas).
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The Department notes that under appropriate circumstances, small
recipients may also rely on the exceptions, flexibilities, and other
mechanisms described in Sec. Sec. 84.85, 84.86, 84.87, 84.88, and
84.89 below, which the Department believes should help make compliance
feasible for those recipients. Recipients are not required to take
action that would constitute a fundamental alteration in the nature of
a program or activity, or impose an undue financial or administrative
burden.
Finally, the Department remains committed to making guidance
documents and technical assistance available to the general public so
that recipients are aware of their obligations and how to comply with
them.
New Social Media Exception
Comment: Many of the comments on recipient use of social media and
how it should be addressed in this rulemaking stated that recipients
use social media for a wide variety of purposes, including purposes
central to the programs and activities they provide. Recipients may
post important announcements, scheduling information, informational
videos, or other general information that is of high importance to the
public. Many comments proposed specific technical requirements to
ensure that social media posts from recipients are accessible,
including plain language, alternative text for images, and audio
descriptions and captions for videos. Some commenters stated that
social media posts made before the implementation date for this
rulemaking should not be required to be accessible unless they contain
important information related to recipient programs or activities or
the content of the posts is changed. Some commenters stated that older
social media posts should be made accessible upon request or if a
recipient posts significant important content on a certain social media
platform, like YouTube. Some commenters stated that no preexisting
social media posts should be required to be accessible due to the
burden on recipients and the forward-looking nature of the proposed
rule. Many commenters expressed concern that social media posts from
recipients should not be deemed to violate this proposed rule if the
social media platform itself is responsible for the violation.
Response: The Department is including an exception for preexisting
social media posts in the final rule because making preexisting social
media posts accessible may be impossible or result in a significant
burden. The benefits of making all preexisting social media posts
accessible will likely be limited as these posts are generally intended
to provide then-current updates on platforms that are frequently
refreshed with new information. The Department believes recipients'
limited resources are better spent ensuring that current web content
and content in mobile apps are accessible, rather than reviewing all
preexisting social media posts for compliance or possibly deleting
recipients' previous posts if remediation is impossible. As other
commenters recommended, the Department believes this final rule should
be more forward looking when determining which social media posts
should be accessible.
The Department emphasizes that even if preexisting social media
posts do not have to conform to the technical standard, recipients
still need to ensure that their programs and activities offered using
web content and mobile apps are accessible to people with disabilities
on a case-by-case basis in accordance with their other obligations
under section 504.
Based on these comments, the Department will include a new
exception at Sec. 84.85(e) that will state the requirements of Sec.
84.84 do not apply to a recipient's social media posts that were posted
before the date the recipient is required to comply with this rule.
The Department's final rule requires that web content and mobile
apps that recipients provide or make available, directly or through
contractual, licensing, or other arrangements, be made accessible
within the meaning of Sec. 84.84. This requirement applies regardless
of whether that content is located on the recipient's own website or
mobile app or elsewhere on the web or mobile apps. It therefore covers
web content or content in a mobile app that a recipient makes available
via a social media platform.
Many social media platforms that are widely used by members of the
public are available to members of the public separate and apart from
any arrangements with recipients to provide a program or activity. As a
result, this rule does not require recipients to ensure that such
platforms themselves conform to WCAG 2.1 Level AA. However, because the
posts that recipients disseminate through those platforms are provided
or made
[[Page 40135]]
available by the recipients, they must conform to WCAG 2.1 Level AA.
The Department understands that social media platforms often make
available certain accessibility features like the ability to add
captions or alt text. It is the recipient's responsibility to use these
features when it makes web content available on social media platforms.
For example, if a recipient posts an image to a social media platform
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.
Comment: Many of the comments on recipients' use of mobile
applications and how it should be addressed in this rulemaking stated
that recipients use mobile apps for a wide range of services that are
central to their programs and activities. For example, some recipients
use mobile apps as the main method for making appointments, paying
bills, and even communicating with the recipient. None of the
commenters argued against addressing mobile applications in this
rulemaking. Some commenters stated that WCAG 2.1 applies to mobile apps
in addition to web content and the Department is correct in proposing
to use the same standard for both. Some commenters recommended a
different standard for mobile apps, like section 508 of the
Rehabilitation Act, WCAG 2.2, or WCAG 2.0.
Response: The Department agrees that the same technical standard
for accessibility should apply to both web content and mobile apps. The
Department believes that applying the same technical standard to both
web content and mobile apps will reduce confusion by ensuring
consistent requirements and user experiences across web and mobile
platforms.
One of the reasons the Department proposed WCAG 2.1 AA as the
standard for web content and mobile apps is that the WCAG standards
were designed to be ``technology neutral.'' \158\ This means that they
are designed to be broadly applicable to current and future web
technologies,\159\ which will help ensure accessibility for mobile
apps. Although the Section 508 Standards include some additional
requirements like interoperability that are not required by WCAG,\160\
WCAG 2.1 Level AA includes specific success criteria related to mobile
app accessibility. These success criteria address challenges such as
touch target size, orientation, and motion actuation, among
others.\161\ Therefore, the Department believes that WCAG 2.1 Level AA
is a robust framework for mobile app accessibility.
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\158\ W3C, Introduction to Understanding WCAG (June 20, 2023),
https://www.w3.org/WAI/WCAG21/Understanding/intro [https://perma.cc/XB3Y-QKVU].
\159\ See W3C, Understanding Techniques for WCAG Success
Criteria (June 20, 2023), https://www.w3.org/WAI/WCAG21/Understanding/understanding-techniques [https://perma.cc/AMT4-XAAL].
\160\ See 36 CFR 1194.1; 36 CFR part 1194, appendix C, ch. 5.
\161\ W3C, Web Content Accessibility Guidelines (WCAG) 2.1 (June
5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and
https://perma.cc/UB8A-GG2F (success criteria 2.5.5, 1.3.4, & 2.5.4).
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Comment: Most of the comments on how the proposed compliance dates
will affect individuals with disabilities noted that the longer that
individuals with disabilities are forced to wait for accessible web
content and mobile apps, the worse health outcomes they will face. Some
commenters noted that retrofitting existing web content is always more
difficult than creating accessible content, so recipients should begin
making new web content accessible as soon as possible.
Response: The Department agrees that creating accessible content
from the start, rather than trying to remediate after the fact, is
generally an easier undertaking for recipients and results in lower
costs and burdens over time. While recipients must begin complying with
the rule on the applicable compliance date, the Department expects that
recipients will need to prepare for compliance during the two or three
years before the compliance date. In addition, recipients still have an
obligation to meet all of section 504's existing requirements--both
before and after the date they must initially come into compliance with
this rule.
Comment: There were limited comments concerning how to define small
recipients under the proposed rulemaking. Some commenters agreed that
fifteen was the appropriate employee cut off for small recipients. Some
commenters stated that there should be no distinction between small and
large recipients because patients require the same level of care
regardless of the size of a provider. Some commenters requested that
instead of using the section 504 definition of small recipient that
includes recipients with fewer than fifteen employees, the Department
use the definition from the 2015 Medicare Access and CHIP
Reauthorization Act which includes practices with fifteen or fewer
professionals, effectively making more recipients small recipients, as
the commenters characterized the requested change.
Response: Since its publication over four decades ago, the
Department's implementing regulation for section 504 of the
Rehabilitation Act has recognized that there are practical differences
between recipients with fewer than fifteen employees and recipients
with fifteen or more employees. As a result, the Department limited the
obligations of recipients with fewer than fifteen employees in certain
areas. Maintaining this definition will significantly reduce the
administrative complexity of enforcing this regulation and will improve
predictability for recipients. The Department will not alter the
definition of small recipient under a civil rights regulation to more
closely align with a public law focused on physician payments.
Comment: Commenters agreed with the Department's proposed method
for compliance for recipients that are also public entities covered by
title II of the ADA.
Response: The Department agrees that its proposed method is
appropriate. In instances where a recipient is also a public entity
covered by title II of the ADA, the recipient will be required to
comply with both this rulemaking and all title II regulations,
including DOJ's rule establishing specific requirements, including the
adoption of specific technical standards, for making accessible the
services, programs, or activities offered by State and local government
entities to the public through the web and mobile apps, and the
associated compliance dates specified in that rulemaking.
Comment: Most commenters agreed that there should not be a separate
standard or greater time period for captioning live audio. Many
commenters agree that two or three years is adequate time to ensure
captioning for live audio, especially given the current advances in
automated captioning technology. One commenter asked whether captioning
requirements would require captions in multiple different languages
beyond English.
Response: As proposed in the NPRM, the final rule applies the same
compliance date to all of the WCAG 2.1 Level AA success criteria,
including live-audio captioning requirements. As stated in Sec.
84.84(b), this provides three years after publication of the final rule
for small recipients to comply, and two years for large recipients. The
final rule takes this approach for several reasons. First, the
Department understands that live-audio captioning technology has
developed in recent years and continues to develop. Additionally, the
COVID-19 pandemic moved a significant number of formerly in-person
meetings,
[[Page 40136]]
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. Further, the Department believes
that requiring conformance with all success criteria by the same date
(according to recipient size) will address the need for both clarity
for recipients and predictability for individuals with disabilities.
This rulemaking is separate from other civil rights laws and
regulations that prohibit discrimination based on race, color, or
national origin and require meaningful access for individuals with
limited English proficiency. Additional information on section 1557,
which requires that certain health programs and activities take
reasonable steps to provide meaningful access to individuals with
limited English proficiency, can be found on the OCR website.
Comment: Some commenters noted that recipients post a variety of
live audio content, including news blasts.
Response: The Department appreciates the responses.
Summary of Regulatory Changes
While the Department believes that the comments concerning Sec.
84.84 were overall positive and recognized the intent of the proposed
rule, there is also concern that more clarity can be provided to define
the scope of coverage. Accordingly, the Department will modify the text
of Sec. 84.84(a)(1) and (2) and (b)(1) and (2) to clarify that this
rulemaking applies to web content and mobile apps that a recipient
provides, either ``directly or through contractual, licensing, or other
arrangements.'' This approach is consistent with the NPRM, which
clarified that 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. The
Department also received comments in other sections emphasizing the
importance of such a distinction and believes it is a fundamental part
of this rule that should be emphasized.
The Department will also modify the regulatory text of Sec. 84.84
to remove the words ``members of the public,'' which is more similar to
the language in the application section of title II of the ADA but is
not intended to change or limit the coverage of the final section 504
rule.
The Department will also edit the language at Sec. 84.84(b)(1) and
(2) to clarify that recipients have an ongoing obligation, not a one-
time obligation, to make their web content and mobile apps accessible
beginning two or three years after the publication of this final rule.
Exceptions (Sec. 84.85)
Proposed Sec. 84.85 contained a number of exceptions to the
requirements of Sec. 84.84 including archived web content (Sec.
84.85(a)), preexisting conventional electronic documents (Sec.
84.85(b)), web content posted by a third party (Sec. 84.85(c)), linked
third-party web content (Sec. 84.85(d)), password-protected course
content for elementary, secondary, and postsecondary institutions
(Sec. 84.85(e), (f)), and individualized password-protected documents
(Sec. 84.85(g)).
The Department emphasizes that, even if certain content does not
have to conform to the technical standard of this rulemaking,
recipients still need to ensure that their programs and activities
offered using web content and mobile apps are accessible to people with
disabilities on a case-by-case basis in accordance with other
obligations under this rulemaking. These obligations include making
reasonable modifications to avoid discrimination on the basis of
disability, ensuring that communications with people with disabilities
are as effective as communications with people without disabilities,
and providing people with disabilities an equal opportunity to
participate in or benefit from the recipient's programs or
activities.\162\
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\162\ See 45 CFR 84.68(b)(1)(ii), (b)(7), 84.77.
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The Department sought comment on the following questions pertaining
to archived web content (Sec. 85.85(a)):
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?
The comments and our responses on Sec. 84.85(a) are set forth
below.
Comment: One commenter stated that its content is stored in
accordance with State administrative rules and made available to the
public based on open records laws. Several commenters sought clarity on
the definition of ``archived web content.'' Some commenters provided
their understanding of what constitutes archived web content, and
offered suggestions for updating the Department's proposed definition.
One comment stated that archiving content includes taking stock of all
the material on a website, then the website may be overhauled in such a
way that archived relationships or content types are no longer visible.
Some commenters requested an edit to the proposed definition of
``archived content'' to remove the term ``exclusively'' as it limits
archived web content to content maintained for reference, research or
recordkeeping and the commenters did not want to limit the exception to
specific types of content.
Response: The Department appreciates the comments about the
archived web content definition and exception. Specifically, some
commenters offered recommendations to broaden the definition of
archived web content, which would increase the total web content
covered by the proposed exception, while other comments recommended
limiting the definition of archived web content, which would decrease
the total web content covered by the proposed exception. In the
proposed rule, ``archived web content'' was defined as ``web content
that (1) is retained 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.'' \163\
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\163\ 88 FR 63392, 63509 (Sept. 14, 2023).
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The Department made several revisions to the definition of archived
web content from the NPRM. To clarify the scope of content covered by
the definition and associated exception, the Department added a new
first part to the definition. That new part specifies that archived web
content is limited to three types of historic content: web content that
was created before the date the recipient is required to comply with
subpart I; web content that reproduces paper documents created before
the date the recipient is required to comply with subpart I; and web
content that reproduces the contents of other physical media created
before the date the recipient is required to comply with subpart I.
Web content that was created before the date a recipient is
required to comply with subpart I satisfies the first part of the
definition. In determining the date web content was created, the
Department does not intend to prohibit recipients from making minor
adjustments to web content that was initially created before the
relevant
[[Page 40137]]
compliance dates specified in Sec. 84.84(b), such as by redacting
personally identifying information from web content as necessary before
it is posted to an archive, even if the adjustments are made after the
compliance date. In contrast, if a recipient makes substantial changes
to web content after the date the recipient is required to comply with
the rule, such as by adding, updating, or rearranging content before it
is posted to an archive, the content would likely no longer meet the
first part of the definition. If the recipient later alters or updates
the content after it is posted in an archive, the content would not
meet the third part of the definition of archived web content and it
would generally need to conform to WCAG 2.1 Level AA.
Web content that reproduces paper documents or that reproduces the
contents of other physical media would also satisfy the first part of
the definition if the paper documents or the contents of the other
physical media were created before the date the recipient is required
to comply with this rule. Paper documents include various records that
may have been printed, typed, handwritten, drawn, painted, or otherwise
marked on paper. Videotapes, audiotapes, film negatives, CD-ROMs, and
DVDs are examples of physical media. The Department anticipates that
recipients may identify or discover historic paper documents or
historic content contained on physical media that they wish to post in
an online archive following the time they are required to comply with
this rule. For example, a research hospital might move to a new
building after the date it is required to comply with this rule and
discover a box in storage that contains hundreds of paper files and
photo negatives from 1975 related to a research study the hospital
conducted at that time. If the hospital reproduced the documents and
photos from the film negatives as web content, such as by scanning the
documents and film negatives and saving the scans as PDF documents that
are made available online, the resulting PDF documents would meet the
first part of the definition of archived web content because the
underlying paper documents and photos were created in 1975. The
Department reiterates that it does not intend to prohibit recipients
from making minor adjustments to web content before posting it to an
archive, such as by redacting personally identifying information from
paper documents. Therefore, the hospital could likely redact personally
identifying information about participants in the research study from
the scanned PDFs as necessary before posting them to its online
archive. But, if the hospital were to make substantial edits to PDFs,
such as by adding, updating, or rearranging content before posting the
PDFs to its archive, the PDFs would likely not meet the first part of
the definition of archived web content because, depending on the
circumstances, they may no longer be a reproduction of the historic
content. In addition, if the hospital later altered or updated the PDFs
after they were posted in an archive, the content would not meet the
third part of the definition of archived web content and it would
generally need to conform to WCAG 2.1 Level AA.
The Department believes the first part of the definition sets an
appropriate time-based limitation on the scope of content covered by
the definition and exception that is consistent with the Department's
stated intent in the NPRM. In the NPRM, the Department explained that
the definition of archived web content and the associated exception
were intended to cover historic content that is outdated or
superfluous.\164\ The definition in the final rule, which is based on
whether the relevant content was created before the date a recipient is
required to comply with subpart I, is now more aligned with, and better
situated to implement, the Department's intent to cover historic
content. The Department believes it is appropriate to include a time-
based limitation in the definition, rather than add new criteria
stating that content must be historic, outdated, or superfluous,
because it is more straight forward to differentiate content based on
the date the content was created. Therefore, there will be greater
predictability for individuals with disabilities and recipients as to
which content is covered by the exception.
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\164\ 88 FR 63392, 63464 (Sept. 14, 2023).
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The Department declines to establish time-based limitations for
when content may be posted to an archive or to otherwise set an
expiration date for the exception. As discussed below, the Department
recognizes that many recipients will need to carefully consider the
design and structure of their web content before dedicating a certain
area or areas for archived content, and that, thereafter, it will take
time for recipients to identify all content that meets the definition
of archived web content and post it in the newly created archived area
or areas. The archived web content exception thus provides recipients
flexibility as to when they will archive web content so long as the web
content was created before the date the recipient was required to
comply with subpart I or the web content reproduces such paper
documents or the contents of other physical media created before the
date the recipient was required to comply with subpart I. In addition,
the Department does not believe it is necessary to establish a waiting
period before newly created web content can be posted in an archive.
New content created after the date a recipient is required to comply
with this rule will generally not meet the first part of the definition
of ``archived web content.'' In the limited circumstances in which
newly created web content could meet the first part of the definition
because it reproduces paper documents or the contents of other physical
media created before the date the recipient is required to comply with
this rule, the Department believes the scope of content covered by the
exception is sufficiently limited by the second part of the definition:
whether the content is retained exclusively for reference, research, or
recordkeeping.
After considering all the comments, the Department declines to
change what is now the second part of the definition of archived web
content. Given the wide variety of web content that recipients provide
or make available, the Department does not believe it is advisable to
try to use additional, more specific language in the definition about
what types of content are covered. Whether web content is retained
exclusively for reference, research, or recordkeeping will depend on
the facts of the particular situation. The Department notes that if a
recipient posts web content that identifies the current policies or
procedures of the recipient, or posts web content containing or
interpreting applicable laws or regulations related to the recipient,
that web content is unlikely to be covered by the exception. This is
because the content is notifying members of the public about their
ongoing rights and responsibilities. It therefore is not, as the
definition requires, being used exclusively for reference, research, or
recordkeeping.
Also, the Department's revised definition of archived web content,
and specifically the new first part of the definition, make clear that
the definition only pertains to certain content created before the date
the recipient is required to comply with this rule. Therefore, new
content such as agendas, meeting minutes, and other documents related
to meetings that take place after the recipient is required to comply
with this
[[Page 40138]]
rule would likely not meet all parts of the definition of archived web
content.
In addition to adding a new first part to the definition of
archived web content, the Department made one further change to the
definition from the NPRM. In the NPRM, what is now the second part of
the definition pertained to web content that is ``maintained''
exclusively for reference, research, or recordkeeping. In the final
rule, the word ``maintained'' is replaced with ``retained.'' The
revised language is not intended to change or limit the coverage of the
definition. Rather, the Department recognizes that the word
``maintain'' can have multiple meanings relevant to this rule. In some
circumstances, ``maintain'' may mean ``to continue in possession'' of
property, whereas in other circumstances it might mean ``to engage in
general repair and upkeep'' of property.\165\
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\165\ Maintain, Black's Law Dictionary (11th ed. 2019).
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Additionally, the Department will retain the word ``exclusively''
in the definition of archived web content. The Department is concerned
that removing the word ``exclusively'' would result in less
predictability for both recipients and individuals with disabilities
about the scope of content covered by the definition. In addition, if
the Department were to remove the word ``exclusively,'' the exception
for archived web content might cover important older web content that
is still used for reasons other than reference, research, or
recordkeeping. The purpose of the exception for archived web content is
to help recipients focus their resources on making accessible the most
important materials that people use most widely and consistently,
rather than historic or outdated web content that is only used for
reference, research, or recordkeeping.
Comment: Many commenters opposed the proposed archived web content
exception because they believe it would result in people with
disabilities being denied access in perpetuity to historical
information. Several commenters noted that access to archived public
documents is key to the public's right to know, petition, and engage in
the American democratic process. These commenters said that these legal
rights, such as access to public meeting information, should not be
abridged on the basis of disability or any other exclusionary reason.
Other commenters stated that if recipients do not respond to requests
for accessible electronic documents in a timely manner, important
information falls under this exception, and any essential documents
should not be included in this exception. In addition, commenters said
that individuals with disabilities may not know what content they are
looking for to make such request for accessible versions. Several
commenters stated there will be a negative impact on students,
researchers, and other professionals with disabilities who frequently
require access to archived content for their studies and livelihoods.
One commenter supported the exception, saying that recipients should be
encouraged to accommodate people with disabilities so they can access
content when requested.
Response: The Department understands the concerns raised by
commenters about the burdens that people with disabilities may face
because archived web content is not required to conform to WCAG 2.1
Level AA. The Department emphasizes that even if certain content does
not have to conform to the technical standard, recipients still need to
ensure that their programs and activities offered using web content are
accessible to people with disabilities on a case-by-case basis in
accordance with their other obligations under section 504. These
obligations include making reasonable modifications to avoid
discrimination on the basis of disability, ensuring that communications
with people with disabilities are as effective as communications with
people without disabilities, and providing people with disabilities an
equal opportunity to participate in or benefit from the recipient's
programs or activities.\166\
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\166\ See 45 CFR 84.68(b)(1)(ii), (b)(7), 84.77.
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The Department emphasizes that web content that is not archived,
but instead notifies users about the existence of archived web content
and provides users access to archived web content, generally must still
conform to WCAG 2.1 Level AA. Therefore, the Department anticipates
that members of the public will have information about what content is
contained in an archive. For example, a recipient's archive may include
a list of links to download archived documents. Under WCAG 2.1 Success
Criterion 2.4.4, a recipient would generally have to provide sufficient
information in the text of the link alone, or in the text of the link
together with the link's programmatically determined link context, so
users could understand the purpose of each link and determine whether
they want to access a given document in the archive.\167\
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\167\ See W3C, Web Content Accessibility Guidelines 2.1, Link
Purpose (In Context) (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F.
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The Department continues to believe that the exception
appropriately encourages recipients to utilize their resources to make
accessible the critical up-to-date materials that are most consistently
used to access recipients' programs or activities. The Department
believes the exception provides a measure of clarity and certainty for
recipients about what is required of archived web content. Therefore,
resources that might otherwise be spent making accessible large
quantities of historic or otherwise outdated information available on
some recipients' websites are freed up to focus on important current
and future web content that is widely and frequently used by members of
the public. However, the Department emphasizes that the exception is
not without bounds. As discussed above, archived web content must meet
all four parts of the archived web content definition in order to
qualify for the exception. Content must meet the time-based criteria
specified in the first part of the definition. The Department believes
the addition of the first part of the definition will lead to greater
predictability about the application of the exception for individuals
with disabilities and recipients. In addition, web content that is used
for something other than reference, research, or recordkeeping is not
covered by the exception.
Comment: Many commenters pointed out that recipients already have
the option to claim fundamental alteration or undue burdens limitations
for the subpart. If a recipient cannot argue that making archived
documents accessible would result in a fundamental alteration or undue
burden, then they should provide access to archived documents via a
schedule that prioritizes conversion based on the needs of their
constituents. Some commenters suggested that priority should be based
on which records are accessed more often, or those that are more
chronologically recent. Some commenters mentioned that the burden of
proving fundamental alteration or undue burden is on the recipient and
the Department should provide clear guidelines on how to satisfy such
defenses. One commenter asked about the consequences for noncompliance
and encouraged the Department to give recipients ample time and
opportunity to correct issues.
Several commenters pointed out that the status quo is that
accessible documents are not provided in a timely
[[Page 40139]]
manner upon request, and requested that if the Department does end up
allowing the exception for archived documents, then the Department
should define ``timely manner'' to no longer than a few business days.
Commenters said the Department should also require that recipients post
processes and timelines for accessing inaccessible archived documents.
Some commenters requested that any documents archived after the
effective date of this rule be kept in an accessible format.
One commenter said the Department should distinguish between
archives that are themselves programs of a recipient (e.g., special
digital collections and recordkeeping) versus any information that was
originally web content and that may be archived solely for reference
(e.g., old calendar events or time-oriented resources kept on an
archives section of the website). This commenter stated that when an
archive is itself a program, it should be required to be accessible.
Response: The Department's aim in setting forth exceptions was to
make sure that individuals with disabilities have ready access to
recipients' web content and mobile apps, especially those that are
current, commonly used, or otherwise widely needed, while also ensuring
that practical compliance with this rule is feasible and sustainable
for recipients. The exceptions help to ensure that compliance with this
final rule is feasible by enabling recipients to focus their resources
on making frequently used or high impact content WCAG 2.1 Level AA
compliant first. The Department was mindful of the pragmatic concern
that should the final rule require actions that are likely to result in
fundamental alterations or undue burdens for large numbers of
recipients or large swaths of their content, the rule could in practice
lead to fewer improvements for accessibility across the board as
recipients encountered these limitations. The Department believes that
such a rule could result in recipients prioritizing accessibility of
content that is ``easy'' to make accessible, rather than content that
is essential, despite the spirit and letter of the rule. The Department
believes that clarifying that recipients do not need to focus resources
on certain content helps ensure that recipients can focus their
resources on the large volume of content not covered by exceptions, as
that content is likely more frequently used or up to date.
As discussed above, the Department has decided to keep the archived
web content exception in the final rule. After reviewing the range of
different views expressed by commenters, the Department continues to
believe that the exception appropriately encourages recipients to
utilize their resources to make accessible the critical up-to-date
materials that are most consistently used to access recipients'
programs or activities. The Department believes the exception provides
a measure of clarity and certainty for recipients about what is
required of archived web content. Therefore, resources that might
otherwise be spent making accessible large quantities of historic or
otherwise outdated information available on some recipients' websites
are freed up to focus on important current and future web content that
is widely and frequently used by members of the public.
The Department also declines to treat differently recipients whose
primary function is to provide or make available what a commenter
perceived as archived web content. The Department reiterates that
whether archived web content is retained exclusively for reference,
research, or recordkeeping depends on the particular facts and
circumstances. The Department believes the exception and definition of
archived web content together provide a workable framework for
determining whether all types of recipients properly designate web
content as archived.
The Department declines to require recipients to adopt procedures
and timelines for how individuals with disabilities could request
access to inaccessible archived web content covered by the exception.
The Department reiterates that, even if content is covered by this
exception, recipients still need to ensure that their programs and
activities offered using web content are accessible to people with
disabilities on a case-by-case basis in accordance with their other
obligations under section 504. These obligations include making
reasonable modifications to avoid discrimination on the basis of
disability, ensuring that communications with people with disabilities
are as effective as communications with people without disabilities,
and providing people with disabilities an equal opportunity to
participate in or benefit from the recipient's programs or
activities.\168\
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\168\ See 45 CFR 84.68(b)(1)(ii), (b)(7), 84.77.
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Summary of Regulatory Changes
For the reasons set forth above and considering the comments
received, we are finalizing Sec. 84.85(a) as proposed with no
modifications and editing the definition of ``archived web content'' in
Sec. 84.10 by adding the following at paragraph (1): ``was created
before the date the recipient is required to comply with Sec. 84.84,
reproduces paper documents created before the date the recipient is
required to comply with Sec. 84.84, or reproduces the contents of
other physical media created before the date the recipient is required
to comply with Sec. 84.84.'' The provision designated as paragraph (1)
in the NPRM will be redesignated as paragraph (2) and the word
``maintained'' will be replaced with ``is retained under.'' In
addition, the provisions labelled paragraphs (2) and (3) in the NPRM
will be redesignated as paragraphs (3) and (4), respectively.
The Department sought comment on the following questions pertaining
to preexisting conventional electronic documents (Sec. 84.85(b)):
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?
The comments and our responses on Sec. 84.85(b) are set forth
below.
Comment: Some commenters stated that preexisting conventional
documents can easily be made accessible, such as by using .doc formats
as opposed to .pdf or saving a .pdf in a more accessible manner. Some
commenters wanted to broaden this exception to cover preexisting
multimedia content and documents produced by government entities. Those
commenters reasoned that documents provided by government entities may
have statutory limitations that prevent changes and recipients would
have no control over or ability to change the content of such
documents. Another commenter appreciated the exception because they
believe that without the exception recipients would be forced to delete
a significant amount of helpful content from their websites. This
commenter urged HHS to except content posted on platforms such as
YouTube from coverage.
[[Page 40140]]
Commenters listed types of conventional electronic documents made
available to the public such as PDF, brochures, announcements, and
slides shows on websites, cloud drives, file sharing sites, and cloud
document platforms. Commenters said recipients use social media which
allows the posting of links, which can include links to the recipient's
own website. Conventional electronic documents can be attached to the
social media post themselves in limited circumstances. One commenter
recommended changing the wording of exception to include documents that
have been posted to sites other than the recipient's website (such as
cloud drives and social media).
A State governor said the exception is too broad and proposed
limiting the exception to archived documents that are no longer in
regular and ongoing use to avoid excessive inaccessible legacy content.
Response: The Department does not intend to broaden this proposed
exception at this time, because the exception at Sec. 84.85(a) covers
archived web content, the definition of which is not limited to
documents.\169\ Web content that recipients provide or make available
must conform to WCAG 2.1 Level AA unless covered by an exception. That
includes videos that a recipient creates.
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\169\ See Sec. 84.10.
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The Department appreciates commenters' discussions of the types of
conventional documents that recipients use and how to make them
accessible. Preexisting conventional electronic documents are covered
by this exception unless they are currently used to apply for, gain
access to, or participate in a recipient's programs or activities.
The Department continues to believe that the exception provides an
important measure of clarity and certainty for recipients as they
initially consider how to address all the various conventional
electronic documents provided and made available through their web
content and mobile apps. The exception will allow recipients to
primarily focus their resources on developing new conventional
electronic documents that are accessible as defined under this rule and
remediating preexisting conventional electronic documents that are
currently used to apply for, gain access to, or participate in their
programs or activities. In contrast, recipients will not have to expend
their resources on identifying, cataloguing, and remediating
preexisting conventional electronic documents that are not currently
used to apply for, gain access to, or participate in the recipients'
programs or activities.
The Department modified the language of this exception from the
NPRM in ways that are relevant to the comment about the location of the
conventional electronic documents, including social media sites and
cloud drives. In the NPRM, the Department specified that the exception
applied to conventional electronic documents ``created by or for a
recipient'' that are available ``on a recipient's website or mobile
app.'' The Department believes the language ``created by or for a
recipient'' is no longer necessary in the regulatory text of the
exception itself because the Department updated the language of Sec.
84.84 to clarify the overall scope of content generally covered by the
rule. In particular, and, as explained above, to make clear that
recipients cannot delegate away their accessibility responsibilities,
the text of Sec. 84.84(a)(1) and (2) now states that the rule applies
to all web content and mobile apps that a recipient provides or makes
available either ``directly, or through contractual, licensing, or
other arrangements.'' Section 84.85(b), which is an exception to the
requirements of Sec. 84.84, is therefore limited by the new language
added to the general section.
In addition, the Department removed the phrase ``members of the
public'' from the language of the exception in the proposed rule for
consistency with the edits to Sec. 84.84 of the section 504 regulation
and title II of the ADA, as described above.
Comment: Several commenters pointed out that there may be a need
for documents that fall under this exception because, while they are
not used to apply for, gain access to, or participate in a recipient's
programs or activities, they are important for understanding the
recipient's programs, activities, and services. One commenter noted
that ``apply for, gain access to, or participate in a recipient's
services, programs, or activities'' may not be consistently interpreted
among recipients, and that documents with information about
understanding the recipient's overall programs and activities,
research-related documents, directives on health care payment, coding,
or coverage can govern medical decisions long after they are published.
Commenters noted that disputes related to health care claims can take
years to solve, making existing documents relevant for such claims.
Commenters noted that even if updated, new documents may not replace
older versions in all circumstances, and partial revisions to existing
documents make it necessary for both versions to be accessible for
comparison.
One commenter stated that the Department adequately addressed
concerns about whether supporting information for conventional
documents will be accessible with the statement ``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.''
Response: Whether a conventional electronic document is currently
used to apply for, gain access to, or participate in a recipient's
programs or activities is a fact-specific analysis. For example, one
commenter questioned whether a document containing a recipient's
directives on health care payments would be covered by the exception if
the document did not otherwise discuss a particular program or
activity. The Department anticipates that the exception would likely
not cover such a document because the document is likely used as
instructions for making payments to the recipient as part of the
recipient's program and activity of collecting payments for health
services it provides. The Department provides additional information
about how the exception applies to documents that provide instructions
or guidance below. Another example is an informational document
containing a recipient hospital's description of the accessibility
features available throughout its hospital building. The Department
anticipates that the exception would likely not cover such a document.
One of the recipient's programs and activities is maintaining its
building, including the building's accessibility features. An
individual with a disability who accesses the document to understand
the hospital's accessibility features before going to the hospital to
visit a relative receiving treatment there would be currently using the
document to gain access to the hospital's building.
Additionally, the Department notes that preexisting documents are
also not covered by the exception if they provide instructions or
guidance related to other documents that are directly used to apply
for, gain access to, or participate in the recipient's programs or
activities. Therefore, in addition to making a preexisting PDF
application for benefits conform with WCAG 2.1 Level AA, a recipient
would also have to make other preexisting documents conform with WCAG
2.1 Level AA if they may be needed to obtain the benefits, complete the
application, understand the process, or otherwise take part in the
program, such as application instructions,
[[Page 40141]]
manuals, and guides, such as ``Questions and Answers'' documents.
The Department recognizes that there may be some overlap between
the content covered by the archived web content exception and the
exception for preexisting conventional electronic documents. The
Department notes that if web content is covered by the archived web
content exception, it does not need to conform to WCAG 2.1 Level AA to
comply with this rule, even if the content fails to qualify for another
exception, such as the preexisting conventional electronic document
exception. For example, after the date a recipient college is required
to comply with this rule, its health clinic website may still include
PDF documents containing the schedules from academic year 2017-2018
that were posted in non-archived areas of the website in the summer of
2017. Those PDFs may be covered by the preexisting conventional
electronic documents exception because they were available on the
college's health clinic website prior to the date it was required to
comply with this rule, unless they are currently used to apply for,
gain access to, or participate in a recipient's programs or activities,
in which case, as discussed in this rule, they would generally need to
conform to WCAG 2.1 Level AA. However, if the college moved the PDFs to
an archived area of its health clinic site and the PDFs satisfied all
parts of the definition of archived web content, the documents would
not need to conform to WCAG 2.1 Level AA, regardless of how the
preexisting conventional electronic document exception might otherwise
have applied, because the content would fall within the archived web
content exception.
Also, because the exception only applies to preexisting
conventional electronic documents, it would not cover documents that
are open for editing if they are changed or revised after the date a
recipient is required to comply with this rule. For example, a school
may maintain an editable word processing file, such as a Google Docs
file, that lists the dates on which the school held school board
meetings. The school may post a link to the document on its website so
members of the public can view the document online in a web browser,
and it may update the contents of the document over time after
additional meetings take place. If the document was posted to the
school's website prior to the date it was required to comply with the
rule, it would be a preexisting conventional electronic document unless
the school added new dates to the document after the date it was
required to comply with this rule. If the school made such additions to
the document, the document would no longer be preexisting.
Nevertheless, there are some circumstances where conventional
electronic documents may be covered by the exception even if copies of
the documents can be edited after the date the recipient is required to
comply with this rule. For example, a recipient may post a Microsoft
Word version of a flyer on its website prior to the date it is required
to comply with this rule. A member of the public could technically
download and edit that Word document after the date the recipient is
required to comply with the rule, but their edits would not impact the
``official'' posted version. Therefore, the official version would
still qualify as preexisting under the exception. Similarly, PDF files
that include fillable form fields (e.g., areas for a user to input
their name and address) may also be covered by the exception so long as
members of the public do not edit the content contained in the official
posted version of the document. However, as discussed below, the
exception does not apply to documents that are currently used to apply
for, gain access to, or participate in a recipient's programs or
activities. The Department notes that whether a PDF document is
fillable may be relevant in considering whether the document is
currently used to apply for, gain access to, or participate in a
recipient's programs or activities. For example, a PDF form that must
be filled out and submitted when submitting medical information to a
health provider is currently used to apply for, gain access to, or
participate in a recipient's programs or activities, and therefore
would not be subject to the exception for preexisting conventional
electronic documents.
Comment: Commenters mentioned several populations that would be
affected, including participants in adult education programs that may
need to use another recipient's document for tools, skills and programs
for future employment training; citizens who will be unable to petition
the government for redress of grievances due to inaccessible meeting
presentation documents; and researchers who will not have access to
research publications, public health reports, and reports about
community health needs.
Several commenters pointed out that people with disabilities must
disclose their disability in requests for accessible versions of
preexisting conventional electronic documents and wait for the
recipient to remediate the document. One commenter said that a
recipient's time is better spent on making sure new conventional
electronic documents are accessible rather than historical data.
Several commenters pointed out that small recipients will have an
additional three years to publish inaccessible materials, many of which
will not be archived for several years. These commenters believed that
these timeframes could be interpreted by these recipients to mean that
those documents do not need to be made accessible.
One commenter stated that documents that meet the preexisting
conventional document exception but are no longer applicable to a
current program or activity should be archived. The commenter wrote
that the remaining documents included under this exception should be
limited, if any. Another commenter said that documents that recipients
provide are often ``living'' documents, meaning they will be edited
often, but not archived for several years. A different commenter
expressed appreciation of the Department's clarification that if a
recipient updates an otherwise covered document after the effective
date of this rule, it is no longer considered preexisting.
One commenter noted that there are already advances in technology
that allow for modification of preexisting conventional electronic
documents.
Response: The Department understands the concerns raised by
commenters about the potential burdens that individuals with
disabilities may face because some conventional electronic documents
covered by the exception are not accessible. The Department emphasizes
that even if certain content does not have to conform to the technical
standard, recipients still need to ensure that their programs and
activities offered using web content are accessible to people with
disabilities on a case-by-case basis in accordance with their other
obligations under section 504. These obligations include making
reasonable modifications to avoid discrimination on the basis of
disability, ensuring that communications with people with disabilities
are as effective as communications with people without disabilities,
and providing people with disabilities an equal opportunity to
participate in or benefit from the recipient's programs or
activities.\170\
---------------------------------------------------------------------------
\170\ See 45 CFR 84.68(b)(1)(ii), (b)(7), 84.77.
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The Department agrees that recipients may choose to archive their
existing conventional electronic documents if they meet the definition
of archived web content in Sec. 84.10. The Department also agrees that
if a recipient changes or
[[Page 40142]]
revises a preexisting document following the date it is required to
comply with the rule, the document would no longer be ``preexisting''
for the purposes of the exception.
Summary of Regulatory Changes
For the reasons set forth above, the comments received, and other
changes throughout this rulemaking, the Department is making limited
modifications to Sec. 84.85(b). As discussed above, the Department is
eliminating the phrase ``created by or for a recipient'' because such
situations are now addressed by the ``directly or through contractual,
licensing, or other arrangements'' language inserted into Sec.
84.84(a) and (b). The Department is also replacing ``on a recipient's
website or mobile app'' with ``as part of a recipient's web content or
mobile apps'' to ensure consistency with other parts of the regulatory
text by referring to ``web content'' rather than ``websites.'' In
addition, the Department removed the phrase ``members of the public''
from the language of the exception for consistency with the edits to
Sec. 84.84 of the section 504 regulation and title II of the ADA.
The Department sought comment on the following questions pertaining
to web content posted by a third party (Sec. 84.85(c)):
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?
The comments and our responses on Sec. 84.85(c) are set forth
below.
Comment: Commenters stated that social media profiles of recipients
allow for public comments from news about emergencies like disasters or
shooters and can be more current than the local news coverage.
Commenters describe social media as spaces used to complain about
community conditions, get advice, and get organized. Commenters also
stated that social media is used to understand new programs, health
policy, public comments, and public contracts. Some commenters found
that tools for accessibility provided on social media platforms may not
be sufficient for accessibility. Another commenter recommended
requiring training on how to use these third-party accessibility
features and that such trainings should be documented.
Commenters mentioned situations, other than through social media,
where web content is posted by a third party on a recipient's website
such as when recipients post forums for public comments, promote
individuals' rights to petition the government for redress of
grievances, solicit real-time feedback during public meetings, or seek
bids for contracts on third-party platforms. Other commenters mentioned
teachers assigning work through a class message board that may require
students to reply with video, essay, wiki page or other work. Another
commenter mentioned scheduling tools, maps, calendars, and payment
systems. One commenter said that third-party content could be uploaded
to a case docket and the inaccessibility of such posting could deny the
individual the right to a fair hearing as well as equal employment in
the legal profession.
Some commenters said that if this exception is eliminated,
recipients can take steps to make sure content is accessible by
changing settings, setting rules, and prompting users to include alt
text.
A few commenters said they are not able to control third-party
content and supported this exception. Those commenters said it's up to
the third-party to make content accessible. Some commenters said
recipients often receive materials from third parties, including legal
documents like signed contracts, that could be materially altered if
the recipient makes them accessible. One commenter said that enforcing
accessibility may force recipients to remove resources otherwise
helpful to their enrollees such as population health management
programs. Another commenter agreed with the exception but thought that
the recipient should be able to provide an accessible system for the
general structure and that text-only postings should be easy to make
accessible and recommend that this level of accessibility be required.
One commenter requested clarification on (1) criteria for how
recipients can distinguish among third-party content that may or may
not allow members of the public to participate in or benefit from the
recipient's programs or activities; and (2) whether the technical
standard requirements would apply to third-party materials that are
linked within a recipient's website such as other websites or non-text
content. Some commenters voiced concerns with the challenge of meeting
requirements in the proposed time frame as they have already procured
most of their software for development. One commenter recommended that
OCR conduct additional outreach and educational activities to software
and other vendors to ensure that they know about technology
accessibility standards.
Some other commenters requested that the Department edit part of
the exception because while third-party content can be located on the
recipient's website, it may not always be ``posted'' by the third-party
entity.
Response: The Department appreciates the responses, particularly
those that identified situations where a third party may post content
on a recipient's website. The final rule includes this exception in
recognition of the fact that individuals other than a recipient's
agents sometimes post content on a recipient's web content and mobile
apps. 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 unmonitored, 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 to no control over the content that the third party posted.
In some cases, a recipient's website may include posts from third
parties dating back many years, which are likely of 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 less frequently accessed than other content, there may be
only limited benefit to requiring recipients to make this content
accessible. An example would be a recipient website that includes a
comment section that allows members of the public to post reviews or
responses.
Based on the comments received, the Department believes there may
be confusion, especially among recipients, as to what content would be
excepted. The exception in Sec. 84.85(c) does not apply to content
posted by the recipient itself, or posted on behalf of the recipient
due to contractual, licensing, or other arrangements, 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
[[Page 40143]]
by an outside technology company. Sometimes a third party might even
build a recipient's website template on the recipient's behalf. To the
extent a recipient chooses to rely on third-party content on its
website in these ways, it must select third-party content that meets
the requirements of Sec. 84.84. This is because a recipient may not
delegate away its obligations under section 504.\171\ If a recipient
relies on a contractor or another third party to post content on the
recipient's behalf, the recipient retains responsibility for ensuring
the accessibility of that content.
---------------------------------------------------------------------------
\171\ See 45 CFR 84.4, redesignated as Sec. 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).
---------------------------------------------------------------------------
The Department has added language to the third-party posted
exception in the final rule to make clear that the exception does not
apply where a third party is posting on behalf of the recipient. The
language provides that the exception does not apply if ``the third
party is posting due to contractual, licensing, or other arrangements
with the recipient.'' The Department added this language to make clear
that the exception only applies where the third-party posted content is
independent from the actions of the recipient--that is, where there is
no arrangement under which the third party is acting on behalf of the
recipient. If such an arrangement exists, the third-party content is
not covered by the exception and must be made accessible in accordance
with this rule. This point is also made clear in language the
Department added to the general requirements of Sec. 84.84, which
provides that recipient shall ensure web content and mobile apps that
the recipients provide or make available, ``directly or through
contractual, licensing, or other arrangements,'' are readily accessible
to and usable by individuals with disabilities. The Department decided
to add the same clarification to the exception for third-party posted
content because this is the only exception in the final rule that
applies solely based upon the identity of the poster (whereas the other
exceptions identify the type of content at issue), and the Department
believes clarity about the meaning of ``third party'' in the context of
this exception is critical to avoid the exception being interpreted
overly broadly. The Department believes this clarification is justified
by the concerns raised by commenters.
The majority of the comments received addressed instances in which
a State or local government may receive third party posts on public
forum matters from members of the public, not instances where health
and human service providers receive third party posts on their own
websites. Many of the comments also focused on the social media posts
of recipients that may receive third party comments over which the
recipients have no control.
The Department is committed to providing guidance on this
rulemaking once finalized as appropriate.
Comment: Many commenters disagreed with this exception. These
commenters said that people would lose access to time-sensitive
information, employment opportunities, educational content, and robust
opportunities to participate in public feedback sessions. They also
said that people with disabilities would not be able to participate in
discussions of shared grievances and concerns about their communities
that will lead to lack of ability to seek redress for those grievances.
One commenter said that ADA covered entities may be less mindful of
their ADA obligations if they are under no pressure from recipients to
make certain content accessible. A different commenter remarked on the
web accessibility standard differences between ADA title III entities
posting on section 504 third-party pages, saying that because title III
does not have specific web accessibility standards, third-party pages
are less likely to make their content accessible if the section 504
entity doesn't pressure them to do so.
Several commenters expressed support for this exception. One
commenter thought it was unreasonable to ask the recipient to police
third-party content. One commenter was not sure how to pose a solution
to inaccessible third-party content being posted, but thought that
posting accessibility guidelines on their websites for third parties to
use could be feasible. Another commenter thought that lack of access to
third-party content was merely an annoyance to people with disabilities
that could potentially become problematic if the recipient relies on
the public to provide their customer support.
Response: After reviewing the comments, the Department emphasizes
at the outset the narrowness of this exception--any third-party content
that is posted due to contractual, licensing, or other arrangements
with the recipient would not be covered by this exception. The
Department sometimes refers to the content covered by this exception as
``independent'' or ``unaffiliated'' content to emphasize that this
exception only applies to content that the recipient has not
contracted, licensed, or otherwise arranged with the third party to
post. This exception would generally apply, for example, where the
recipient enables comments from members of the public on its social
media page and third-party individuals independently comment on that
post.
The Department recognizes that the inclusion of this exception
means web content posted by third parties may not consistently be
accessible by default. The Department emphasizes that even if certain
content does not have to conform with the technical standard,
recipients still need to ensure that their programs and activities
offered using web content and mobile apps are accessible to people with
disabilities on a case-by-case basis in accordance with their existing
obligations under section 504. These obligations include making
reasonable modifications to avoid discrimination on the basis of
disability, ensuring that communications with people with disabilities
are as effective as communications with people without disabilities,
and providing people with disabilities an equal opportunity to
participate in or benefit from the recipient's programs or
activities.\172\
---------------------------------------------------------------------------
\172\ See 45 CFR 84.68(b)(1)(ii), (b)(7), 84.77.
---------------------------------------------------------------------------
Additionally, the Department wishes to clarify that while the
exception for third-party posted content applies to that content which
is posted by an independent third party, the exception does not apply
to the authoring tools and embedded content provided by the recipient,
directly or through contractual, licensing, or other arrangements.
Because of this, authoring tools, embedded content, and other similar
functions provided by the recipient that facilitate third-party
postings are not covered by this exception and must be made accessible
in accordance with the rule. Further, recipients should consider the
ways in which they can facilitate accessible output of third-party
content through authoring tools and guidance.
With respect to comments pertaining to title III of the ADA, the
Department emphasizes that this proposed rulemaking only addresses
recipients' obligations under section 504.
Summary of Regulatory Changes
For the reasons set forth above and considering the comments
received, we are finalizing Sec. 84.85(c) with limited modifications
to clarify that the exception does not apply where a third party is
posting on behalf of the recipient due to contractual, licensing, or
other arrangements. This point is also made clear in the general
requirements
[[Page 40144]]
of Sec. 84.84, which provides that recipients shall ensure web content
and mobile apps that the recipients, ``directly or through contractual,
licensing, or other arrangements'' provide or make available are
readily accessible to and usable by individuals with disabilities.
The Department sought comment on the following questions pertaining
to linked third-party web content (Sec. 84.85(d)):
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 recipients' 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?
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?
The comments and our responses on Sec. 84.85(d) are set forth
below.
Comment: Many commenters opposed this exception. Several commenters
believed it was important that third parties share some of the
responsibility for making their content accessible. Commenters provided
examples of recipients linking to third-party web content such as a
public health department providing up to date information about a
shortage of a certain medication and identifying which pharmacies still
have a supply. Some commenters said that recipients should only link
content that is accessible on their own website.
Several commenters were in favor of this exception. One commenter
believed that enforcing accessibility may force recipients to remove
resources otherwise helpful to their enrollees such as a population
health management program tailored to certain enrollees.
Response: After consideration of the comments received, the
Department believes that inclusion of this exception is unnecessary,
would result in confusion, and that removing the exception more
consistently aligns with the language of section 504 and the
Department's intent in proposing the exception in the NPRM. The
Department believes that the proper analysis is whether a recipient has
``directly, or through contractual, licensing, or other arrangements,''
provided or made available the third-party content. This means that,
for example, when a recipient posts links to third-party web content on
the recipient's website, the links located on the recipient's website
and the organization of the recipient's website must comply with Sec.
84.84. Further, when a recipient links to third-party web content that
is provided by the recipient, directly or through contractual,
licensing, or other arrangements, the recipient is also responsible for
ensuring the accessibility of that linked content. However, when
recipients link to third-party websites, unless the recipient has a
contractual, licensing, or other arrangement with the website to
provide or make available content, those third-party websites are not
covered by section 504, because they are not programs or activities
provided or made available by recipients, and thus recipients are not
responsible for the accessibility of that content. By deleting this
exception, the Department will maintain its original intent without
unnecessary confusion for recipients or members of the public.
Rather than conduct a separate analysis under the proposed
exception in the NPRM, the Department believes the simpler and more
legally consistent approach is for recipients to assess whether the
linked third-party content reflects content that is covered under this
rule to determine their responsibility to ensure the accessibility of
that content. If that content is covered, it must be made accessible in
accordance with the requirements of Sec. 84.84. However, if the
content is not provided or made available by a recipient, directly or
through contractual, licensing, or other arrangements, even though the
recipient linked to that content, the recipient would not be
responsible for making that content accessible. The recipient would
still need to ensure the links themselves are accessible, but not the
unaffiliated linked third-party content.
Comment: Commenters who opposed this exception expressed the view
that if the Department moves forward with this exception, it will
undermine recipients' attempts to bring their vendors and partners into
compliance. One commenter said that only posting accessible third-party
content will reduce the chance of adverse impact on people with
disabilities. This commenter believes that the provider writing the
third-party content will benefit financially from such linkage and that
this is a negotiating aspect for accessibility. Several commenters said
that contracts with third parties should include accessibility
requirements.
One commenter proposed that if the linked content is important to
understanding or providing context to users of the recipient's website,
an alternate method of access should be provided. For example, the
commenter suggested using a statement like ``Please follow this link
for relevant context or contact our customer support line if you need
help understanding this information.''
Response: The Department reiterates that rather than conduct a
separate analysis under the proposed exception in the NPRM, the simpler
and more legally consistent approach is for recipients to assess
whether the linked third-party content reflects content that is covered
under this rule to determine their responsibility to ensure the
accessibility of that content. If that content is covered, it must be
made accessible in accordance with the requirements of Sec. 84.84.
However, if the content is not provided or made available by a
recipient, directly or through contractual, licensing, or other
arrangements, even though the recipient linked to that content, the
recipient would not be responsible for making that content accessible.
The recipient would still need to ensure the links themselves are
accessible, but not the unaffiliated linked third-party content.
Whether third-party linked content is covered by the requirements of
Sec. 84.84 depends on the facts and circumstances. In instances where
linked third-party content provides instructions or guidance related to
the recipient's programs and activities, the linked third-party content
is likely subject to the requirements of Sec. 84.84.
Comment: Most commenters thanked HHS for not including an exception
for mobile apps. Commenters mentioned situations where external mobile
apps would provide access to programs and activities, including but not
limited to: telehealth, patient communication, appointment booking,
bill payment, test results, medication information, tracking transit
vehicles like non-emergency medical transportation, e-books, event
announcements, tickets, food service ordering, media, and
entertainment.
One commenter said the accessibility requirements should be
included in the
[[Page 40145]]
contracts between recipients and third-party app developers. Another
stated that content created should also follow accessibility standards
in apps. Another commenter said that people who are deaf, deafblind,
deafdisabled, late-deafened, and hard of hearing are often unable to
seek telehealth medical advice due to the inability of the conferencing
platform to support sign language interpretation, video relay service,
or captioning.
One commenter encouraged HHS to include an exception for external
mobile apps.
Response: The Department appreciates the comments. As discussed
above, the Department has removed the linked third-party web content
exception from the final rule altogether.
The Department recognizes that 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 recipient's programs and
activities. This part of the analysis refers to mobile apps that are
developed, owned, and operated by third parties as ``external mobile
apps.'' In the final rule, external mobile apps are subject to Sec.
84.84 in the same way as mobile apps that are developed, owned, and
operated by a recipient. Accordingly, if a recipient, directly or
through contractual, licensing, or other arrangements, provides or
makes available an external mobile app, that mobile app must comply
with Sec. 84.84 unless it is subject to one of the exceptions outlined
in Sec. 84.85.
Summary of Regulatory Changes
For the reasons set forth above and considering the comments
received, we are deleting proposed Sec. 84.85(d).
Proposed Sec. 84.85(e) contained an exception for password-
protected class or course content used by postsecondary institutions
with limitations based on when the recipient knew or should have known
that a student with a disability is preregistered for a course or has
enrolled in a course after the start of the academic term and will be
unable to access the password-protected class or course content due to
disability.
The Department invited comment on the following questions
pertaining to password-protected class or course content:
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?
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) introductory text and (e)(1) and (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?
The comments and our responses on Sec. 84.85(e) are set forth
below.
Comment: Several commenters mentioned that DOJ and ED provided
guidance in early 2010 which led most public colleges and universities
to develop universally designed courses using a framework that outlines
methods of designing courses to make them accessible for all students,
including students with disabilities. Commenters stated that Federal
agencies have also funded technical assistance resources for colleges
and universities; such resources have included information about how to
implement coordinated systems for the timely provision of accessible
materials and technologies and some of these resources touch on
improving access capabilities to Science, Technology, Engineering, Math
(STEM) materials.
Many commenters commented on how difficult it is for a college to
wait until a student enrolls in a course and then have to retroactively
attempt to fix inaccessible courses. Others mentioned that several
colleges and universities already have policies requiring that new
digital content be made accessible subject only to fundamental
alteration and undue burden limitations. One commenter stated that
simple courses may take five days to remediate while more complex
courses with visual materials, audio materials, or other inaccessible
documents will take significantly longer. This commenter added that if
more than one course needs to be remediated, then the five-day period
will no longer be feasible for simple courses. One commenter said that
remediating a textbook can take the same amount of time as designing a
new course. That same commenter mentioned that large videos can take a
lot of time to caption and provide audio content on, even when
outsourcing. One commenter mentioned that planning and coordination of
the conversion of accessible content can take two to three hours per
course.
Another commenter mentioned that students may need access to the
course prior to the official start of the semester. Several commenters
talked about the impact of a student dropping and then adding a course
during the beginning of the semester.
One commenter asked who the responsible party is when a high school
student enrolls in college courses in situations of dual enrollment.
One commenter mentioned that when requirements for captioned
television shows were first mandated, similar
[[Page 40146]]
concerns were expressed about the difficulty of coming into compliance
with new regulations, but now captioned television is part of the
industry norm.
Some commenters supported the exception.
Response: Having reviewed the public comments, the Department
believes it is appropriate, as many commenters suggested, not to
include the previously proposed course content exceptions in the final
rule. For many of the reasons noted by commenters, the Department
concludes that the proposed exceptions would not meaningfully ease the
burden on educational institutions and would significantly exacerbate
educational inequities for students with disabilities. The Department
concludes that the proposed exceptions would have led to an
unsustainable and infeasible framework for recipients to make course
content accessible, which would not have resulted in reliable access to
course content for students with disabilities. As many commenters
noted, it would have been extremely burdensome and sometimes even
impossible for educational institutions to comply consistently with the
rapid remediation timeframes set forth in the limitations to the
proposed exceptions in the NPRM, which would likely have led to
widespread delays in access to course content for students with
disabilities. While extending the remediation timeframes might have
made it more feasible for educational institutions to comply under some
circumstances, this extension would have commensurately delayed access
for students with disabilities, which would have been harmful for the
many reasons noted by commenters. The Department believes that it is
more efficient and effective for educational institutions to use the
two- or three-year compliance timeframe to prepare to make course
content accessible proactively, instead of having to scramble to
remediate content reactively.
Accordingly, under the final rule, password-protected course
content will be treated like any other content and will generally need
to conform to WCAG 2.1 Level AA. To the extent that it is burdensome
for recipients to make all of their content, including course content,
accessible, the Department believes the rule contains a series of
mechanisms that are designed to make it feasible for these institutions
to comply, including the delayed compliance dates discussed in Sec.
84.84, the other exceptions discussed in Sec. 84.85, the provisions
relating to conforming alternate versions and equivalent facilitation
discussed in Sec. Sec. 84.86 and 84.87, the fundamental alteration and
undue burdens limitations discussed in Sec. 84.88, and the approach to
measuring compliance with the rule discussed in Sec. 84.89.
Comment: Many commenters said this exception would reduce a person
with a disability's opportunity to change courses, exclude them from
education, and give them fewer opportunities to succeed than their
peers. Several commenters mentioned that this exception would put a
student with a disability five days behind their peers and that for a
January or summer-term course, a five-day delay could be a third of the
course. Commenters also mentioned that due to the delays in graduation,
students faced loss of earning from being unable to enter the workforce
which was a cost that taxpayers took on through vocational
rehabilitation funds, Federal student loans, and Pell grants.
Some of the commenters mentioned a case where two blind students
were excluded from an educational program because of inaccessible
classroom materials, textbooks, websites, and educational applications.
These commenters pointed out that the two students could not
independently enroll in courses, nor could they use library databases,
and were forced to either drop classes or accept a lower grade.
A commenter discussed instances where most of the classes in a law
school were not made accessible, but in one class where they were
accessible, it took six to eight weeks for a student to receive them.
This student had to extend her studies and the cost was split between
the student and the State's vocational rehabilitation program.
Some commenters pointed to the DOJ's May 19, 2023, Dear Colleague
Letter on Online Accessibility at Postsecondary Institutions, saying
that postsecondary institutions are already required to make all course
materials accessible under the ADA.
Response: The Department appreciates the comments and notes the
important concerns for students with disabilities when postsecondary
institutions do not make their courses accessible or do not provide
accessible materials in a timely manner. As discussed, the Department
has decided not to include proposed Sec. 84.85(e) in the final rule.
The comments on this issue illustrate the challenges associated
with setting remediation timeframes in this context. If the Department
were to shorten the remediation timeframes, it would make it even
harder for educational institutions to comply, and commenters have
already indicated that the previously proposed remediation timeframes
would not be workable for those institutions. If the Department were to
lengthen the remediation timeframes, it would further exacerbate the
inequities for students with disabilities that were articulated by
commenters. The Department believes the better approach is to not
include the course content exceptions in the final rule to avoid the
need for educational institutions to make content accessible on an
expedited timeframe on the back end, and to instead require recipients
to treat course content like any other content covered by this rule.
Comment: Commenters mentioned a wide variety of communication
vehicles including emails, website postings, social media, mobile apps,
phone video calls, live orientation events, in-class announcements, and
learning management systems, that postsecondary institutions use to
communicate information to their students.
Response: The Department appreciates these comments and notes that
the definitions of ``web content'' and ``mobile apps'' describe the
content that is covered under this rule.
Comment: Concerning whether postsecondary institutions provide
parents with access to course content, one commenter mentioned the
Family Educational Rights and Privacy Act which gives students the
ability to allow parents and guardians limited access to student
information including mid-semester and final grades. The commenter was
concerned about access for parents with disabilities given permission
under this law to view such content.
Response: The Department appreciates these comments. As noted
above, the Department will not adopt this proposed exception.
Comment: On whether postsecondary institutions combine and make
available content for particular groups, several commenters mentioned
the learning management systems for general groups of students and said
that password-protected websites should be required to meet WCAG
guidelines.
Response: The Department appreciates these comments and notes that
this final rule will not adopt the previously proposed exceptions for
password-protected course content. Password-protected course content
will therefore need to be accessible, in accordance with this final
rule.
Comment: On how much and what content password-protected course
websites contain, commenters listed electronic textbooks, slide decks,
PDFs and digital articles, shared documents,
[[Page 40147]]
video and audio recordings, announcements, message boards, discussion
boards, blogs, spreadsheets, assignments, tables and graphs,
interactive labs, links to education sites, and interactive websites.
Response: The Department appreciates these comments and notes that
the breadth of content that postsecondary institutions offer to
students is one of the reasons that the Department will not include
this proposed exception in the final rule.
Comment: One commenter stated that courses will likely take more
than five days to remediate, especially if they rely on electronic
textbooks and large videos.
Another commenter mentioned that students may need access to the
course prior to the official start of the semester. Several commenters
talked about the impact of a student dropping and then adding a course
during the beginning of the semester.
One commenter asked who the responsible party is when a high school
student enrolls in college courses in situations of dual enrollment.
Response: The Department appreciates these comments and, for the
reasons already discussed, this rule will not adopt the previously
proposed course content exceptions that included this five-day
remediation period.
Comment: Some commenters supported applying the exceptions proposed
at Sec. 84.85(e) introductory text and (e)(1) and (2) to mobile apps.
Other commenters disagreed saying that there should be no exceptions
and that there are already federally funded resources and technical
assistance that support the acquisition of software and applications
that are accessible and interactive with assistive technology.
Response: The Department appreciates these comments. For the
reasons previously noted, the final rule does not include the exception
previously proposed at Sec. 84.85(e).
Comment: On alternatives for this exception, including making newly
posted course content accessible on an expedited time frame, commenters
stated that priority should be given to entry-level courses, high
enrollment courses, courses of the majors that students with
disabilities are currently enrolled in, and courses with high drop,
withdrawal and failing grade rates. Others mentioned being proactive
about providing accessibility training to students and employees.
One commenter encouraged HHS to hold third-party vendors
accountable for creating accessible products and suggested funding
staff positions for course compliance reviews and remediation work. One
commenter said that postsecondary institutions should be required to
make student-provided visual and audio content accessible to students
with disabilities.
Response: The Department appreciates these comments. For the
reasons discussed, the Department is not including the proposed
exception in the final rule and will not adopt the alternative
approaches suggested. Also, the Department notes that the definitions
of ``web content'' and ``mobile apps'' as well as the rule's exceptions
and limitations describe the content that is covered under this rule.
Comment: Many commenters said that digital books and textbooks
should be accessible to people with disabilities. Several commenters
specifically said that digital books and textbooks should conform to
WCAG 2.2 accessibility standards, and that e-readers, learning
management systems, and other technology that delivers digital books
and textbooks must also be accessible.
Many commenters wanted HHS to clarify that while schools or
libraries may ultimately be responsible for providing access to digital
books and textbooks, the third-party publishers play a significant role
in the accessibility of textbooks and digital books. Some commenters
indicated that if all libraries and schools required publishers to
deliver accessible versions, then this would reduce the work that goes
into converting them into accessible formats, often done by scanning
pages and saving as PDF files. These commenters also said that schools
and libraries are currently put into positions of having to procure,
create, or break digital rights management protections to provide
accessible textbooks and digital books.
One commenter mentioned a study that found that out of a random
sampling of 355 Open Educational Resource materials, only two passed an
accessibility test, and that the accessibility barriers were either
caused by the author or creator or the authoring software and
publishing tools.
One commenter mentioned additional challenges with STEM materials
as they have complex equations, graphics, maps, and spatial educational
materials and alt text may not be sufficient to convey the concept of
these items.
Commenters suggested when a course is updated to use a new textbook
(or a new edition of an existing textbook), the Department should
require a recipient to select the most accessible option that meets the
instructional goals. Commenters said educational institutions should be
responsible for providing accessible alternatives to assigned homework
and readings if the textbook is not accessible. These commenters
remarked that educational institutions should report to students
whether a textbook is accessible or not when the course is advertised,
since this materially impacts the likelihood of timely access to the
textbook. Commenters said that advertising this information about the
accessibility status of a textbook also helps make the faculty members
more aware for future decision making.
Response: The Department appreciates these comments and also
recognizes the importance of the accessibility of digital textbooks for
students regardless of disability status, and notes that the majority
of commenters expressed concern with the possibility of lowered
standards for the accessibility of digital textbooks. After weighing
all the comments, the Department believes the most prudent approach is
to treat digital textbooks, including EPUBs (electronic publications),
the same as all other educational course materials, which are subject
to this rule's accessibility requirements. The Department believes that
treating digital textbooks, including EPUBs, in any other way would
lead to the same problems with respect to the proposed exceptions for
password-protected class or course content. For example, if the
Department created a similar exception for digital textbooks, it could
result in courses being partially accessible and partially inaccessible
for certain time periods while books are remediated to meet the needs
of an individual with a disability, which could be confusing for both
educational institutions and students with disabilities. Furthermore,
it would be virtually impossible to set forth a remediation timeframe
that would provide educational institutions sufficient time to make
digital textbooks accessible without putting students with disabilities
too far behind their peers. Accordingly, the Department did not make
any changes to the rule to specifically address digital textbooks. The
Department notes that if there are circumstances where certain aspects
of digital textbooks cannot conform to WCAG 2.1 Level AA without
changing the meaning of the content, recipients may assess whether the
fundamental alteration or undue financial or administrative burdens
limitations apply, as provided in Sec. 84.88. However, if an action
required to comply with Sec. 84.88 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
[[Page 40148]]
burdens but would nevertheless ensure that, to the maximum extent
possible, individuals with disabilities receive the benefits or
services provided by the recipient.
The Department also recognizes that WCAG 2.2 is a newer standard
but, as discussed, the Department is adopting WCAG 2.1 Level AA to
balance benefits for individuals with disabilities with feasibility for
recipients making their content accessible in compliance with this
rule. In addition, the Department believes that digital textbooks
should be subject to the same standards as other web content and mobile
apps to reduce confusion and ensure a uniform experience and
expectations for users with disabilities.
The Department also recognizes the importance of the accessibility
of digital books for students regardless of disability status, and
notes that the majority of commenters expressed concern with the
possibility of lowered standards for the accessibility of digital
books. The Department agrees that third-party publishers will play an
important role in making digital books accessible and appreciates the
concerns expressed by commenters that educational institutions may have
limited power to require third-party vendors to make content
accessible. The Department believes that the delayed compliance dates
in this rulemaking will help recipients establish contracts with third-
party vendors with sufficient lead time to enable the production of
materials that are accessible upon being created. In addition, if this
rulemaking incentivizes publishers to produce accessible content, that
decision may enable hundreds of educational institutions subject to
this rule to obtain accessible content. The Department also expects
that as a result of this rulemaking, there will be an increase in
demand for accessible content from third-party vendors, and therefore a
likely increase in the number of third-party vendors that are equipped
to provide accessible content.
The Department also appreciates the suggestion of requiring an
advertisement of whether a course's digital books are accessible, but
believes that a more appropriate solution, based mainly on the
overwhelming support for accessible digital books, would simply be to
require all such content to be accessible.
Summary of Regulatory Changes
For the reasons set forth above and considering the comments
received, the Department has decided not to include proposed Sec.
84.85(e) in the final rule.
Proposed Sec. 84.85(f) contained an exception for password-
protected class or course content used by elementary and secondary
schools with limitations based on when the recipient knew or should
have known that a student is preregistered for a course or has enrolled
in a course after the start of the academic term, and the student or
their parent will be unable to access the password-protected class or
course content due to disability. The Department invited comment on the
following questions pertaining to elementary and secondary schools:
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) introductory text and (f)(1) through (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?
The comments and our responses on Sec. 84.85(f) are set forth
below.
Comment: Several commenters disagreed with implementing the
exception for password-protected class or course content. Commenters
said that this exception conflicts with ED's recommendations to States
and school districts regarding the best ways to exemplify conditions
and services for creating and sustaining a Statewide, high-quality
accessible, educational materials (AEM) provision system that is also
designed to meet statutory requirements under the Individuals with
Disabilities Education Act (IDEA) and to assure students have access to
the requisite assistive technology to access AEM. Commenters said if
the exception remains, virtually every student with a relevant
disability would be discriminated against in violation of both Federal
and State statutes.
A couple of commenters mentioned that there have been legal actions
that have resulted in schools directing significant financial and human
power to accessibility. Commenters stated that by not including the
exception and requiring accessibility of password-protected class or
course content, the burden of making materials accessible would be
taken off of teachers, who are already overburdened, and instead
require action and investment from schools and districts.
Some commenters urged HHS to not sanction recipients that purchase
inaccessible content and platforms. Several other commenters agreed
with this exception.
Response: The Department appreciates these comments and recognizes
that many commenters believe this proposed exception would have a
negative impact on the education of elementary and secondary students
with disabilities. For all of the reasons
[[Page 40149]]
commenters have provided, in addition to the reasons discussed above
regarding the Department's decision not to adopt Sec. 84.85(e), the
Department will not include this proposed exception in the final rule.
With respect to schools and districts redirecting funding and
resources towards accessibility, the Department acknowledges that,
while this rulemaking may unburden teachers from having to ensure
accessibility, it would also impose costs on recipients. Full estimates
of costs can be found in the accompanying RIA. While recipients will
likely incur costs to comply with this final rule, the RIA indicates
that in comparing annualized costs and benefits of this rule, the
monetized benefits to society outweigh the costs. In addition, the
Department reminds recipients that they are already required to ensure
that their programs and activities, including the programs and
activities of educational institutions, are accessible to people with
disabilities.\173\
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\173\ See 45 CFR 84.4, redesignated as Sec. 84.68.
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Comment: Several commenters stated that all technology used to
deliver instruction in the classroom should be accessible to all
individuals with disabilities from kiosks, websites, and applications;
to third-party websites or apps used for class content; and to any form
of information and communication technology, including virtual reality
(VR).
Commenters mentioned that accessibility challenges were evident
during the COVID-19 public health emergency, and that students and
adults with disabilities experienced significant barriers to education,
including not being able to access instruction because schools claimed
they did not have the capacity to make inaccessible online curriculum
programs and related digital materials accessible. Commenters noted
that when digital devices (e.g., laptops and tablets) and materials
(print, digital, audio, video, etc.) were provided for remote use in K-
16 settings in particular, many were not accessible or interoperable
(compatible) with the assistive technology used by the student,
preventing equal access and opportunity to make the same academic
progress as students without disabilities.
Some commenters said that five days to remediate is often
unreasonable because schools may not have control over third-party
platforms, and even if the school could meet the five-day deadline, it
still puts the child with a disability at a disadvantage behind their
peers. Some commenters mentioned an online science experiment without
audio information that required that the student connect pieces by
using finger gestures. One commenter provided an example where a
student with a disability was given an exemption for that activity but
missed out on the learning opportunity. Another example was given of a
popular online mathematics curriculum which stated that third graders
will encounter more than 300 math skills over the course of 47 lessons.
A student could miss two or three lessons and 15 to 30 skills in a
five-day period. Another commenter mentioned a situation where a school
district had to buy a $12,000 textbook in Braille. While the other
students were online playing games, the student with a disability was
reading a textbook and was not included in the learning. The teacher
also had to spend time figuring out how to align the textbook and
online learning.
Some commenters said this exception leaves parents with
disabilities out of meaningful participation in their child's education
and makes it difficult for teachers with disabilities to stay employed.
Commenters pointed out that Federal law requires that students
exhaust all remedies under the IDEA before pursuing an ADA complaint.
These commenters stated that the proposed exception would only further
delay student access to course materials in a timely way.
Response: The Department appreciates these comments and
acknowledges the concerns about accessibility challenges during the
COVID-19 pandemic, the proposed 5-day remediation period, and concerns
about parents with disabilities not being able to participate in their
child's education. The education of children in elementary and
secondary settings is of vital importance and the Department does not
intend to limit the educational opportunities, development, and future
career potential for students with disabilities. Because, in part, of
the issues raised in the comments above, as well as the reasons
discussed earlier, the Department will not include this proposed
exception in the final rule. The Department also appreciates the
comments about the burden on teachers to provide accessible content and
align the content with their lesson plans. The Department believes that
rulemaking in this area will encourage schools and districts to create
or acquire accessible content, removing this burden from teachers and
spurring vendors to improve the accessibility of their offerings. With
respect to the different technologies that recipients use to provide
education, the Department again notes the definitions of ``web
content'' and ``mobile apps'' describe the content that is covered
under this rule.
Comment: On how elementary and secondary schools communicate with
students and parents, commenters listed several methods including
through emails, posts on school district websites, and posts on social
media websites.
Response: The Department appreciates these comments and notes that
the definitions of ``web content'' and ``mobile apps'' describe the
content that is covered under this rule.
Comment: Some commenters remarked that content on a password-
protected website should not be a part of this exception. They stated
that content could be hosted by a third party such as a textbook
publisher. These commenters said that when third parties ensure their
content is accessible, it reduces the work that teachers have to do as
the content is grouped by type of course.
Response: The Department appreciates these comments. While section
504 applies to recipients of Departmental financial assistance,
recipients will have to ensure that any web content or mobile apps they
provide or make available, directly or through contractual, licensing,
or other arrangements, is accessible. This approach is consistent with
the existing framework under section 504.\174\ Under this framework,
recipients have obligations in other section 504 contexts where they
choose to contract, license, or otherwise arrange with third parties to
provide programs or activities.
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\174\ See 45 CFR 84.4(b)(1), redesignated Sec. 84.68(b)(1).
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Comment: A few commenters said that most schools do not have a
system for parents to notify the school of a need for access and that
most do not provide access to their course content. Another commenter
recommended that the Department require schools to inquire with parents
about accessibility needs for both them and their students during the
registration process. One commenter mentioned that special education
services for students are not meant for parents with disabilities and
that teachers and staff are usually the ones adapting materials for
students.
Response: The Department appreciates these comments. In part
because of issues with parents and students requesting accessible web
content and mobile apps and elementary and secondary institutions
providing that accessible web content and mobile apps, the Department
does
[[Page 40150]]
not intend to keep this proposed exception in the final rule.
Comment: One commenter said that password-protected course websites
may merely contain supplemental information or all the information that
the student needs to participate in class, and everything in-between.
Another commenter listed types of documents that may be on a password-
protected course website, including commercially produced curriculum,
commercially produced e-books, teacher-created materials, materials
purchased or otherwise obtained by the teacher from an external source,
PDFs of passages from old books, and student-created materials.
Some commenters mentioned that content could be posted by third
parties such as other students doing group work. One commenter said
content posted by students or parents should also be required to be
accessible.
One commenter suggested teaching children in 5th grade or above
about how to make their own content accessible. This commenter argued
that this could be a life skill that would be useful for future
employment opportunities, otherwise, the school would have to remediate
content posted by students.
One commenter asked the Department whether course content that can
be accessed through a PIN authentication or the user's personal email
login information would be considered password-protected course content
under the NPRM.
Response: The Department appreciates these comments on the range of
password-protected content on elementary and secondary websites. In
part because of the wide range of content on password-protected course
websites and its importance, the Department will not be including this
exception in the final rule. Again, the Department notes that the
definitions of ``web content'' and ``mobile apps'' describe the content
that is covered, subject to the rule's exceptions and limitations.
Comment: Several commenters said that course content should be
accessible on or before the first day of class for students and
parents. One commenter mentioned that teachers sometimes require course
work over the summer which means the content would need to be
accessible earlier. One commenter said any delays should be minimal and
offset by modifications in the meantime. Commentors pointed out that
delays caused unnecessary stress and reduce learning outcomes.
One commenter stated that schools will take as long as the
Department gives them to make the content accessible regardless of how
long it actually takes them. The commenter stated that schools are
juggling competing priorities, so if the Department makes this a
priority, schools will follow.
Response: The Department understands these concerns and
acknowledges there may be situations where providing remediated course
content in five days would neither be possible or preferrable for the
recipient, student, or parent. For the reasons already discussed, this
final rule will not be adopting this exception.
Comment: Some commenters want the Department to adopt the same
exceptions and limitations to the exceptions under Sec. 84.85(f)(1)
through (4) to mobile apps. Many commenters disagreed with applying the
exception to mobile apps to enable access to password-protected course
content for parents and students. Several commenters mentioned that a
large majority of digital interfaces used by schools have associated
mobile apps which need to be accessible for students and parents with
disabilities and can be interoperable with assistive technology.
One commenter mentioned that students as young as kindergarten use
mobile devices to access course materials, complete course work, and
communicate with teachers. Another commenter said that schools even
require mobile app use for course work in some instances.
Response: The Department appreciates these comments. The Department
recognizes the importance and growing ubiquity of mobile apps in a
variety of areas, including elementary and secondary education. For the
reasons previously noted, the final rule does not include the exception
previously proposed at Sec. 84.85(e).
Comment: On whether the Department should consider an alternate
approach to this exception, such as requiring all newly posted course
content to be made accessible on an expedited time frame, one commenter
said priority can be given to newly posted course content and existing
required reading with the goal that the rest of the content come into
compliance as well. Another commenter thought the Department should not
extend the 2-to-3-year implementation period. Instead, the commenter
said that schools should create a plan for remediation on the fastest
possible timeline with the option to apply fundamental alteration and
undue burdens limitations if appropriate and necessary.
One commenter mentioned that school curriculums for K-12 are often
purchased on either a district or State level every three-to-five
years. While such planning gives teachers less autonomy over their
curriculums, by purchasing curriculums on a district or State level,
accessibility concerns have drastically reduced. The same commenter
recommended that institutions prioritize their proactive accessibility
efforts along three dimensions: (1) classes that are required for
graduation or promotion to the next grade, (2) district-level
curriculum and educational technology adoption, and (3) courses that
move at an accelerated pace (e.g., honors, advanced placement).
Response: The Department appreciates these comments. While some
commenters suggested requiring recipients to follow specific procedures
to comply with this rule, the variety of proposals the Department
received from commenters indicates the harm from being overly
prescriptive in how educational institutions comply with the rule. The
final rule provides educational institutions with the flexibility to
determine how best to bring their content into compliance within the
two or three years they have to begin complying with this rule.
Some commenters suggested that the Department should require all
new course content to be made accessible more quickly, while providing
a longer time period for recipients to remediate existing course
content. There were a range of proposals from commenters about how this
could be implemented. Some commenters suggested that the Department
could set up a prioritization structure for existing content, requiring
educational institutions to prioritize the accessibility of, for
example, content for required courses; content for district-level
courses; and content for honors-level courses.
The Department does not believe these approaches would be feasible.
Treating new course content differently than existing course content
could result in particular courses being partially accessible and
partially inaccessible, which could be confusing for both educational
institutions and students, and make it challenging for students with
disabilities to have full and timely access to their courses. Moreover,
even under this hybrid approach, the Department would presumably need
to retain remediation timeframes for recipients to meet upon receiving
a request to make existing course content accessible. For the reasons
discussed above, it would be virtually impossible to set forth a
remediation timeframe that would
[[Page 40151]]
provide educational institutions sufficient time to make content
accessible without putting students with disabilities too far behind
their peers. In addition, given the wide variation in types of courses
and educational institution structures, it would be difficult to set a
prioritization structure for existing content that would be workable
across all such institutions.
The Department believes the better approach is to not include the
course content exceptions in the final rule to avoid the need for
educational institutions to make content accessible on an expedited
timeframe on the back end, and to instead require recipients to treat
course content like any other content covered by this rule.
Summary of Regulatory Changes
For the reasons set forth above and considering the comments
received, the Department has decided not to include proposed Sec.
84.85(f) in the final rule.
Proposed Sec. 84.85(g) contained an exception for individualized,
password-protected documents. The Department invited comment on
following questions regarding this exception:
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?
The comments and our responses regarding Sec. 84.85(g) are set
forth below.
Comment: Commenters provided many examples of individualized,
password-protected conventional electronic documents, including, but
not limited to: test results, clinical summaries, post-operative care
instructions, current and past bills, determination letters, patient
health summaries, patient letters, questionnaires, results and reports,
appointments, past visits, immunization records, explanation of
benefits, receipts, diagnoses, imaging results, and treatment plans.
Some commenters supported the individualized, password-protected
conventional electronic document exception. Several others wanted the
exception eliminated, saying that many documents are already being made
accessible in accordance with public law, such as electronic health
records. These commenters also mentioned that making such documents
accessible can be done without much difficulty; one commenter said that
this is achievable through automated generation of accessible PDFs from
HTML with layouts that are not overly complex. Many commenters pointed
to the fundamental alteration and undue burdens limitations already
available to recipients. Commenters believed this exception was
disincentivizing recipients making content accessible.
One commenter asked the Department for guidance on how to best
support providing accommodations to the public for PDF documents and
whether they would need to make any workflow undertaken by a patient
after authenticating such as when a patient uses a patient portal to
schedule an appointment with their provider.
Response: After reviewing the comments, the Department has decided
to retain this exception in the final rule. The Department continues to
believe that recipients often provide or make available a large volume
of individualized, password-protected or otherwise secured conventional
electronic documents, many of which do not pertain to individuals with
disabilities, and it may be difficult to make all such documents
accessible. Therefore, the Department believes it is sensible to permit
entities to focus their resources on ensuring accessibility for the
specific individuals who need accessible versions of those documents.
If, as many commenters suggested, it is in fact more efficient and less
expensive for some recipients to make all such documents accessible by
using a template, there is nothing in the rule that prevents recipients
from taking that approach.
The Department notes that this exception applies only to password-
protected or otherwise secured content. Content may be otherwise
secured if it requires a member of the public to use 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 covered by the
exception.
The Department recognizes that there may be some overlap between
the content covered by this exception and the exception for certain
preexisting conventional electronic documents, Sec. 84.85(b). The
Department notes that if web content is covered by the exception for
individualized, password-protected or otherwise secured conventional
electronic documents, it does not need to conform to WCAG 2.1 Level AA
to comply with this rule, even if the content fails to qualify for
another exception, such as the preexisting conventional electronic
document exception. For example, a recipient might retain on its
website an individualized, password-protected unpaid medical bill in a
PDF format that was posted before the date the entity was required to
comply with this rule. Because the PDF would fall within the exception
for individualized, password-protected or otherwise secured
conventional electronic documents, the documents would not need to
conform to WCAG 2.1 Level AA, regardless of how the preexisting
conventional electronic documents exception might otherwise have
applied.
The Department understands the concerns raised by commenters about
the potential burdens that people with disabilities may face if
individualized password-protected or otherwise secured documents are
not all made accessible at the time they are created and about the
potential negative consequences for people with disabilities who do not
have timely access to the documents that pertain to them. The
Department reiterates that, even when documents are covered by this
exception, the existing section 504 obligations require recipients to
furnish appropriate auxiliary aids and services where necessary to
ensure an individual with a disability has, for example, an equal
opportunity to enjoy the benefits of a service.\175\ Such auxiliary
aids and services could include, for example, providing PDFs that are
accessible. In order for such an auxiliary aid or service to ensure
effective communication, it must be provided in a timely manner, and in
such a way as to protect the
[[Page 40152]]
privacy and independence of the individual with a disability. Whether a
particular solution provides effective communication depends on
circumstances in the interaction, including the nature, length,
complexity, and context of the communication, per Sec. 84.77(b)(2).
For example, the presence of an emergency situation or a situation
where information is otherwise urgently needed would impact what it
would mean for a recipient to ensure it is meeting its effective
communication obligations. Recipients can help to facilitate effective
communication by providing individuals with disabilities with notice
about how to request accessible versions of their individualized
documents.
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\175\ See 45 CFR 84.68(b)(1)(ii), (b)(7), 84.77.
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Moreover, while individualized, password-protected or otherwise
secured conventional electronic documents are subject to this
exception, any public-facing, web- or mobile app-based system or
platform that a recipient uses to provide or make available those
documents or to allow the public to make accessibility requests, must
itself be accessible as defined in Sec. 84.84 if it is not covered by
another exception. The recipient would need to ensure that that
platform complies with Sec. 84.84. In addition, web content and
content in mobile apps that does not take the form of individualized,
password-protected or otherwise secured conventional electronic
documents but instead notifies users about the existence of such
documents must still conform to WCAG 2.1 Level AA unless it is covered
by another exception. For example, a hospital's health records portal
may include a list of links to download individualized, password-
protected PDF medical records. Under WCAG 2.1 Success Criterion 2.4.4,
a recipient would generally have to provide sufficient information in
the text of the link alone, or in the text of the link together with
the link's programmatically determined link context, so that a user
could understand the purpose of each link and determine whether they
want to access a given document.
The Department also reiterates that 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. For example, if a
covered medical provider has a policy under which administrative
support staff are in charge of uploading PDF versions of X-ray images
into patients' individualized accounts after medical appointments, but
the provider knows that a particular patient is blind, the provider may
need to modify its policy to ensure that a staffer with the necessary
expertise provides an accessible version of the information the patient
needs from the X-ray. Also, at this time, the Department declines to
provide guidance on PDF documents, but may provide future guidance,
where appropriate.
The Department also understands that some of these documents,
especially documents without complex layouts, may be made accessible
relatively easily, including through automated generation. Even with
the proposed exception, many recipients may decide that they will
change their templates for individualized password-protected or
otherwise secured conventional electronic documents to make them all
accessible in order to avoid modifying individual documents after the
fact for people with disabilities.
Comment: Many commenters said that the time that recipients spend
on building a notification system would be better spent on making
documents accessible from the start. Otherwise, commenters said that
recipients generally do not provide a clear means of notification. One
commenter wanted more robust requirements and enforcement. Several
commenters suggested making methods of contact in easy-to-access
location such as on a download index page, front page of a portal and
throughout the online system in an accessible manner.
One State said it did not have ways for individuals to request
access to documents on their main State web pages, but individual units
and programs sometimes have an email for general questions and
comments.
Commenters want HHS to establish timelines for providing accessible
individualized, password-protected conventional electronic documents if
this exception is implemented. Examples that commenters provided
included same day for post-operative instructions and quickly for
bills. One commenter recommended a maximum of five business days for
remediation as delays in getting access to individualized, password-
protected conventional electronic document can be inequitable or cause
harm.
Several commenters mentioned that once such a request is made for
an accessible individualized, password-protected conventional
electronic document, then the recipient should apply that request to
all documents and notices sent to the requester with a disability going
forward.
Response: The Department appreciates the comments including those
on notification systems and making all individualized password-
protected or otherwise secured conventional electronic documents
accessible from the start as well as methods of contact. The
Department, however, believes it is more appropriate to give recipients
flexibility in how they provide or make available individualized,
password-protected or otherwise secured conventional electronic
documents, so long as those recipients ensure that individuals with
disabilities have timely access to the information contained in those
documents in an accessible format that protects the privacy and
independence of the individual with a disability.
Moreover, the Department does not believe it is workable to
prescribe a set number of days under which a recipient must make these
documents accessible since the content and quantity of individualized,
password-protected or otherwise secured documents may vary widely, from
a one-page medical bill to thousands of pages of medical records. The
range of possible timeframes that commenters suggested, coupled with
the comments the Department received on the remediation timeframes that
were associated with the previously proposed course content exceptions,
helps to illustrate the challenges associated with selecting a specific
number of days for recipients to remediate content.
The Department also notes that where, for example, a recipient is
on notice that an individual with a disability needs accessible
versions of an individualized, password-protected PDF medical bill,
that recipient is generally required to continue to provide information
from that medical bill in an accessible format in the future; the
recipient generally may not require the individual with a disability to
make repeated requests for accessibility.
The Department reiterates that, even when documents are covered by
this exception, other section 504 obligations require recipients to
furnish appropriate auxiliary aids and services where necessary to
ensure an individual with a disability has, for example, an equal
opportunity to enjoy the benefits of a service.\176\ Whether a
particular solution provides effective communication depends on
circumstances in the interaction, including the nature, length,
complexity, and context of the communication.\177\
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\176\ 45 CFR 84.77(b)(1).
\177\ 45 CFR 84.77(b)(2).
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Comment: Several commenters said that the impact of an exception
for individualized, password-protected documents on people with
disabilities would be having to rely on companions
[[Page 40153]]
or strangers to read their documents, attempting to request accessible
formats, or pursuing legal action. If the recipient posts contact
information on their websites, many commenters pointed out that the
onus is still on the individual with a disability to make the requests
for accessible individualized, password-protected conventional
electronic documents. Commenters mentioned these requests take time,
and a patient with a disability who has just had surgery, for example,
may not have the energy to make requests for accessible post-operative
instructions. Additionally, commenters said that people with
disabilities will continue to have difficulty with independence when
paying their bills, receiving communications from their doctors,
reviewing and using school transcripts, reading job offer letters or
notices related to a contract, accessing their medical records and
other personal information.
Some commenters believe that if the Department moves forward with
this exception, then recipients are disincentivized from prioritizing
accessibility.
Response: While the Department agrees that people with disabilities
will sometimes need access to password-protected or otherwise secured
conventional electronic documents on a rapid timeline, particularly
when they have important health implications, the Department disagrees
that this proposed exception signals to recipients that the Department
is disincentivizing accessibility. Recipients are still required to
ensure that they provide accessible versions of documents to people
with disabilities who request them.
As discussed, the Department believes that recipients often provide
or make available a large volume of individualized, password-protected
or otherwise secured conventional electronic documents, many of which
do not pertain to individuals with disabilities, and it may be
difficult to make all such documents accessible. Therefore, the
Department believes it is sensible to permit recipients to focus their
resources on ensuring accessibility for the specific individuals who
need accessible versions of those documents.
The Department intends to strike the appropriate balance between
accessibility and for people with disabilities and practicality for
recipients.
Comment: On whether any of the exceptions discussed should apply to
mobile apps, several commenters said that they believe the Department
should adopt the same rules for web content and mobile apps since many
people use mobile phones almost exclusively.
Response: The Department agrees that the exceptions should apply to
both web content and mobile apps to the extent both web content and
mobile apps are used in the contexts covered by the exceptions.
Summary of Regulatory Changes
For the reasons set forth above and considering the comments
received, we are finalizing Sec. 84.85(g) (redesignated as Sec.
84.85(d) due to deletions of preceding paragraphs) with the addition of
``or otherwise secured conventional electronic'' to the heading of the
exception, for consistency with the text of the exception itself. This
modification does not change the meaning or substance of the exception
as proposed in the NPRM.
Conforming Alternate Versions (Sec. 84.86)
Proposed Sec. 84.86 stated that recipients may use conforming
alternate versions of web content instead of making their web content
accessible only if it is not possible to make their web content
directly accessible due to technical or legal limitations.
The Department invited comment on the following:
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 recipients'
programs and activities?
The comments and our responses regarding Sec. 84.86 are set forth
below.
Comment: Many commenters agreed that conforming alternate versions
of web content should only be allowed in instances where it is
impossible to make the web content in question compliant with WCAG 2.1
Level AA due to technical or legal limitations. They argued that
requiring a separate website or alternative method for people with
disabilities is inherently unequal and recipients should avoid such
situations unless absolutely necessary. They also noted that
historically, separate websites for people with disabilities have not
provided the same access and functionality. Some commenters stated that
recipients should be allowed to create conforming alternate version of
web content regardless of technical or legal limitations because it
provides more flexibility for recipients. Some of those commenters
argued that WCAG 2.1 allows for conforming alternate versions and
stated a belief that a separate website would allow for greater
attention to detail and operability for people with disabilities.
Response: We appreciate the comments regarding the Department's
approach to ``conforming alternate versions.'' Under WCAG, a
``conforming alternate version'' is a separate web page that, among
other things, 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.\178\
Conforming alternate versions are allowable under WCAG. For reasons
explained below, the Department believes it is important to put
guardrails on when recipients may use conforming alternate versions
under this rule. This final rule, therefore, specifies that the use of
conforming alternate versions is permitted only in limited, defined
circumstances, which represents a slight departure from WCAG 2.1.
Section 84.86 states that a recipient may use conforming alternate
versions of web content to comply with Sec. 84.84 only where it is not
possible to make web content directly accessible due to technical or
legal limitations.
---------------------------------------------------------------------------
\178\ See W3C, 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].
---------------------------------------------------------------------------
Generally, to conform to WCAG 2.1, a web page must be directly
accessible in that it satisfies the success criteria for one of the
defined levels of conformance--in the case of this final rule, Level
AA.\179\ However, as noted above, WCAG 2.1 also allows for the creation
of a ``conforming alternate version.'' The 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. The Department believes that having direct access to
accessible web content provides the best user experience for many
individuals with disabilities, and it may be difficult to reliably
maintain conforming alternate versions, which must be kept up to date.
W3C explains that providing a conforming alternate version is intended
to be a ``fallback option for conformance to WCAG and the preferred
method of conformance is to make all content directly accessible.''
\180\ However, WCAG 2.1 does not explicitly limit the circumstances
under which a
[[Page 40154]]
recipient may choose to create a conforming alternate version of a web
page instead of making the web page directly accessible.
---------------------------------------------------------------------------
\179\ See W3C, Web Content Accessibility Guidelines 2.1 (June 5,
2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F.
\180\ See W3C, Understanding Conformance (last updated June 20,
2023), https://www.w3.org/WAI/WCAG21/Understanding/conformance
[https://perma.cc/QSG6-QCBL].
---------------------------------------------------------------------------
The Department is concerned that WCAG 2.1 can be interpreted to
permit the development of two separate versions of a recipient's web
content--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 content that is accessible. Such an
approach would result in segregated access for individuals with
disabilities and be inconsistent with how section 504's core principles
of inclusion and integration have been historically interpreted.\181\
The Department is also concerned that the frequent or unbounded
creation of separate web content for individuals with disabilities may,
in practice, result in unequal access to information and functionality.
For example, and as discussed later in this section, the Department is
concerned that an inaccessible conforming alternate version may provide
information that is outdated or conflicting due to the maintenance
burden of keeping the information updated and consistent with the main
web content. As another example, use of a conforming alternate version
may provide a fragmented, separate, or less interactive experience for
people with disabilities because recipients may assume that interactive
features are not financially worthwhile or otherwise necessary to
incorporate in conforming alternate versions. Ultimately, as discussed
later in this section, the Department believes there are particular
risks associated with permitting the creation of conforming alternate
versions where not necessitated by the presence of technical or legal
limitations.
---------------------------------------------------------------------------
\181\ Redesignated, with minor revisions, at 45 CFR 84.68(d).
---------------------------------------------------------------------------
Due to the concerns about user experience, segregation of users
with disabilities, unequal access to information, and maintenance
burdens discussed above, the Department is adopting a slightly
different approach to conforming alternate versions than that provided
under WCAG 2.1. Instead of permitting recipient to adopt conforming
alternate versions whenever they believe it is appropriate, Sec. 84.86
states that a recipient may use conforming alternate versions of web
content to comply with Sec. 84.84 only where it is not possible to
make 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 that cannot be changed due to legal
reasons). The Department believes 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. However, Sec.
84.86 does not prohibit recipients from providing alternate versions of
web pages in addition to their WCAG 2.1 Level AA compliant main web
page to possibly provide users with certain types of disabilities a
better experience.
Having reviewed public comments and considered this issue
carefully, the Department believes the rule strikes the right balance
to permit conforming alternate versions, but only where it is not
possible to make web content directly accessible due to technical or
legal limitations. The Department believes that this approach ensures
that generally, people with disabilities will have direct access to the
same web content that is accessed by people without disabilities, but
it also preserves flexibility for recipients in situations where, due
to a technical or legal limitation, it is impossible to make web
content directly accessible. The Department also believes that this
approach will help avoid the concerns noted above with respect to
segregation of people with disabilities by defining only specific
scenarios when the use of conforming alternate versions is appropriate.
The determination of when conforming alternate versions are needed
or permitted varies depending on the facts. For example, a conforming
alternate version would not be permissible just because a recipient's
web developer lacked the knowledge or training needed to make content
accessible; that would not be a technical limitation within the meaning
of Sec. 84.86. By contrast, the recipient could use a conforming
alternate version if its web content 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. 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.
The Department would also like to clarify the interaction between
the allowance of conforming alternate versions under Sec. 84.86 and
the general limitations provided in Sec. 84.88. These two provisions
are applicable in separate circumstances. If there is a technical or
legal limitation that prevents a recipient from complying with Sec.
84.84 for certain content, Sec. 84.86 is applicable. The recipient can
create a conforming alternate version for that content, and, under
Sec. 84.86, that recipient will be in compliance with this final rule.
Separately, if a fundamental alteration or undue financial and
administrative burdens prevent a recipient from complying with Sec.
84.84 for certain content, Sec. 84.88 is applicable. As set forth in
Sec. 84.88, the recipient must still ``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.'' A recipient's legitimate claim of fundamental alteration or
undue burdens does not constitute a legal limitation under Sec. 84.86
for which a conforming alternate version automatically suffices to
comply with the rule. Rather, the recipient must ensure access ``to the
maximum extent possible'' under the specific facts and circumstances of
the situation. Under the specific facts a recipient is facing, the
recipient's best option to ensure maximum access may be an alternate
version of its content, but the recipient also may be required to do
something more or something different. Because the language of Sec.
84.88 already allows for alternate versions if appropriate for the
facts of recipient's fundamental alteration or undue burdens, the
Department does not see a need to expand the language of Sec. 84.86 to
address commenters' concerns.
The Department also wishes to clarify the relationship between
Sec. Sec. 84.86 and 84.89, which are analyzed independently of each
other. Section 84.86 provides that a recipient may use conforming
alternate versions of web content, as defined by WCAG 2.1, to comply
with Sec. 84.84 only where it is not possible to make web content
directly accessible due to technical or legal limitations. Accordingly,
if a recipient does not make its web content directly accessible and
instead provides a conforming alternate version when not required by
technical or legal limitations, the recipient may not use that
conforming alternate version to
[[Page 40155]]
comply with its obligations under the rule, either by relying on Sec.
84.86 or by invoking Sec. 84.89.
Summary of Regulatory Changes
The Department will make a slight edit to Sec. 84.86 to replace
``websites and web content'' with ``web content.'' Upon further review,
the Department determined that ``web content'' is more in line with the
rest of the rule and would limit potential confusion among sections,
including Sec. 84.84. This change will not alter the meaning of Sec.
84.86.
Equivalent Facilitation (Sec. 84.87)
Proposed Sec. 84.87 stated that recipients may use alternative
methods to those described in this subpart when the alternative method
results in substantially equivalent or greater accessibility and
usability of the web content or mobile app.
Section 84.87 provides that nothing prevents a recipient from using
designs, methods, or techniques as alternatives to those prescribed in
the 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.\182\ The reason for allowing for equivalent
facilitation in this subpart is to encourage flexibility and innovation
by recipients while still ensuring equal or greater access to web
content and mobile apps. Especially in light of the rapid pace at which
technology changes, this provision is intended to clarify that
recipients can use methods or techniques that provide equal or greater
accessibility than this rule would require. For example, if a recipient
wanted to conform its web content or mobile app to a future web and
mobile app accessibility standard that expands accessibility
requirements beyond WCAG 2.1 Level AA, this provision makes clear that
the recipient would be in compliance with this rule. Recipients could
also choose to comply with this rule by conforming their web content to
WCAG 2.2 Level AA \183\ because WCAG 2.2 Level AA provides
substantially equivalent or greater accessibility and usability to WCAG
2.1 Level AA; in particular, WCAG 2.2 Level AA includes additional
success criteria not found in WCAG 2.1 Level AA and every success
criterion in WCAG 2.1 Level AA, with the exception of one success
criterion that is obsolete.\184\
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\182\ See 28 CFR part 36, appendix D at 1000 (1991); 36 CFR part
1191, appendix B at 329.
\183\ W3C, WCAG 2 Overview, https://www.w3.org/WAI/standards-guidelines/wcag/ [https://perma.cc/RQS2-P7JC] (Oct. 5, 2023).
\184\ W3C, What's New in WCAG 2.2 Draft, https://www.w3.org/WAI/standards-guidelines/wcag/new-in-22/ [https://perma.cc/GDM3-A6SE]
(Oct. 5, 2023).
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Similarly, a recipient could comply with this rule by conforming
its web content and mobile apps to WCAG 2.1 Level AAA,\185\ which is
the same version of WCAG and includes all the WCAG 2.1 Level AA
requirements, but includes additional requirements not found in WCAG
2.1 Level AA for even greater accessibility. For example, WCAG 2.1
Level AAA includes Success Criterion 2.4.10 \186\ for section headings
used to organize content and Success Criterion 3.1.4 \187\ that
includes a mechanism for identifying the expanded form or meaning of
abbreviations, among others. The Department believes that this
provision offers needed flexibility for recipients 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.
---------------------------------------------------------------------------
\185\ W3C, Web Content Accessibility Guidelines (WCAG) 2.1,
Sec. 5.2 Conformance Requirements (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#conformance-reqs [https://perma.cc/XV2E-ESM8].
\186\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1,
Success Criterion 2.4.10 Section Headings (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#conformance-reqs:~:text=Success%20Criterion%202.4.10,Criterion%204.1.2 [https://perma.cc/9BNS-8LWK].
\187\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1,
Success Criterion 3.1.4 Abbreviations (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#conformance-reqs:~:text=Success%20Criterion%203.1.4,abbreviations%20is%20availabl
e [https://perma.cc/ZK6C-9RHD].
---------------------------------------------------------------------------
Summary of Regulatory Changes
The Department is finalizing Sec. 84.87 as proposed with a single
minor modification to add a missing comma.
Duties (Sec. 84.88)
Proposed Sec. 84.88 stated that if 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, the recipient
is only required to comply with Sec. 84.84 to the extent it does not
result in a fundamental alteration or undue financial and
administrative burdens. It also stated that a recipient has the burden
of proving that compliance with Sec. 84.84 would result in such
alteration or burdens, and 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. In addition, it stated that 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.
The comments and our responses regarding Sec. 84.88 are set forth
below.
Comment: Many commenters expressed appreciation for proposed Sec.
84.88 and opposed any measures that would constitute a fundamental
alteration or undue burden. Some commenters asked for additional
guidance on what would constitute a fundamental alteration or undue
burden.
Response: The Department appreciates these comments. 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 the requirements of Sec.
84.84 would fundamentally alter the nature of program or activity, or
would result in undue financial and administrative burdens, rests with
the recipient. These limitations on a recipient's duty to comply with
the regulatory provisions mirror the fundamental alteration and undue
burdens compliance limitations under the ADA title II regulation,\188\
and are consistent with how the limitations already operate in many
contexts under section 504. These limitations are thus familiar to many
recipients.
---------------------------------------------------------------------------
\188\ See 28 CFR 35.150(a)(3), 35.164, 35.130(b)(7).
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The Department believes, in general, 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 within the
meaning of this final rule. However, this is a fact-specific inquiry,
and the Department provides some examples later in this section of when
a recipient may be able to claim a fundamental alteration. Moreover,
like the fundamental alteration or undue burdens limitations in the
title II regulation and elsewhere in this final rule, Sec. 84.88 does
not relieve a recipient of all obligations to individuals with
disabilities. Although a recipient under this rule is not required to
take actions that would result in a fundamental
[[Page 40156]]
alteration in the nature of a program or activity, or in 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
complying with all of the success criteria under WCAG 2.1 Level AA
would result in a fundamental alteration or undue financial and
administrative burdens. However, the 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 conformance to some of the WCAG 2.1 Level A or
Level AA success criteria.
Whether the undue burdens limitation applies is a fact-specific
assessment that involves considering a variety of factors. For example,
some recipients have minimal operating budgets measured in the
thousands or tens of thousands of dollars. If such a recipient had an
archive section of its website with a large volume of older and
historical material (such as old photographs), the recipient would have
an obligation under the existing section 504 regulation to ensure that
its programs and activities offered using web content and mobile apps
are accessible to individuals with disabilities. However, it might be
an undue burden for the recipient to make all those materials fully
accessible in a short period of time in response to a request by an
individual with a disability.\189\ Whether the undue burdens limitation
applies, however, would depend, among other things, on how large the
recipient's operating budget is and how much it would cost to make the
materials in question accessible. Whether the limitation applies will
also vary over time. Increases in the recipient's budget, or changes in
technology that reduce the cost of making the historical materials
accessible, may make the limitation inapplicable. Lastly, even where it
would impose an undue burden on the recipient to make its historical
materials accessible within a certain time frame, the recipient would
still need to take any other action that would not result in such a
burden but would nevertheless ensure that individuals with disabilities
receive the benefits or services provided by the recipient to the
maximum extent possible.
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\189\ See proposed 45 CFR 84.68(b)(1)(ii), (b)(7), 84.77, 84.81.
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Application of the fundamental alteration limitation is similarly
fact specific. For example, a recipient might hold an art contest in
which students submit alternative covers for their favorite books and
students view and vote on the submissions on the recipient's website.
It would likely be a fundamental alteration to require the recipient to
modify each piece of artwork so that any text drawn on the alternative
covers, such as the title of the book or the author's name, satisfies
the color contrast requirements in the technical standard. Even so, the
recipient would still be required to take any other action that would
not result in such an alteration but would nevertheless ensure that
individuals with disabilities could participate in the contest to the
maximum extent possible.
Because each assessment of whether the fundamental alteration or
undue burdens limitations applies will vary depending on the recipient,
the time of the assessment, and various other facts and circumstances,
the Department declines to adopt any rebuttable presumptions about when
the fundamental alteration or undue burdens limitations would apply.
Complying with the web and mobile app accessibility requirements
set forth in Sec. Sec. 84.84 to 84.89 means that a recipient of
Federal financial assistance from the Department is not required by
this section 504 rule to make any further modifications to the web
content or content in mobile apps that it makes available to the
public. However, it is important to note that compliance with
Sec. Sec. 84.84 through 84.89 will not relieve recipients of their
distinct employment-related obligations under section 504, which
applies the employment standards set forth in title I of the ADA, as
described in Sec. 84.16. The Department realizes that this 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.
This approach is consistent with the approach that the Department
of Justice has taken in the context of physical accessibility under
title II. In that context, a covered entity is not required to exceed
the applicable design requirements of the ADA Standards even if certain
wheelchairs or other power-driven mobility devices require a greater
degree of accessibility than the ADA Standards provide.\190\ The entity
may still be required, however, to make other modifications to how it
provides a program, service, or activity, where necessary to provide
access for a specific individual. For example, where an individual with
a disability cannot physically access a program provided in a building
that complies with the ADA Standards, the covered entity does not need
to make physical alterations to the building but may need to take other
steps to ensure that the individual has an equal opportunity to
participate in and benefit from that program.
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\190\ See 28 CFR part 35, appendix A at 626 (2022).
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Similarly, just because a recipient is in compliance with this
rule's web content or mobile app accessibility standard does not mean
it has met all of its obligations under section 504 or other applicable
laws--it means only that it is not required to make further changes to
the web content or content in mobile apps that it makes available. 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 is still obligated under Sec. 84.84(a) 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 in undue financial and administrative burdens.
The recipient also must still satisfy its general obligations to
provide effective communication, reasonable modifications, and an equal
opportunity to participate in or benefit from the recipient's programs
or activities.
The recipient must determine on a case-by-case basis how best to
meet the needs of those individuals who cannot access a program or
activity that the recipient provides through web content or mobile apps
that comply with all of the requirements under WCAG 2.1 Level AA. A
recipient should refer to 45 CFR 84.68(b)(1)(ii) to determine its
obligations to provide individuals with disabilities an equal
opportunity to participate in and enjoy the benefits of the recipient's
programs or activities. A recipient should refer to Sec. 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
[[Page 40157]]
participate in, and enjoy the benefits of, the recipient's programs or
activities. A recipient should refer to Sec. 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. For
example, while not required in this final rule, 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 content or mobile apps or to request assistance.
Providing this information will help recipients to ensure that they are
satisfying their obligations to provide equal access, effective
communication, and reasonable modifications.
The Department also clarifies that a recipient's requirement to
comply with general equal access, effective communication, and
reasonable modification obligations remains in place for content that
fits under one of the exceptions under Sec. 84.85. For example, in the
appropriate circumstances, a recipient may be obligated to add captions
to a video that falls within the archived content exception and provide
the captioned video file to the individual with a disability who needs
access to the video, or edit an individualized password-protected PDF
to be usable with a screen reader and provide it via a secure method to
the individual with a disability. Of course, a recipient may also
choose to further modify the web content or content in mobile apps it
makes available to make that content more accessible or usable than
Sec. Sec. 84.84 to 84.89 require. In the context of the above
examples, for instance, the Department believes it will often be most
economical and logical for a recipient to post the captioned video,
once modified, as part of web content made available to the public; or
to modify the individualized PDF template so that it is used for all
members of the public going forward.
Summary of Regulatory Changes
The Department's final rule removes the word ``full'' in Sec.
84.88 so that the text reads ``compliance'' rather than ``full
compliance.'' The Department made this change because Sec. 84.84(b)(1)
and (2) clarify that compliance with this final rule includes complying
with the success criteria and conformance requirements under Level A
and Level AA specified in WCAG 2.1. This minor revision does not affect
the meaning of Sec. 84.88, but rather removes an extraneous word to
avoid redundancy and confusion.
Measuring Compliance
In the NPRM, the Department considered four possible approaches to
defining and measuring compliance, which involved linking noncompliance
with a technical standard to: (a) a numerical percentage; (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.\191\ The Department also invited comment on the following
questions regarding measuring compliance:
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\191\ 88 FR 63392, 63447-49 (Sept. 14, 2023).
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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 \192\ 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?
---------------------------------------------------------------------------
\192\ See 28 CFR 35.133(b).
---------------------------------------------------------------------------
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?
The provision at Sec. 84.89, adopted in the final rule and
discussed in the summary of regulatory changes, adopts approach (b),
``situations that impact the ability to have equal access to the
website or mobile app,'' from the NPRM, with a few changes.
Comment: Many commenters provided their opinions on what will be
necessary to measure compliance with the proposed standard adopted in
Sec. 84.84. Almost all commenters recognized that it would be nearly
impossible for recipients to conform to WCAG 2.1 Level AA across 100%
of web content and mobile apps, and recognized that there must be a
more nuanced method for measuring compliance. Most commenters also
[[Page 40158]]
supported a consistent standard that could be applied across the range
of recipients. One commenter stated that because the Department intends
to apply a nuanced approach to measuring compliance, any of these
methods for measuring compliance will be too difficult to enforce and,
therefore, the Department should not adopt any of the proposed
approaches to measuring compliance with the requirements of Sec.
84.84.
Response: The Department agrees that any method for measuring
compliance must be consistently applied across all recipients. The
Department is also persuaded that requiring 100 percent conformance to
WCAG 2.1 Level AA would not be the most prudent approach, and that a
recipient's compliance obligations can be limited under some narrow
circumstances without undermining the rule's objective of ensuring
equal access to web content and mobile apps. The Department believes
its approach should emphasize actual access, be consistent with
existing legal frameworks, and is supported by a wide range of
commenters.
First, digital content changes much more frequently than physical
buildings--another area covered by set accessibility standards--do.
Every modification to web content or a mobile app could lead to some
risk of falling out of perfect conformance to WCAG 2.1 Level AA.
Recipients will need to address this risk much more frequently under
this subpart than they do under physical access requirements, because
web content and mobile apps are updated much more often than buildings
are. By their very nature, web content and mobile apps can easily be
updated often, while most buildings are designed to last for years, if
not decades, without extensive updates.
As such, recipients trying to comply with their obligations under
this rule will need to evaluate their compliance more frequently than
they evaluate the accessibility of their buildings. But regular
consideration of how any change that they make to their web content or
mobile app will affect conformance to WCAG 2.1 Level AA and the
resulting iterative updates may still allow minor nonconformances to
escape notice. Given these realities attending web content and mobile
apps the Department believes that it is likely to be more difficult for
recipients to maintain perfect conformance to the technical standard
set forth in this rule than it is to comply with physical access
standards. Commenters agreed that maintaining perfect conformance to
the technical standard would be difficult.
Web content and content in mobile apps are also more likely to be
interconnected, such that updates to some content may affect the
conformance of other content in unexpected ways, including in ways that
may lead to technical nonconformance without affecting the user
experience for individuals with disabilities. Thus, to maintain perfect
conformance, it would not necessarily be sufficient for recipients to
confirm the conformance of their new content; they would also need to
ensure that any updates do not affect the conformance of existing
content. The same kind of challenge is unlikely to occur in physical
spaces.
Second, some commenters raised concerns about the litigation risk
that requiring perfect conformance to WCAG 2.1 Level AA would pose.
Commenters feared being subjected to a flood of legal claims based on
any failure to conform to the technical standard, however minor, and
regardless of the impact--or lack thereof--the nonconformance has on
accessibility. Commenters agreed with the Department's suggestion that
due to the dynamic, complex, and interconnected nature of web content
and mobile apps, a recipient's web content and mobile apps may be more
likely to be out of conformance to WCAG 2.1 Level AA than its buildings
are to be out of compliance with the ADA Standards, leading to
increased legal risk. Some commenters even stated that 100 percent
conformance to WCAG 2.1 Level AA would be unattainable or impossible to
maintain. Commenters also agreed with the Department's understanding
that the prevalence of automated web accessibility testing could enable
any individual to find evidence of nonconformance to WCAG 2.1 Level AA
even where that individual has not experienced any impact on access and
the nonconformance would not affect others' access, with the result
that identifying instances of merely technical nonconformance to WCAG
2.1 Level AA is likely much easier than identifying merely technical
noncompliance with the ADA Standards. Based on the comments it
received, the Department believes that if it does not implement a
tailored approach to compliance under this rule, the burden of
litigation under this subpart could become particularly challenging for
recipients, enforcement agencies, and the courts. Though many comments
about litigation risk came from recipients, commenters from some
disability advocacy organizations agreed that the rule should not
encourage litigation about issues that do not affect a person with a
disability's ability to equally use and benefit from a website or
mobile app, and that liability should be limited.
The Department does not agree that allowing minor deviations from
the technical standard that have minimal impact on access would be too
complicated and untenable. Simply because this approach may require
more steps to assess compliance than checking whether a website has
satisfied 100% of the WCAG 2.1 Level AA success criteria does not mean
this approach is not worthwhile or feasible. As discussed further, the
Department believes that the final version of Sec. 84.89 is tenable
and will help ensure the full and equal access to which individuals
with disabilities are entitled while allowing some flexibility for
recipients if nonconformance with WCAG 2.1 Level AA is so minimal as to
not affect use of the recipient's web content or mobile app.
Comment: Commenters advanced a variety of opinions on what is
sufficient evidence of noncompliance with the proposed technical
standard. Many commenters stated that any enforcement method should not
solely rely on automated software used to check compliance with web
content, but if automated checkers are used, any violations should be
confirmed by a human being. Automated checkers may result in false
positives or minor variations that do not affect access, leading to a
flood of legal actions. Some commenters stated that a determination of
noncompliance should only be made when there is a deviation from WCAG
2.1 Level AA and the deviation negatively impacts the ability of a
person with a disability to use the web content in question. Some
commenters stated that a deviation from WCAG 2.1 Level AA should only
be a violation if the deviation is inherent to the web content itself,
is widely prevalent, or there is no evidence of institutional
development in response to the deviation. One commenter summed up their
opinion by stating ``the true measure of compliance is whether a person
with a disability who needs access to a service can actually access it
or not.''
Response: The Department agrees that the method for measuring
compliance must take into consideration whether the deviation from the
WCAG 2.1 Level AA success criteria impacts an individual with a
disability's access to the web content in question.
Comment: Comments on whether a numerical percentage should be used
to measure compliance agreed that such a
[[Page 40159]]
measure of compliance would be arbitrary and not ensure that people
with disabilities are able to access web content. Some commenters
stated that it would be difficult, if not impossible, for larger
recipients to ensure 100% technical compliance at all times.
Response: The Department considered requiring a certain numerical
percentage of conformance with the technical standard and declines to
take this approach. The Department concluded that approach would be
unlikely to ensure access. Even if only a very small percentage of
content does not conform with the technical standard, that could still
block an individual with a disability from accessing a program or
activity. For example, even if there was only one instance of
nonconformance, that single error could prevent an individual with a
disability from submitting an application for benefits. As such, the
Department continues to believe that a percentage-based approach would
not be sufficient to advance this rule's objective to ensure equal
access to recipients' web content and mobile apps.
Comment: Some commenters expressed the view that a recipient's
policies and practices should be considered when determining compliance
with subpart I. Some of these commenters stated that policies for
receiving feedback, automated and manual testing, and remediation along
a set schedule should all be taken into account. Other commenters
stated that actual conformance to WCAG 2.1 Level AA, not whether a
recipient has policies in place, should determine compliance, but
policies could be used when determining enforcement or remediation
requirements following a violation. Some commenters thought that
policies should require automated testing, some thought policies should
require manual testing, and still others thought policies should
require both.
Response: The Department appreciates the comments on recipient
policies and practices concerning web and mobile accessibility. The
Department declines to adopt a policy-based approach because there is
not a sufficient rationale that would justify adopting any specific set
of accessibility policies in this generally applicable rule. There was
no consensus among commenters about what policies would be sufficient,
and most commenters did not articulate a specific basis supporting why
their preferred policies were more appropriate than any other policies.
In the absence of more specific rationales or a clearer consensus among
commenters or experts in the field about what policies would be
sufficient, the Department does not believe it is appropriate to
prescribe what specific accessibility testing and remediation policies
all recipients must adopt to comply with their obligations under this
rule. Based on the information available to the Department at this
time, the Department's adoption of any such specific policies would be
unsupported by sufficient evidence that these policies will ensure
accessibility, which could cause significant harm. It would allow
recipients to comply with their legal obligations under this rule based
on policies alone, even though those policies may fail to provide equal
access to online programs or activities.
The Department also declines to adopt a policy-based approach that
would rely on the type of general, flexible policies, in which the
sufficiency of recipients' policies would vary depending on the factual
circumstances. The Department does not believe that such an approach
would give individuals with disabilities sufficient certainty about
what policies and access they could expect. Such an approach would also
fail to give recipients sufficient certainty about how they should meet
their legal obligations under this rule. If it adopted a flexible
approach, the Department might not advance the current state of the
law, because every recipient could choose any accessibility testing and
remediation policies it believed would be sufficient to meet its
general obligations, without conforming to the technical standard or
ensuring access.
The Department agrees that while it may be useful to know a
recipient's policies and practices when investigating alleged
violations of this subpart, the ultimate goal is accessibility as
defined by the subpart. The Office for Civil Rights (OCR) is
responsible for investigating allegations that recipients have violated
section 504 and typically reviews recipients' policies and procedures
as part of an investigation. OCR will review policies, such as policies
that address feedback, testing, and timely remediation, when
determining resolutions of violations or instances where recipients
agree to come into voluntary compliance.
Although the final rule does not specifically require manual
testing by people with disabilities, because requiring such testing
could pose logistical or other hurdles, the Department recommends that
recipients seek and incorporate feedback from people with disabilities
on their web content and mobile apps. Doing so will help ensure that
everyone has access to critical government services.
Comment: Commenters were divided on whether a recipient should be
deemed to be compliant with subpart I if it remediates errors within a
set time period. Some commenters stated that the compliance date for
WCAG 2.1 Level AA is when the rule goes into effect for the recipient
and that any question of remediation is appropriately addressed in the
enforcement process. Some commenters support allowing for remediation
in a set time period, ranging from three days to months. Some
commenters endorsed shorter remediation time periods for recipients
with multiple violations or deviations from WCAG 2.1 AA.
Response: The Department agrees that the date for recipient web
content and mobile applications to comply with WCAG 2.1 Level AA is
stated in the proposed rule as either two or three years after the
final rule's publication date depending on the size of the recipient.
However, the Department is not adopting a framework where a recipient
has a certain period of time to remediate inaccessibility issues before
the recipient could be considered out of compliance with the rule. The
Department believes that adopting this approach would undermine a core
premise of the rule, which is that web content and mobile apps will
generally be accessible by default. Under section 504, individuals with
disabilities cannot be, by reason of such disability, excluded from
participation in or denied the benefits of recipients' programs or
activities, including those offered via the web and mobile apps.\193\
Accordingly, it is important for individuals with disabilities to have
access to the same platforms as their neighbors and friends at the same
time, and the commenters' proposal would not achieve that objective.
With this rule, the Department is ensuring that people with
disabilities generally will not have to request access to recipients'
web content and content in mobile apps, nor will they typically need to
wait to obtain that access. Given recipients' existing obligations
under section 504, recipients should already be on notice of their
general obligations. If they are not, this rule unquestionably puts
them on notice.
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\193\ 29 U.S.C. 794(a).
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Comment: Most of the commenters opposed different compliance
measures for new versus preexisting content. Almost all stated that
policing content based on its publication date would be too complicated
and that the proposed compliance dates of two or three years are
sufficient for all content.
[[Page 40160]]
Response: The Department agrees that the two- or three-year
compliance periods are sufficient for recipients to make their existing
web content and mobile apps accessible while preparing to make new web
content and mobile apps accessible, especially given the exception for
archived web content under Sec. 84.85(a).
Comment: Most of the comments on organizational maturity as a
method for measuring compliance took the position that it should not be
used. Specifically, those commenters stated that there is no direct
correlation between a recipient's organizational maturity and its
future compliance to WCAG 2.1 AA. One commenter stated that some
organizations deemed ``mature'' post inaccessible content while some
organizations not deemed ``mature'' post accessible content. Some
commenters voiced general support for using organizational maturity as
it would be a relatively simple method for the Department to enforce.
Some commenters also expressed misunderstandings concerning
organizational maturity, which suggests that an organizational maturity
model would be confusing to the public if adopted.
Response: There are many ways to measure organizational maturity,
and it is not clear to the Department that one organizational maturity
model is more appropriate or more effective than any other. The
Department therefore declines to adopt an organizational maturity
approach in this final rule because any organizational maturity model
for compliance with web accessibility that the Department could develop
or incorporate would not have sufficient justification based on the
facts available to the Department at this time. As with the policy-
based approach discussed above, if the Department were to allow
recipients to define their own organizational maturity approach instead
of adopting one specific model, this would not provide sufficient
predictability or certainty for people with disabilities or recipients.
Also, like the policy-based approach discussed above, if the
Department were to adopt an organizational maturity approach that was
not sufficiently rigorous, recipients would be able to comply this rule
without providing equal access. This would undermine the purpose of the
rulemaking.
Comment: Many of the commenters agreed that the Department should
limit compliance obligations if deviation from a specific WCAG 2.1 AA
success criteria does not limit access of a person with a disability.
Specifically, some commenters stated that a recipient should not be
deemed in violation of subpart I if people with disabilities are able
to access their web content and mobile apps. Some commenters stated
that the Department should prioritize the usability of the web content
and actual functional barriers instead of focusing only on technical
violations of WCAG 2.1 Level AA. Many commenters supported a functional
definition of accessibility that would effectively allow for minor
deviations from the technical standard as long as they do not impact
the ability of people with disabilities to access and benefit from the
web content in question. Some commenters specified that the ability to
access and benefit from the web content in question also requires
consideration of the timeliness, privacy, and independence in accessing
the web content. This method would also result in the possibility that
recipients could be in violation of subpart I if any aspect of their
program or activity provided through web content is inaccessible to a
person with a disability, even if the recipient is fully compliant with
WCAG 2.1 AA. Some commenters stated that all information posted on a
recipient's web content is important so all information, regardless of
whether it limits access to a recipient's program or activity, should
be accessible. Some commenters oppose this method of measuring
compliance because they believe it would be too difficult to enforce.
Response: The Department has considered these comments and believes
a recipient should be able to meet its requirements under this rule
even if the recipient's web content or mobile app does not perfectly
conform to the technical standard set forth in Sec. 84.84.
Accordingly, this final rule adopts Sec. 84.89, which describes a
particular, limited circumstance in which a recipient ``will be deemed
to have met'' the requirements of Sec. 84.84 even though the
recipient's web content or mobile app does not perfectly conform to the
technical standard set forth in Sec. 84.84(b). Section 84.89 will
apply if the recipient can demonstrate that, although it was
technically out of conformance to WCAG 2.1 Level AA, (i.e., fails to
exactly satisfy a success criterion or conformance requirement), the
nonconformance has a minimal impact on access for individuals with
disabilities, as defined in the regulatory text. If a recipient can
make this showing, it will be deemed to have met its obligations under
Sec. 84.84 despite its nonconformance to WCAG 2.1 Level AA.
Section 84.89 does not alter a recipient's general obligations
under this rule, nor is it intended as a blanket justification for a
recipient to avoid conforming to WCAG 2.1 Level AA from the outset.
Rather, Sec. 84.89 is intended to apply in rare circumstances and will
require a detailed analysis of the specific facts surrounding the
impact of each alleged instance of nonconformance. The Department does
not expect or intend that Sec. 84.89 will excuse most nonconformance
to the technical standard. Under Sec. 84.84(b), a recipient must
typically ensure that the web content and mobile apps it ``provides or
makes available, directly or through contractual, licensing, or other
arrangements, comply with Level A and Level AA success criteria and
conformance requirements specified in WCAG 2.1.'' This remains
generally true. However, Sec. 84.89 allows for some minor deviations
from WCAG 2.1 Level AA if specific conditions are met. This will
provide a recipient that discovers that it is out of compliance with
this rule with another means to avoid the potential liability that
could result. Recipients that maintain conformance to WCAG 2.1 Level AA
will not have to rely on Sec. 84.89 to be deemed compliant with this
rule, and full conformance to WCAG 2.1 Level AA is the only definitive
way to guarantee that outcome. However, if a recipient falls out of
conformance in a minimal way or such nonconformance is alleged, a
recipient may be able to use Sec. 84.89 to demonstrate that it has
satisfied its legal obligations. Section 84.89 also does not alter
existing enforcement mechanisms. Individuals can file complaints, and
agencies can conduct investigations and compliance reviews, related to
this rule the same way they would for any other requirement under
section 504.
As the text of the provision indicates, the burden of demonstrating
applicability of Sec. 84.89 is on the recipient. The provision will
only apply ``in the limited circumstance in which the recipient can
demonstrate'' that all of the criteria described in Sec. 84.89 are
satisfied. This section requires the recipient to show that its
nonconformance to WCAG 2.1 Level AA ``has such a minimal impact on
access that it would not affect the ability of individuals with
disabilities to use the recipient's web content or mobile app'' to do
one of the activities enumerated in paragraphs (a) through (d) of Sec.
84.89 in the manner described in Sec. 84.89. If the nonconformance has
affected an individual in the ways outlined in Sec. 84.89 (further
described below), the recipient will not be able to rely on this
[[Page 40161]]
provision. Further, as ``demonstrate'' indicates, the recipient must
provide evidence that all of the criteria described in Sec. 84.89 are
satisfied in order to substantiate its reliance on this provision.
While Sec. 84.89 does not require a particular type of evidence, a
recipient needs to show that, as the text states, its nonconformance
``would not affect'' the experience of individuals with disabilities as
outlined below. Therefore, it would not be sufficient for a recipient
to show only that it has not received any complaints regarding the
nonconformance; nor would it likely be enough if the recipient only
pointed to a few particular individuals with disabilities who were
unaffected by the nonconformance. The recipient must show that the
nonconformance is of a nature that would not affect people whose
disabilities are pertinent to the nonconformance at issue, just as the
analysis under other parts of section 504 regulations depends on the
barrier at issue and the access needs of individuals with disabilities
pertinent to that barrier.\194\ For example, people with hearing or
auditory processing disabilities, among others, have disabilities
pertinent to captioning requirements.
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\194\ Cf., e.g., 45 CFR 84.68(b)(1)(iv), (b)(8), 84.77.
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With respect to the particular criteria that a recipient must
satisfy, Sec. 84.89 describes both what people with disabilities must
be able to use the recipient's web content or mobile apps to do and the
manner in which people with disabilities must be able to do it.
Nonconformance to WCAG 2.1 Level AA must not ``affect the ability of
individuals with disabilities to use the recipient's web content or
mobile app . . . in a manner that provides substantially equivalent
timeliness, privacy, independence, and ease of use'' compared to
individuals without disabilities. Timeliness, privacy, independence,
and ease of use are underscored throughout the ADA framework, as well
as elsewhere in this rule under section 504, as key components of
ensuring equal opportunity for individuals with disabilities to
participate in or benefit from a recipient's programs and activities,
and ``ease of use'' is intended to broadly encompass other aspects of a
user's experience with web content or mobile apps. To successfully rely
on Sec. 84.89, it would not be sufficient for a recipient to
demonstrate merely that its nonconformance would not completely block
people with disabilities from using web content or a mobile app as
described in Sec. 84.89(a) through (d). That is, the term ``would not
affect'' should not be read in isolation from the rest of Sec. 84.89
to suggest that a recipient only needs to show that a particular
objective can be achieved. Rather, a recipient must also demonstrate
that, even though the web content or mobile app does not conform to the
technical standard, the user experience for individuals with
disabilities is substantially equivalent to the experience of
individuals without disabilities.
For example, if a recipient's online health questionnaire does not
conform to WCAG 2.1 Level AA, a person with a manual dexterity
disability may need to spend significantly more time to fill out a
health questionnaire online than someone without a disability. This
person might also need to seek assistance from someone who does not
have a disability, provide personal information to someone else, or
endure a much more cumbersome and frustrating process than a user
without a disability. Even if this person with a disability was
ultimately able to fill out the form online, Sec. 84.89 would not
apply because, under these circumstances, their ability to use the web
content ``in a manner that provides substantially equivalent
timeliness, privacy, independence, and ease of use'' would be affected.
Analysis under this provision is likely to be a fact-intensive
analysis. Of course, a recipient is not responsible for every factor
that might make a task more time-consuming or difficult for a person
with a disability. However, a recipient is responsible for the impact
of its nonconformance to the technical standard set forth in this rule.
The recipient must show that its nonconformance would not affect the
ability of individuals with pertinent disabilities to use the web
content or mobile app in a manner that provides substantially
equivalent timeliness, privacy, independence, and ease of use.
Paragraphs (a) through (d) of Sec. 84.89 describe what people with
disabilities must be able to use the recipient's web content or mobile
apps to do ``in a manner that [is] substantially equivalent [as to]
timeliness, privacy, independence, and ease of use.'' First, under
Sec. 84.89(a), individuals with disabilities must be able to
``[a]ccess the same information as individuals without disabilities.''
This means that people with disabilities can access all the same
information using the web content or mobile app that users without
disabilities are able to access. For example, Sec. 84.89(a) would not
be satisfied if certain web content could not be accessed using a
keyboard because the content was coded in a way that caused the
keyboard to skip over some content. In this example, an individual who
relies on a screen reader would not be able to access the same
information as an individual without a disability because all of the
information could not be selected with their keyboard so that it would
be read aloud by their screen reader. However, Sec. 84.89(a) might be
satisfied if the color contrast ratio for some sections of text is
4.45:1 instead of 4.5:1 as required by WCAG 2.1 Success Criterion
1.4.3.\195\ Similarly, this provision might apply, for example, if the
spacing between English words is only 0.15 times the font size instead
of 0.16 times as required by WCAG 2.1 Success Criterion 1.4.12.\196\
Such slight deviations from the specified requirements are unlikely to
affect the ability of, for example, most people with vision
disabilities to access information that they would be able to access if
the content fully conformed with the technical standard. However, the
recipient must always demonstrate that this element is met with respect
to the specific facts of the nonconformance at issue.
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\195\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1,
Success Criterion 1.4.3 Contrast (Minimum) (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#contrast-minimum [https://perma.cc/4XS3-AX7W].
\196\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1,
Success Criterion 1.4.12 Text Spacing (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#text-spacing [https://perma.cc/B4A5-843F].
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Second, Sec. 84.89(b) states that individuals with disabilities
must be able to ``[e]ngage in the same interactions as individuals
without disabilities.'' This means that people with disabilities can
interact with the web content or mobile app in all of the same ways
that people without disabilities can. For example, Sec. 84.89(b) would
not be satisfied if people with disabilities could not interact with
all of the different components of the web content or mobile app, such
as chat functionality, messaging, calculators, calendars, and search
functions. However, Sec. 84.89(b) might be satisfied if the time limit
for an interaction, such as a chat response, expires at exactly 20
hours, even though Success Criterion 2.2.1,\197\ which generally
requires certain safeguards to prevent time limits from expiring, has
an exception that only applies if the time limit is longer than 20
hours. People with certain types of disabilities, such as cognitive
disabilities, may need more time than people without disabilities to
engage in interactions. A slight deviation in
[[Page 40162]]
timing, especially when the time limit is long and the intended
interaction is brief, is unlikely to affect the ability of people with
these types of disabilities to engage in interactions. Still, the
recipient must always demonstrate that this element is met with respect
to the specific facts of the nonconformance at issue.
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\197\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1,
Success Criterion 2.2.1 Timing Adjustable (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#timing-adjustable [https://perma.cc/V3XZ-KJDG].
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Third, pursuant to Sec. 84.89(c), individuals with disabilities
must be able to ``[c]onduct the same transactions as individuals
without disabilities.'' This means that people with disabilities can
complete all of the same transactions on the web content or mobile app
that people without disabilities can. For example, Sec. 84.89(c) would
not be satisfied if people with disabilities could not submit a form or
process their payment. However, Sec. 84.89(c) would likely be
satisfied if web content does not conform to Success Criterion 4.1.1
about parsing. This Success Criterion requires that information is
coded properly so that technology like browsers and screen readers can
accurately interpret the content and, for instance, deliver that
content to a user correctly so that they can complete a transaction, or
avoid crashing in the middle of the transaction.\198\ However,
according to W3C, this Success Criterion is no longer needed to ensure
accessibility because of improvements in browsers and assistive
technology.\199\ Thus, although conformance to this Success Criterion
is required by WCAG 2.1 Level AA, a failure to conform to this Success
Criterion is unlikely to affect the ability of people with disabilities
to conduct transactions. However, the recipient must always demonstrate
that this element is met with respect to the specific facts of the
nonconformance at issue.
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\198\ W3C, Understanding SC 4.1.1: Parsing (Level A), https://www.w3.org/WAI/WCAG21/Understanding/parsing.html [https://perma.cc/5Z8Q-GW5E] (June 20, 2023).
\199\ W3C, WCAG 2 FAQ (Oct. 5, 2023), https://www.w3.org/WAI/standards-guidelines/wcag/faq/#parsing411 [https://perma.cc/7Q9H-JVSZ]. W3C, WCAG 2 FAQ (Oct. 5, 2023), https://www.w3.org/WAI/standards-guidelines/wcag/faq/#parsing411 [https://perma.cc/7Q9H-JVSZ].
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Fourth, Sec. 84.89(d) requires that individuals with disabilities
must be able to ``[o]therwise participate in or benefit from the same
programs and activities as individuals without disabilities.'' Section
84.89(d) is intended to address anything else within the scope of
section 504 (i.e., any program or activity that cannot fairly be
characterized as accessing information, engaging in an interaction, or
conducting a transaction) for which someone who does not have a
disability could use the recipient's web content or mobile app. Section
84.89(d) should be construed broadly to ensure that the ability of
individuals with disabilities to access or use any part of the
recipient's web content or mobile app that individuals without
disabilities are able to access or use is not affected by
nonconformance to the technical standard.
The Department believes this framework is generally consistent with
the framework of title II of the ADA, with which many recipients will
be familiar, as well as the approach reflected in the Department's
revisions and additions in Sec. Sec. 84.68 and 84.77 of this final
rule to ensure consistency between section 504 and title II of the ADA.
Title II similarly requires covered entities to provide equal
opportunity to participate in or benefit from services; \200\ equal
opportunity to obtain the same result; \201\ full and equal enjoyment
of services, programs, and activities; \202\ and communications with
people with disabilities that are as effective as communications with
others, which includes consideration of timeliness, privacy, and
independence.\203\
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\200\ 28 CFR 35.130(b)(1)(ii), 35.160(b)(1).
\201\ 28 CFR 35.130(b)(1)(iii).
\202\ 28 CFR 35.130(b)(8).
\203\ 28 CFR 35.160.
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The regulatory language codified in Sec. 84.89 is very similar to
language discussed in the NPRM's preamble.\204\ However, the Department
believes it is helpful to explain differences between that discussion
in the NPRM and this final rule. The Department has only made three
substantive changes to the NPRM's relevant language.
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\204\ 88 FR 63392, 63447 (Sept. 14, 2023).
---------------------------------------------------------------------------
First, though the NPRM discussed excusing noncompliance that ``does
not prevent'' equal access, Sec. 84.89 excuses noncompliance that
``would not affect'' such access. The Department was concerned that the
use of ``does not'' could have been incorrectly read to require a
showing that a specific individual did not have substantially
equivalent access to the web content or mobile app. In changing the
language to ``would not,'' the Department clarifies that the threshold
requirements for bringing a challenge to compliance under this subpart
are the same as under any other provision of section 504. Except as
otherwise required by existing law, a rebuttal of a recipient's
invocation of this provision would not need to show that a specific
individual did not have substantially equivalent access to the web
content or mobile app. Rather, the issue would be whether the
nonconformance is the type of barrier that would affect the ability of
people with pertinent disabilities to access the web content or mobile
app in a substantially equivalent manner. Certainly, the revised
standard would encompass a barrier that actually does affect a specific
individual's access, so this revision does not narrow the provision.
Second, the Department originally proposed considering whether
nonconformance ``prevent[s] a person with a disability'' from using the
web content or mobile app, but Sec. 84.89 instead considers whether
nonconformance would ``affect the ability of individuals with
disabilities'' to use the web content or mobile app. This revision is
intended to clarify what a recipient seeking to invoke this provision
needs to demonstrate. The Department explained in the NPRM that the
purpose of this approach was to ``provide equal access to people with
disabilities,'' and limit violations to those that ``affect access.''
\205\ But even when not entirely ``prevent[ed]'' from using web content
or mobile app, an individual with disabilities can still be denied
equal access by impediments falling short of that standard. The
language in the final rule more accurately reflects this reality and
achieves the objective proposed in the NPRM. As explained above, under
the language in the final rule it would not be sufficient for a
recipient to show that its nonconformance would still permit people
with disabilities to use the recipient's web content or mobile app as
described in Sec. 84.89(a) through (d). In other words, someone would
not need to be entirely prevented from using the web content or mobile
app before a recipient could be considered out of compliance. Instead,
the effect of the nonconformance must be considered. This does not mean
that any effect on usability, however slight, is sufficient to prove a
violation. Only nonconformance that would affect the ability of
individuals with disabilities to do the activities in Sec. 84.89(a)
through (d) in a way that provides substantially equivalent timeliness,
privacy, independence, and ease of use would prevent a recipient from
relying on this provision.
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\205\ Id.
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Third, the language proposed in the NPRM considered whether a
person with a disability would have substantially equivalent ``ease of
use.'' The Department believed that timeliness, privacy, and
independence were all components that affected
[[Page 40163]]
whether ease of use was substantially equivalent. Because some
commenters proposed explicitly specifying these factors in addition to
``ease of use,'' the Department is persuaded that these factors warrant
separate inclusion and emphasis as aspects of the user experience that
must be substantially equivalent. This specificity ensures clarity for
recipients, individuals with disabilities, Federal agencies, and courts
about how to analyze an entity's invocation of this provision.
Therefore, the Department has added additional language to clarify that
timeliness, privacy, and independence are all important concepts to
consider when evaluating whether this provision applies. If a person
with a disability would need to take significantly more time to
successfully navigate web content or a mobile app that does not conform
to the technical standard because of the content or app's
nonconformance, that person is not being provided with a substantially
equivalent experience to that of people without disabilities. Requiring
a person with a disability to spend substantially more time to do
something is placing an additional burden on them that is not imposed
on others. Privacy and independence are also crucial components that
can affect whether a person with a disability would be prevented from
having a substantially equivalent experience. Adding this language to
Sec. 84.89 ensures consistency with the effective communication
provision of section 504.\206\ The Department has included timeliness,
privacy, and independence in this provision for clarity and to avoid
unintentionally narrowing what should be a fact-intensive analysis.
However, ``ease of use'' may also encompass other aspects of a user's
experience that are not expressly specified in the regulatory text,
such as safety risks incurred by people with disabilities as a result
of nonconformance.\207\ ``Ease of use'' should be construed broadly to
allow for consideration of other ways in which nonconformance would
make the experience of users with disabilities more difficult or
burdensome than the experience of users without disabilities in
specific scenarios.
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\206\ 45 CFR 84.77.
\207\ See, e.g., W3C, Web Content Accessibility Guidelines
(WCAG) 2.1, Success Criterion 2.3.1. Three Flashes or Below
Threshold (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#three-flashes-or-below-threshold [https://perma.cc/A7P9-WCQY] (addressing aspects of content design that could trigger
seizures or other physical reactions).
---------------------------------------------------------------------------
Regarding comments that recommended a two-part method of measuring
compliance that includes a functional definition of accessibility in
addition to WCAG requirements, the Department is concerned about
imposing additional requirements on recipients. A major benefit of
requiring conformance to WCAG 2.1 Level AA is that if a recipient's web
content and mobile apps fully conform to it, the recipient can be
certain that they are compliant with Sec. 84.84. Adding a functional
accessibility standard beyond WCAG would result in situations where
even if a recipient is 100% in compliance with WCAG 2.1 AA, they may
still be in violation of subpart I if a single person with a disability
is unable to access some portion of their web content or mobile app.
This lack of certainty would prove difficult for recipients and result
in confusion throughout health and human services programs and
activities.
Comment: Some commenters expressed the view that not all instances
of nonconformance to WCAG 2.1 Level AA should be treated equally. Some
stated that there should be higher consequences based on how frequently
accessed the content is, how egregious the violation is, and whether an
issue is inherently more serious.
Response: The Department will investigate all alleged violations of
section 504, including alleged nonconformance to WCAG 2.1 Level AA.
During the investigation process, the Department may choose to pursue
different methods of investigation and remedies depending on the
specifics of the alleged violation, including the impact on people with
disabilities and the importance of the content in question.
Comment: Some commenters stated that isolated or temporary
instances of nonconformance to WCAG 2.1 Level AA should generally not
be treated as violations as long as the recipient in question is not a
repeat offender, they notify the public of the issue, they remediate
the issue in a set period of time, and the issue itself is small.
Response: The Department has considered all of the comments it
received on this issue and, based on the comments and its own
independent assessment, decided not to separately excuse a recipient's
isolated or temporary noncompliance with Sec. 84.84(b) due to
maintenance or repairs in the final rule. Rather, as stated in Sec.
84.89, a recipient's legal responsibility for an isolated or temporary
instance of nonconformance to WCAG 2.1 Level AA will depend on whether
the isolated or temporary instance of nonconformance--as with any other
nonconformance--would affect the ability of individuals with
disabilities to use the recipient's web content or mobile app in a
substantially equivalent way.
The Department believes it is likely that the approach set forth in
Sec. 84.89 reduces the need for a provision that would explicitly
allow for instances of isolated or temporary noncompliance due to
maintenance or repairs, while simultaneously limiting the negative
impact of such a provision on individuals with disabilities. The
Department believes this is true for two reasons.
First, to the extent isolated or temporary noncompliance due to
maintenance or repairs occur that affect web content or mobile apps, it
logically follows from the requirements in Sec. 84.84 that these
interruptions should generally result in the same impact on individuals
with and without disabilities after the compliance date because, in
most cases, all users would be relying on the same content, and so
interruptions to that content would impact all users. From the
compliance date onward, accessible web content and mobile apps and the
web content and mobile apps used by people without disabilities should
be one and the same (with the rare exception of conforming alternate
versions provided for in Sec. 84.86). Therefore, the Department
expects that isolated or temporary noncompliance due to maintenance or
repairs generally will affect the ability of people with disabilities
to use web content or mobile apps to the same extent it will affect the
experience of people without disabilities. For example, if a website is
undergoing overnight maintenance and so an online form is temporarily
unavailable, the form would already conform to WCAG 2.1 Level AA, and
so there would be no separate feature or form for individuals with
disabilities that would be affected while a form for people without
disabilities is functioning. In such a scenario, individuals with and
without disabilities would both be unable to access web content, such
that there would be no violation of this rule.
Thus, the Department believes that a specific provision regarding
isolated or temporary noncompliance due to maintenance or repairs is
less necessary than it is for physical access. When there is
maintenance to a feature that provides physical access, such as a
broken elevator, access for people with disabilities is particularly
impacted. In contrast, when there is maintenance to web content or
mobile apps, people with and without disabilities will generally both
be denied access, such
[[Page 40164]]
that no one is denied access on the basis of disability.
Second, even to the extent isolated or temporary noncompliance due
to maintenance or repairs affects only an accessibility feature, that
noncompliance may fit the parameters laid out in Sec. 84.89 such that
a recipient will be deemed to have complied with its obligations under
the rule. Section 84.89 does not provide a blanket limitation that
would excuse all isolated or temporary noncompliance due to maintenance
or repairs, however. The provision's applicability would depend on the
particular circumstances of the interruption and its impact on people
with disabilities. It is possible that an interruption that only
affects an accessibility feature will not satisfy the elements of Sec.
84.89 and a recipient will not be deemed in compliance with Sec.
84.84. Even one temporary or isolated instance of nonconformance could
affect the ability of individuals with disabilities to use the web
content with substantially equivalent ease of use, depending on the
circumstances. As discussed above, this will necessarily be a fact-
specific analysis.
In addition to being less necessary than in the physical access
context, the Department also believes a specific provision regarding
isolated or temporary interruptions due to maintenance or repairs would
have more detrimental incentives in the digital space by discouraging
recipients from adopting practices that would reduce or avert the
disruptions caused by maintenance and repair that affect accessibility.
Isolated or temporary noncompliance due to maintenance or repairs of
features that provide physical access would be necessary regardless of
what practices recipients put in place,\208\ and the repairs and
maintenance to those features often cannot be done without interrupting
access specifically for individuals with disabilities. For example,
curb ramps will need to be repaved and elevators will need to be
repaired because physical materials break down. In contrast, the
Department believes that, despite the dynamic nature of web content and
mobile apps, incorporating accessible design principles and best
practices will generally enable recipients to anticipate and avoid many
instances of isolated or temporary noncompliance due to maintenance or
repairs--including many isolated or temporary instances of
noncompliance that would have such a significant impact that they would
affect people with disabilities' ability to use web content or mobile
apps in a substantially equivalent way. Some of these best practices,
such as regular accessibility testing and remediation, would likely be
needed for recipients to comply with subpart I regardless of whether
the Department incorporated a provision regarding isolated or temporary
interruptions. And practices like testing content before it is made
available will frequently allow maintenance and repairs that affect
accessibility to occur without interrupting access, in a way that is
often impossible in physical spaces. The Department declines to adopt a
limitation for isolated or temporary interruptions due to maintenance
or repairs. Such a limitation may disincentivize recipients from
implementing processes that could prevent many interruptions from
affecting substantially equivalent access.
---------------------------------------------------------------------------
\208\ See 28 CFR part 35, appendix B at 705 (``It is, of course,
impossible to guarantee that mechanical devices will never fail to
operate.'')
---------------------------------------------------------------------------
Comment: Commenters mentioned specific laws or policies used by
States, including California and Texas, which require covered entities
to post certification of their sites' accessibility and submit to
testing by the state comptroller, respectively. Some commenters pointed
to different technical standards instead.
Response: The Department has considered many States' approaches to
assessing compliance with their web accessibility laws \209\ and
declines to adopt these laws at the Federal level. State laws like
those in Florida, Illinois, and Massachusetts, which do not specify how
compliance will be measured or how entities can demonstrate compliance,
are essentially requiring 100 percent compliance with a technical
standard. This approach is not feasible for the reasons discussed
earlier in this section. In addition, this approach is not feasible
because of the large number and wide variety of recipients covered by
section 504, as compared with the relatively limited number of State
agencies in a given State. Laws like California's, which require
entities covered by California's law to certify or post evidence of
compliance, would impose administrative burdens on recipients similar
to those imposed by the international approaches discussed below. Some
State agencies, including in California, Minnesota, and Texas, have
developed assessment checklists, trainings, testing tools, and other
resources. The Department may also provide further guidance about best
practices for a recipient to meet its obligations under this rule.
However, such resources are not substitutes for clear and achievable
regulatory requirements. Some commenters stated that regulations should
not be combined with best practices or guidance, and further stated
that testing methodologies are more appropriate for guidance. The
Department agrees and believes recipients are best suited to determine
how they will comply with the technical standard, depending on their
needs and resources.
---------------------------------------------------------------------------
\209\ 88 FR 63392, 63445-46 (Sept. 14, 2023).
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The Department also declines to adopt a model like the one used in
Texas, which requires State agencies to, among other steps, 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.\210\ This approach is one
way recipients may choose to ensure that they comply with this rule.
However, as noted above when discussing the policy-based approach, the
Department is unable to calibrate requirements that provide sufficient
predictability and certainty for every recipient while maintaining
sufficient flexibility. The Department declines to adopt an approach
like Texas's for the same reasons it declined to adopt a policy-based
approach.
---------------------------------------------------------------------------
\210\ 1 Tex. Admin. Code 206.50, 213.21; Tex. Dep't of Info.
Res., EIR Accessibility Tools & Training, https://dir.texas.gov/electronic-information-resources-eir-accessibility/eir-accessibility-tools-training [https://perma.cc/A5LC-ZTST].
---------------------------------------------------------------------------
The Department has also determined that other specific
international approaches to evaluating compliance with web
accessibility laws are currently not feasible to adopt in the United
States.\211\ The methodologies used by the European Union and Canada
require reporting to government agencies.\212\ This would pose
counterproductive logistical and administrative difficulties for
recipients and the Department. The Department believes that the
resources recipients would need to spend on data collection and
reporting would detract from efforts to increase the accessibility of
web content and mobile apps. New
[[Page 40165]]
Zealand's approach,\213\ which requires testing and remediation, is
similar to the policy-based approach already discussed in this section,
and the Department declines to adopt that approach for the reasons
stated above. The approach taken in the United Kingdom, where a
government agency audits websites and mobile apps, sends a report to
the entity, and requires the entity to fix accessibility issues,\214\
would raise similar logistical and administrative difficulties for
recipients and the Department. Though the Department will continue to
investigate complaints and enforce the section 504, given constraints
on its resources and the large number of recipients within its purview
to investigate, the Department is unable to guarantee that it will
conduct a specific amount of enforcement under this rule on a
particular schedule.
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\211\ See 88 FR 51948, 51980 (Aug. 4, 2023) (explaining existing
methods for measuring compliance in Canada, the European Union, New
Zealand, and the United Kingdom).
\212\ Commission Implementing Decision (EU) 2018/1524 (Dec. 10,
2018), https://eurlex.europa.eu/eli/dec_impl/2018/1524/oj [https://perma.cc/5M7B-SVP9]; Government of Canada, Standard on Web
Accessibility (Aug. 1, 2011), https://www.tbssct.gc.ca/pol/doc-eng.aspx?id=23601§ion=html [https://perma.cc/ZU5D-CPQ7].
\213\ New Zealand Government, 2017 Web Standards Self-
Assessments Report (July 2018), https://www.digital.govt.nz/dmsdocument/97-2017-web-standards-self-assessments-report/html
[https://perma.cc/3TQ3-2L9L]; New Zealand Government, Web Standards
Risk Assessment (Oct. 19, 2020), https://www.digital.govt.nz/standardsand-guidance/nz-government-web-standards/riskassessment/
[https://perma.cc/N3GJ-VK7X]; New Zealand Government, About the Web
Accessibility Standard (Mar. 3, 2022), https://www.digital.govt.nz/standards-and-guidance/nzgovernment-web-standards/web-accessibilitystandard-1-1/about-2/ [https://perma.cc/GPR4-QJ29].
\214\ United Kingdom, Understanding accessibility requirements
for public sector bodies (Aug. 22, 2022), https://www.gov.uk/guidance/accessibilityrequirements-for-public-sector-websites-and-apps; United Kingdom, Public sector website and mobile application
accessibility monitoring (Nov. 1, 2022), https://www.gov.uk/guidance/public-sector-websiteand-mobile-application-accessibility-monitoring.
---------------------------------------------------------------------------
Given the number of recipients, the wide range in their uses of web
content and mobile apps, and the Department's existing compliance
activities, such arrangements would not be logistically feasible for
section 504. Laws that require 100% conformance to WCAG are not
feasible for section 504 for the reasons mentioned above. Laws that
establish a single accessibility policy would not allow the hundreds of
thousands of HHS recipients sufficient flexibility to determine how to
ensure their web content and mobile apps comply with section 504.
Summary of Regulatory Changes
For the reasons set forth above and considering the comments
received, we are editing Sec. 84.89 to formalize a method for
measuring compliance. Specifically, we are finalizing a method of
measuring compliance where a recipient that is not fully in compliance
with Sec. 84.84(b) will be deemed to have met the requirements of
Sec. 84.84 if the recipient can demonstrate that the noncompliance has
a minimal impact on access. Whether the noncompliance has minimal
impact on access depends on whether the noncompliance would not affect
the ability of individuals with disabilities to access the same
information, engage in the same interactions, conduct the same
transactions, and otherwise participate in or benefit from the same
programs and activities with substantially equivalent timeliness,
privacy, independence, and ease of use.
Accessible Medical Equipment (Subpart J)
Subpart J addresses requirements related to providing accessible
medical equipment for people with disabilities.
Application (Sec. 84.90)
Proposed Sec. 84.90 stated that this subpart would apply to
programs or activities that receive Federal Financial assistance and
recipients that operate, or receive Federal financial assistance from
the operation of, such programs or activities.
We received no comments on Sec. 84.90.
Summary of Regulatory Changes
The Department is finalizing Sec. 84.90 as proposed with no
modifications.
Requirements for Medical Diagnostic Equipment (Sec. 84.91)
Proposed Sec. 84.91 contained a general requirement that no
individual with a disability shall be excluded from or denied the
benefits of a program or activity of a recipient offered through MDE
due to the inaccessibility of the recipient's MDE.
The comments and our responses regarding Sec. 84.91 are set forth
below.
Comment: Almost all commenters supported requiring recipients to
ensure the availability of accessible MDE for health equity and access
to needed care for people with disabilities. A wide array of
stakeholders including disability rights advocates and organizations,
individuals with disabilities, civil rights, faith-based, and
reproductive rights advocacy groups, as well as medical providers,
researchers, State and local jurisdictions, and public health groups
all expressed support for incorporating the Access Board's MDE
standards into this section 504 regulation.
Response: The Department agrees with commenters that accessible MDE
is vital for health equity, person-centered care, and access to care
for patients with disabilities. The support for providing accessible
care comes from a variety of commenters and recipient groups including
physicians, nurses, allied professions, hospital associations, medical
suppliers, and others. As discussed in the preamble to our NPRM,
researchers have demonstrated and documented that the scarcity of
accessible MDE constitutes a significant barrier to access to care for
patients with disabilities, resulting in a lack of preventative care
and diagnostic exams, while contributing to poorer health outcomes and
lower life expectancies. The Department hopes that implementation of
this final rule will make a tangible difference.
Comment: Many commenters described the importance of accessible MDE
and provided firsthand accounts of instances where they were unable to
receive health care or received substandard care because recipients did
not utilize accessible exam tables, scales, radiological or other
diagnostic equipment. Commenters recounted instances when they were
unable to receive prostate exams, mammograms, or skin biopsies or when
they received incomplete physical exams because they could not transfer
to an exam table. Other commenters noted that they could not have their
weight checked regularly because of the lack of an accessible weight
scale resulting in an inability to document unexpected weight loss or
to track a child's weight and growth over time. Some commenters
described recipients' expectations that individuals with mobility
disabilities would be accompanied by companions to physically transfer
them onto MDE. Some disability advocacy groups shared representative
accounts submitted by a number of people documenting the harms
experienced by people with disabilities due to recipients who lacked
accessible MDE.
Response: The Department is aware of many instances where people
with disabilities were denied access to needed care, subjected to
demeaning situations, or received substandard care because recipients
did not utilize accessible exam tables, weight scales, radiological, or
other diagnostic equipment. OCR has taken action to enforce section 504
as it applies to medical care. However, the lack of standards for
accessible MDE before the Access Board completed its standards in early
2017, the lack of scoping and rulemaking to make these standards
enforceable for recipients, and modest voluntary adoption of accessible
MDE by health care providers mean that these circumstances remain all
too prevalent. This rulemaking and its effective date will be turning
points in ensuring improved access to diagnostic services
[[Page 40166]]
for people with disabilities. Because many people with disabilities are
unable to receive even basic health care services as a result of
inaccessible exam tables and weight scales, and because many health
care providers, including primary care physicians, use exam tables and
weight scales and the equipment is relatively inexpensive compared to
other accessible MDE such as imaging equipment, the Department decided
to add a specific requirement for exam tables and weight scales at
Sec. 84.92(c). At a minimum, recipients must acquire one accessible
exam table, if they use exam tables, and one accessible weight scale,
if they use weight scales, within two years. The Department decided on
a two-year time period because it believes that is a sufficient period
for most recipients to budget for and acquire accessible exam tables
and weight scales. Some commenters were concerned that two years would
be too long considering the availability and affordability of
accessible exam tables and weight scales measured against the negative
health outcomes experienced by people with disabilities when waiting
for recipients to acquire accessible MDE, but the Department recognizes
recipients will need some time to acquire accessible exam tables and
weight scales. This requirement will help address the specific denials
of service raised by commenters relating to the inaccessibility of exam
tables and weight scales, and ensure that regardless of recipient size,
as long as recipients use at least one exam table or weight scale,
patients will have access to accessible exam tables and weight scales.
The Department also chose to specify exam tables and weight scales
because exam tables and weight scales that meet the MDE Standards are
already available on the open market and are less expensive than some
other available accessible MDE, such as imaging equipment.\215\
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\215\ See, e.g., 82 FR 2810, 2829 (Jan. 9, 2017) (stating that
commenters were concerned about immediate compliance with the MDE
Standards for ``more expensive imaging equipment'' compared to other
accessible MDE). See also 2024 Mammography Price Guide, Block
Imaging, https://www.blockimaging.com/bid/95356/digital-mammography-equipment-price-cost-info (last visited Feb. 20, 2024).
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Comment: A few medical provider groups expressed concerns about the
extension of responsibility for these provisions to facilities not
directly controlled by the section 504 covered recipient, giving an
example of an emergency department boarding patients for other
departments when inpatient beds or appropriate transfers are
unavailable. These groups sought clarification of whether accessible
MDE responsibilities will apply in these cases and requested a
collaborative approach with the Department rather than being held
accountable for decisions beyond their control, and consideration when
complying with these requirements would result in undue burden.
Response: Since its publication in 1977, the Department's section
504 regulations have applied to recipients of Federal financial
assistance from the Department. This rulemaking does not change the
recipients covered by section 504. This rulemaking applies to each
recipient and to the program or activity that receives such assistance.
In the unlikely circumstance that a health care provider that receives
financial assistance from the Department uses the facilities of a
health care provider that does not accept financial assistance from the
Department, the recipient is still required to comply with section 504
and all other appropriate Federal civil rights laws. Section
84.68(b)(1)(i) in the general prohibitions against discrimination
section states that a recipient, in providing any aid, benefit, or
service, may not, directly or through contractual, licensing, or other
arrangement deny a qualified individual the opportunity to participate
in or benefit from the aid, benefit, or service that is not equal to
that afforded others. Paragraphs (b)(1)(ii) through (vii) list other
types of discrimination prohibited by recipients whether directly or
through contractual, licensing, or other arrangements.
Summary of Regulatory Changes
For the reasons set forth above and considering the comments
received, we are finalizing Sec. 84.91 as proposed with no
modifications.
Newly Purchased, Leased, or Otherwise Acquired Medical Diagnostic
Equipment (Sec. 84.92)
Proposed Sec. 84.92(a) required that all MDE that recipients
acquire more than 60 days after final publication of this rule must
meet the Standards for Accessible MDE until the recipient satisfies
scoping requirements in Sec. 84.92(b). Proposed Sec. 84.92(b)
contained specific scoping requirements for accessible MDE ranging from
10% to 20% of all MDE based on facility specialty or purpose. We
invited comment on the following questions:
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.
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.
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).
We proposed in Sec. 84.92(c) to require recipients that use exam
tables must acquire at least one accessible exam table within two years
of the final publication of this rule. We proposed the same requirement
for recipients that use weight scales. As noted above, we decided that
accessible exam tables and
[[Page 40167]]
weight scales should be included in this requirement because many
primary care health care providers use them for a range of basic
diagnostic services. Additionally, accessible exam tables and weight
scales are available on the open market and more affordable when
compared to other accessible MDE, such as imaging equipment.\216\
Finally, we proposed a two year time period to acquire an accessible
exam table and accessible weight scale because while that MDE is
currently available, we understand that some recipients may need
additional time to budget for and acquire it. We did not propose a
longer time period because, as commenters note below, the inability to
receive even basic health care services because of inaccessible exam
tables and weight scales results in negative health outcomes for people
with disabilities. We invited comment on the following questions:
---------------------------------------------------------------------------
\216\ See U.S. Access Board, Access Board Review of MDE Low
Height and MSRP, (May 23, 2023), https://www.regulations.gov/document/ATBCB-2023-0001-0002 (listing available exam table models
that meet the height requirements of the MDE Standards, and their
retail prices). Additionally, based on conversations with
recipients, Federal partners, and advocacy organizations, and as
supported in the comments received, accessible weight scales are
more prevalent and affordable than accessible exam tables. On the
affordability of accessible exam tables and weight scales compared
to imaging equipment, see 82 FR 2810, 2829 (Jan. 9, 2017) (stating
that commenters were concerned about immediate compliance with the
MDE Standards for ``more expensive imaging equipment'' compared to
other accessible MDE). See also 2024 Mammography Price Guide, Block
Imaging, https://www.blockimaging.com/bid/95356/digital-mammography-equipment-price-cost-info (last visited Feb. 20, 2024).
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MDE Question 8: The Department seeks public comment on the
potential impact of the requirement of paragraph (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.
We proposed in Sec. 84.92(d) to make clear that recipients may use
alternative standards to those required by the Standards for Accessible
MDE as long as the alternative standards result in substantially
equivalent or greater accessibility and usability.
We proposed in Sec. 84.92(e) to provide that this section would
not require a recipient to take actions that would result in a
fundamental alteration in the nature of a program or activity, or in
undue financial and administrative burdens, while providing additional
clarity on claiming these exceptions.
We proposed in Sec. 84.92(f) to provide that recipients could
prove that compliance with Sec. 84.92(a) or (c) would be a fundamental
alteration if compliance would alter diagnostically required structural
or operational characteristics of the equipment, and prevent the use of
the equipment for its intended diagnostic purpose.
The comments and our responses to Sec. 84.92 are set forth below.
Comment: Most recipient organizations acknowledged the need to
provide accessible MDE to people with disabilities and generally
supported the accessible MDE provisions with scoping as proposed in the
NPRM. Many recipient organizations expressed appreciation of the
Department's measured approach and expressed support for provisions
offering providers flexible approaches to compliance, particularly for
small provider organizations with fewer than fifteen employees and the
proposals at Sec. 84.22(c) for existing facilities allowing
alternative compliance schemes. A minority of groups representing
physician, dental, hospital and insurance providers expressed concerns
with costs for small recipients and requested longer phase-in periods,
extensions for small recipients if recent MDE purchases had been made,
or in some cases, requiring all new purchases to be accessible MDE as
opposed to requiring that practices have a minimum number or percentage
of accessible equipment. A number of health care provider groups
requested technical or financial assistance in support of their efforts
to come into compliance.
Response: The Department appreciates provider groups' recognition
of the importance of these provisions for people with disabilities, as
well as their support for the nuanced approach the Department is taking
with scoping. The Department declines to extend the phase-in period,
offer extensions for small practices which recently procured MDE, or to
only require newly purchased equipment to be accessible at this time.
This is because the health disparities and barriers to access-to-care
people with disabilities are facing are urgent \217\ and extending
phase-in periods will extend the time that they must wait for necessary
services. Many people with disabilities have been urging the Department
to make the MDE Standards mandatory since the Access Board issued them
in 2017. Additionally, recipients have had considerable notice that
these standards were under development, given that the ACA, enacted in
2010, directed the Access Board to promulgate standards for MDE.\218\
Recipients were also on notice since the Access Board issued the MDE
Standards in 2017 that enforcing agencies might make the standards
enforceable.\219\
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\217\ See CB Steele et al., Prevalence of Cancer Screening Among
Adults With Disabilities, United States, 2013, 14 Preventing Chronic
Disease (Jan. 2017), https://www.cdc.gov/pcd/issues/2017/16_0312.htm
(finding disparate access to cancer screenings); Gloria Krahn,
Persons with Disabilities as an Unrecognized Health Disparity
Population, 105 Amer. J. Public Health 198 (Apr. 2015), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4355692/ (finding higher
prevalence of obesity and cardiovascular diseases). See also Michael
Karpman et al., Urban institute Health Policy Center, QuickTake:
Even with Coverage, Many Adults Have Problems Getting Health Care,
with Problems Most Prevalent among Adults with Disabilities, (Sept.
2015), https://apps.urban.org/features/hrms/quicktakes/Many-Adults-
Have-Problems-Getting-Health-
Care.html#:~:text=Adults%20with%20disabilities%20were%20also,to%20get
%20to%20a%20doctor's; Henning Smith, Delayed and Unmet Need for
Medical Care Among Publicly Insured Adults with Disabilities, 51
Medical Care 1015, (Nov. 2013), https://pubmed.ncbi.nlm.nih.gov/24113815/; Amanda Reichard et al, Prevalence and Reasons for
Delaying and Foregoing Necessary Care by the Presence and Type of
Disability Among Working-age Adults, 10 Disability and Health J. 39,
(Jan. 2017), https://pubmed.ncbi.nlm.nih.gov/27771217/; Michelle
Stransky et al., Provider Continuity and Reasons for not Having a
Provider Among Persons With and Without Disabilities, 12 Disability
and Health J. 131, (Jan. 2019), https://pubmed.ncbi.nlm.nih.gov/30244847/; Sarah Bauer et al., Disability and Physical and
Communication-related Barriers to Health Care Related Services Among
Florida Residents: A Brief Report, 9 Disability and Health J. 552,
(July 2016), https://pubmed.ncbi.nlm.nih.gov/27101882/ (finding
barriers to access to care).
\218\ Section 4203 of the Affordable Care Act, 42 U.S.C. 18001
et seq., amending the Rehabilitation Act to add section 510, 29
U.S.C. 794f.
\219\ 82 FR 2810 (explaining that ``other agencies, referred to
as enforcing authorities in the MDE Standards, may issue regulations
or adopt policies that require health care providers subject to
their jurisdiction to acquire accessible medical diagnostic
equipment that complies with the MDE Standards'').
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Finally, with the defenses of fundamental alteration and undue
burden, this regulation already includes a carefully calibrated balance
of interests to account for the burden on smaller recipients.
Comment: Many disability advocates, disability rights advocacy
organizations, a member of Congress, and some State and local
jurisdictions voiced concerns that the proposed scoping provisions were
inadequate to meet demand among people with mobility disabilities. Many
commenters dismissed using parking space percentages, which assume
time-limited use of designated slots, as an inappropriate model for MDE
scoping for facilities providing medical services
[[Page 40168]]
frequented by a growing population of patients with disabilities.
Without a larger percentage or all equipment being accessible, they
asserted that patients with disabilities will have fewer scheduling
options than their nondisabled counterparts. Instead, some commenters
suggested using standards now applied to transportation retrofits.
Many commenters felt that 10% and 20% were inadequate percentages
for accessible MDE because of demographic trends and the belief that
accessible MDE would be considerably more in demand than parking
spaces, especially since nondisabled drivers often drive their
relatives with disabilities to these facilities, while those who need
accessible MDE can only utilize the accessible equipment. Those
commenters either proposed higher percentage thresholds for compliance,
such as 20% and 40%, or that facilities require all newly purchased and
leased MDE to be accessible. Some commenters also noted that the cost
difference between accessible and inaccessible scales is negligible, so
thresholds for scales could be instituted in a shorter time frame. An
individual with disabilities objected to having to wait two more years
for accessible MDE after they already waited 50 years from the adoption
of section 504 and warned that an additional two-year waiting period
would put the health of some people with disabilities at risk and even
result in untimely deaths. An independent Federal agency charged with
advising the President, Congress, and other Federal agencies on
policies, programs, practices, and procedures that affect people with
disabilities also objected to the two-year implementation timeline,
recommending instead one year for exam tables and 120 days for scales.
A commenter from the health advocacy field noted the absence of
timelines for accessible MDE beyond scales and medical exam tables and
requested the Department set an outer limit for compliance with these
provisions at two years.
While several disability commenters opposed varying percentage
requirements for different covered entities because of the difficulties
in identifying which specialties are most vital to people with
disabilities, others supported higher requirements for facilities whose
patient census includes large numbers of people with mobility
disabilities.
Response: The Department appreciates the concerns of commenters
seeking more stringent scoping and recognizes that the needs for
accessible parking are not perfectly aligned with the needs
underpinning accessible MDE. While parking spaces and MDE are not used
in the exact same manner and may not be used with the same consistency,
the limited use of MDE is analogous to the use of parking spaces at a
rehabilitation facility because, as with parking spaces, multiple
patients with mobility disabilities could use the same piece of MDE in
a day. Additionally, the use of MDE is not analogous to the use of
vehicles covered by transportation regulations, which address a
transportation system, rather than the accessibility of individual
units of equipment, as under this rule.\220\ Weight scales and exam
tables also typically cannot be retrofitted to be accessible with the
same ease or cost ratio compared to acquiring accessible MDE.
Inaccessible weight scales typically do not have large platforms that
are required for wheelchair access. Inaccessible exam tables are
usually fixed height ``box'' tables with static bases, and possibly
drawers, that are not easily or cheaply replaced with adjustable
mechanisms.\221\
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\220\ 49 CFR part 37.
\221\ ADA National Network, Accessible Medical Examination
Tables and Chairs, https://adata.org/factsheet/accessible-medical-examination-tables-and-chairs (last visited March 1. 2024).
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Section 84.91 states that recipients may not exclude, deny benefits
to, or otherwise discriminate against people with disabilities in
programs or activities that use MDE. Additionally, Sec. 84.93 requires
that each program or activity that uses MDE be readily accessible to
and usable by people with disabilities in its entirety independent of
the scoping requirements for newly acquired MDE set forth in Sec.
84.92. Acquiring additional accessible MDE is one method to ensure that
recipients do not exclude, deny benefits to, or otherwise discriminate
against people with disabilities in programs or activities that use
MDE, but it is not the only method. If a recipient denies a physical
exam to a patient with a disability before the recipient is required to
have an accessible exam table, they may still violate the other
provisions of section 504.
As noted above, the Department imposed specific requirements for
exam tables and weight scales because of their ubiquity among primary
care providers, their importance for basic diagnostic health services,
and their relative attainability compared to more expensive accessible
imaging equipment.\222\ We did not propose a longer time period because
the inability to receive even basic health care services because of
inaccessible exam tables and weight scales results in negative health
outcomes for people with disabilities. Additionally, we did not propose
a shorter time period because we recognize that some recipients,
especially small recipients with fewer resources, will need sufficient
time to budget for and acquire accessible exam tables and weight
scales.
---------------------------------------------------------------------------
\222\ See U.S. Access Board, Access Board Review of MDE Low
Height and MSRP (May 23, 2023), https://www.regulations.gov/document/ATBCB-2023-0001-0002 (listing available exam table models
that meet the height requirements of the MDE Standards, and their
retail prices). On the affordability of accessible exam tables and
weight scales compared to imaging equipment, see 82 FR 2810, 2829
(Jan. 9, 2017) (stating that commenters were concerned about
immediate compliance with the MDE Standards for ``more expensive
imaging equipment'' compared to other accessible MDE). See also 2024
Mammography Price Guide, Block Imaging, https://www.blockimaging.com/bid/95356/digital-mammography-equipment-price-cost-info (last visited Feb. 20, 2024).
---------------------------------------------------------------------------
Recipients that provide services that rely on other MDE are still
required to provide those services to patients with disabilities, but
section 504 will not require those recipients to acquire other
accessible MDE (unless the requirements for all newly purchased,
leased, or otherwise acquired MDE set forth in Sec. 84.92(a) apply) if
they are able to make their programs and activities accessible through
other means.
In view of demands on recipients, particularly small practices and
rural facilities, the Department will not require all newly acquired
MDE, beyond the requirements set forth in Sec. 84.92, to be accessible
at this time or shorten the two-year implementation timeline. The
utility of additional pieces of accessible MDE may be limited, given
that multiple patients with mobility disabilities can use the same
accessible MDE. Additionally, many recipients are small entities that
only use a small amount of MDE. This means that regardless of whether
the scoping requirement is 10%, 20%, or even 40%, many recipients would
only be required to acquire one piece of accessible MDE.\223\
---------------------------------------------------------------------------
\223\ Tables 18 and 19 of the Regulatory Impact Analysis provide
estimates for the numbers of employees and accessible MDE that
recipients will acquire in response to this rulemaking.
---------------------------------------------------------------------------
While the Department will not increase the scoping requirements of
proposed Sec. 84.92, recipients may determine that the most effective
method to comply with the program access obligation set forth in Sec.
84.93 will be to acquire additional accessible MDE beyond that required
by Sec. 84.92. In addition, the nondiscrimination provisions in
Sec. Sec. 84.68(a) and 84.91 continue to apply.
Comment: A few commenters suggested different scoping
[[Page 40169]]
requirements to reflect the omission of higher weight patients from the
Standards for Accessible MDE by adding higher capacity equipment.
Response: The Department is not in a position to use scoping to
address omissions from the MDE Standards developed by the Access Board
as a part of this final rule.\224\ However, these comments will be
noted and relayed to the Access Board.
---------------------------------------------------------------------------
\224\ The Rehabilitation Act, as amended by the ACA, directed
the Access Board to promulgate technical standards for accessible
MDE. 29 U.S.C. 794f. The Access Board's MDE Standards are not
binding unless they are adopted by an enforcement agency such as HHS
or DOJ. HHS is one of the 12 Federal agencies that are on the Access
Board. The Access Board is the agency that can update its standards
and HHS, as a member of the Board, participates in issuing updates
to those standards. While HHS or another enforcement agency can
establish scoping requirements if they adopt the Access Board's
standards, neither HHS nor any other Federal agency can amend the
Access Board's standards on its own.
---------------------------------------------------------------------------
Comment: Some commenters asked whether MDE or medical treatment
equipment used in home settings is covered under this rulemaking. Some
commenters made the assumption that such equipment was covered.
Although some commenters supported such application as urgently needed,
others cautioned that it could add unforeseen burden to recipients or
even impede access to home-based care.
Response: The obligations set forth in this rule apply to
``program[s] or activit[ies] offered through or with the use of MDE,''
and are subject to the limitations set forth in the rule, including the
undue burden limitation. Whether recipients would need to ensure that
MDE used in the provision of health care programs or activities in home
settings complied with the MDE Standards would depend on the particular
factual circumstances. Regarding the comments about the application of
this rule to medical treatment equipment, while the Department inquired
about application of these standards to non-diagnostic equipment as a
part of MDE Question 14 for future consideration, the MDE Standards are
not being applied to non-diagnostic equipment at this time. Any
extension of the MDE Standards or new standards will result from the
work of and future standards set by the Access Board, and the
Department will relay this information to the Access Board for future
consideration.
Comment: Many comments on the Department's proposed dispersion
requirements to give larger covered entities flexibility in how they
comply with subpart J requirements at Sec. 84.92(b)(3) stated that it
is not logistically feasible to share MDE across medical departments.
Many disability advocates and public health groups expressed concern
that the proposed rule would lead to incomplete or partial
accessibility. Without additional safeguards, these groups worry there
would be scheduling and logistical issues for providers and patients
alike, leading to untimely access to necessary care, and commenters
suggested additional statutory requirements or IT infrastructure would
be needed to coordinate availability of accessible MDE. Some groups
noted that some MDE isn't sufficiently portable to support the flexible
compliance scheme the Department envisioned, particularly if equipment
is being shared beyond one floor, building, or campus. A State
cautioned that the experience of trying to serve at-risk populations
with scarce resources during COVID-19 could prove instructive in
anticipating the challenges medical facilities would have providing
accessible MDE to considerable numbers of people with mobility
disabilities. Further, commenters stressed that strategies to achieve
compliance that rely on patients travelling between remote campuses are
infeasible for the many people with mobility disabilities who may lack
ready access to transportation. Alternatively, some provider groups
expressed appreciation for a flexible approach to problem-solving and
meeting patients' needs.
Response: The Department appreciates the comments on its proposed
dispersion requirements. This provision does not require exact
mathematical proportionality, which at times would be impossible. The
Department agrees that there may be situations where a recipient with
multiple departments, clinics, or specialties will not be able to
simply disperse its accessible MDE proportionally across all
departments, clinics, or specialties. If a recipient requires a patient
with a disability who requires accessible MDE to use the MDE of another
department, the recipient must ensure that the accessible MDE is
readily accessible to and usable by the patient. Factors to consider in
determining whether this standard has been met may include, among other
things, whether the MDE is readily available and not a significant
distance from where the patient is seeking care; whether changing
locations during the patient visit significantly increases wait times;
whether the patient is required to be undressed or partially dressed to
use the MDE (if, for example, the patient has to go to a different part
of the same building to use the accessible MDE); and whether the
recipient provides assistance moving between locations. This means that
some of the situations commenters described, including going to a
separate campus or building to use a recipient's accessible MDE, could
result in the recipient's program or activity not being readily
accessible to and usable by patients with disabilities as required by
Sec. 84.93(a). Recipients must ensure that the dispersal of their
accessible MDE does not discriminate against people with disabilities.
The Department also recognizes there may be situations where small
recipients with a limited number of departments, clinics, or
specialties in the same building may have one piece of accessible MDE
that is shared among all departments, clinics, or specialties in a
manner that provides access for all patients with disabilities who
require access to the accessible MDE. The Department recommends as a
best practice that where a recipient in a large facility with many
departments, clinics, or specialties uses MDE, recipients have at least
one piece of accessible MDE in each department, clinic, or specialty to
limit instances where patients with disabilities must traverse between
departments, clinics, or specialties for care.
Comment: The Department received many comments with suggestions for
alternative requirements or methods for the placement of accessible
MDE. Many disability and public health group commenters supported the
alternative of requiring at least one exam table and scale per
department, as a minimum, utilizing dispersion only as an interim
measure. One commenter requested further clarity on how rules would
apply to facilities with multiple non-adjacent campuses. Other
disability organizations suggested requiring facilities to provide
accessible transportation between facilities at no cost to the patient
if necessary to secure timely access to MDE, or providing access to MDE
via home visits. Similarly, one public health foundation expressed
concern the NPRM did not recognize the burden imposed on people with
disabilities of having to travel further or wait longer to access MDE.
By contrast, many provider groups expressed concern about the cost and
burden of more prescriptive approaches including one exam table and
scale for each component of a medical facility.
Response: As noted in the Department's response above, recipients
are encouraged to obtain at least one piece of accessible MDE for each
department that uses that MDE. However, due to the varying sizes,
[[Page 40170]]
patient populations, and circumstances of different recipients, the
Department recognizes that recipients in large facilities with multiple
departments will not necessarily have to obtain at least one piece of
accessible MDE for each of its departments.
Situations where a recipient has multiple campuses and requires a
patient who requires accessible MDE to go to different campuses for
services from the same department due to the distribution of accessible
MDE may constitute violations of Sec. 84.92(b)(3) if the recipient's
MDE is not readily accessible to or usable by persons with
disabilities. In such situations, however, the recipient may be able to
take other measures to ensure that its programs and activities are
readily accessible to and usable by the patient. For example, it could
offer home visits that provide equal access to care or accessible
transportation to the patient with a disability at no cost to them
within a reasonable time frame.
Comment: The Department received several comments urging the
Department to amend this rule to reflect the Access Board NPRM
proposing to revise the Accessible MDE standards by replacing the
current 17 to 19 inch low transfer height range with a low transfer
height of 17 inches.\225\ The Access Board issued this NPRM to revise
the height consistent with the findings of recent NIDILRR-funded
research that the 17-inch low transfer height better reflects the needs
of wheelchair users for safe transfers to examination tables.\226\
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\225\ 88 FR 33056 (May 23, 2023).
\226\ See, e.g., Clive D'Souza, University of Pittsburgh Dep't
of Rehabilitation Science and Technology, Analysis of Low Wheelchair
Seat Heights and Transfer surfaces for Medical Diagnostic Equipment
Final Report (Jan. 2022), https://www.access-board.gov/research/human/wheelchair-seat-height/.
---------------------------------------------------------------------------
Response: The Access Board issued an NPRM that proposed to remove
the sunset provision allowing for a 17 to 19 inch low transfer surface
height and replace it with a 17-inch low transfer height requirement in
May of 2023. As of the drafting of this final rule, the Access Board
has not yet finalized the 17-inch low transfer height. As noted in the
NPRM, the Department will consider issuing supplemental rulemaking
updating the low transfer height requirement once the Access Board's
NPRM on transfer height is finalized.
Under this rule, recipients acquiring accessible examination tables
have the option acquiring examination tables that lower to between 17
to 19 inches.
As a reminder, under Sec. 84.93(a) recipients are required to
operate their programs and activities that use MDE so that they are
accessible to people with disabilities, regardless of whether their
exam tables lower to 17 or 19 inches.
Comment: A commenter encouraged the Department to work with the
Access Board and DOJ on guidance and to consider the General Services
Administration's framework for implementing the technology
accessibility standards under section 508 of the Rehabilitation Act.
Response: The Department appreciates the recommendation and is
committed to creating guidance documents and other technical assistance
and providing education to assist recipients with understanding and
meeting their obligations, in addition to guidance documents on the MDE
Standards that already exist.\227\
---------------------------------------------------------------------------
\227\ See e.g., ADA Nat'l Network, Accessible Medical Diagnostic
Equipment, https://adata.org/factsheet/accessible-medical-diagnostic-equipment (last visited Dec. 11, 2023).
---------------------------------------------------------------------------
Summary of Regulatory Changes
Based on comments we received concerning methods for acquiring
accessible MDE, discussed below in the comments and responses
concerning Sec. 84.93, we are modifying Sec. 84.92(a) to explicitly
recognize that lease renewals, in addition to the purchase, lease, or
other acquisition, of MDE, will trigger the requirements of Sec.
84.92(a). The Department's intent was always that lease renewals fall
under the umbrella of new purchases, leases, or other methods for
acquiring MDE under Sec. 84.92(a), but we recognize that some readers
may be confused if lease renewals are not specifically mentioned.
Existing Medical Diagnostic Equipment (Sec. 84.93)
We proposed in Sec. 84.93 to include clarifications regarding
requirements for existing MDE. We proposed in Sec. 84.93(a) to clarify
that the program or activity in its entirety must be accessible, which
does not necessarily require a recipient to make each of its pieces of
MDE accessible, nor does it require a recipient to take an action that
would result in a fundamental alteration in the nature of a program or
activity, or in undue financial and administrative burdens.
In Sec. 84.93(a)(3) of this final rule, we are correcting a
typographical error in the NPRM. Section 84.93(a)(3) of the final rule
will state that a recipient meets its burden of proving that compliance
with Sec. 84.93(a) would result in a fundamental alteration under
Sec. 84.93(a)(2) if it demonstrates that compliance with Sec.
84.93(a) would alter diagnostically required structural or operational
characteristics of the equipment and prevent the use of the equipment
for its intended diagnostic purpose. The NPRM mistakenly referred to
Sec. 84.92(a) and (c) rather than Sec. 84.93(a).
We proposed in Sec. 84.93(b) to state that recipients could comply
with this section through other methods beyond the acquisition of
accessible MDE where other methods are effective in achieving
accessibility of the program or activity. We invited comment on the
following questions:
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.
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 & 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.
MDE Question 14: If this rule were to apply to medical
equipment that is not used for diagnostic purposes,
o 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? Are there
particular types of non-diagnostic medical equipment that should or
should not be covered?
The comments and our responses to proposed Sec. 84.93 are set
forth below.
Comment: The Department received comments on leasing arrangements
and alternatives from disability, public health, and provider groups
and State and local jurisdictions. One public health entity advised the
Department to conduct a comprehensive survey to better understand
leasing practices and their utilization in diagnostic health care
delivery. This commenter
[[Page 40171]]
mentioned that in addition to leasing new equipment, some entities will
lease or purchase refurbished units. Other health care providers may
receive MDE through donations, long-term borrowing, or pooling and
sharing arrangements. One commenter said that about 70% of medical
equipment is leased, typically on three to five year contracts but
often with early opt-out provisions, and that leases may qualify for
tax benefits like IRS section 179. Disability and caregiving commenters
specifically warned that lease renewals may be used by recipients to
circumvent compliance and urged the Department to revise regulatory
language to clarify that lease renewals are considered ``new'' leases.
Another disability advocacy organization noted trade-ins and rentals as
other possible alternatives to leases.
Response: The Department appreciates these responses. The
Department agrees that recipients may not rely on the renewal of leases
for existing MDE as a method to avoid acquiring accessible MDE for a
prolonged period of time. Accordingly, the Department has edited the
regulatory text at Sec. 84.92(a) to clarify that lease renewals will
also trigger the requirement to acquire accessible MDE. The intent of
the rulemaking was always to require recipients to acquire accessible
MDE when a recipient's lease of inaccessible MDE will expire at a set
point in the future, when a piece of MDE reaches the end of its useful
life and the recipient replaces it, or when a recipient decides to
acquire a new piece of MDE for any of a myriad of reasons. Failing to
explicitly state that lease renewals are included under Sec. 84.92(a)
may suggest that they are not covered and incentivize recipients to
renew leases on inaccessible MDE for greater periods than they would
have otherwise, extending the period where patients with disabilities
do not have access to accessible MDE. Additionally, the Department
notes that other arrangements, such as purchasing refurbished units or
acquiring MDE through donations, long term borrowing, pooling, or
sharing agreements will not exempt recipients from the obligations of
Sec. 84.92. Accordingly, the Department clarifies that lease renewals,
purchasing refurbished MDE, acquiring MDE through donations, long term
borrowing, pooling, and sharing agreements are all considered new
purchases, leases, or other acquisitions of MDE under Sec. 84.92 and
its scoping standards. Additionally, the Department considers trade-in,
rental, and other methods of acquisition of MDE as methods to
``otherwise acquire MDE'' already covered under Sec. 84.92. The intent
of this rulemaking is not to provide for loopholes where a recipient,
regardless of fundamental alteration or undue burden, can avoid
acquiring accessible MDE for long periods of time and avoid providing
access to people with disabilities.
Comment: The Department received many comments from diverse
stakeholders on whether the Access Board's MDE Standards should be
applied to medical equipment beyond MDE. While most commenters
supported applying the MDE Standards to non-diagnostic equipment,
especially equipment used for therapeutic or treatment purposes, some
commenters urged the Department not to do so without further input from
interested parties. Disability stakeholders strongly supported these
applications and several encouraged the Department to approve standards
for a range of medical equipment used primarily for treatment. However,
those commenters also stated that the Department lacks technical
expertise to impose such standards unilaterally on a broad range of
equipment. They therefore suggested the Department coordinate with the
Access Board, while also extending new standards to account for blind
individuals, people with sensory disabilities, higher weight people,
and people with intellectual disabilities. Other commenters advocated
for the Department to set standards for equipment used in the home and
for telehealth.
Response: The Department agrees that any extension of the MDE
standards to non-diagnostic equipment, or any new standards for medical
equipment meant to account for additional disabilities, should come
with additional input from the Access Board. The Department has been in
frequent contact with the Access Board about this rulemaking and the
MDE Standards, and would rely heavily on the Access Board's extensive
knowledge and technical acumen before altering the MDE Standards or
creating new standards. The Department also notes that proposed subpart
I covers accessible web content and mobile apps, including telehealth
platforms, and requires that recipients conform to the success criteria
of WCAG 2.1 AA.
Comment: An association representing dental support organizations
asked the Department whether dentists could continue to treat patients
who prefer to be treated in their wheelchairs after the effective date
of the final rule. This association also raised the issue of the
accessibility of exam chairs in instances where plumbing is attached to
the chairs in ways that prevent compliance with the standards.
Response: This rule establishes accessibility requirements that
recipients that use MDE must comply with. It does not require patients
to receive medical services while using accessible MDE if the recipient
can provide the benefits of the recipient's programs or activities that
the patient requires without the need for the patient to transfer to
the accessible MDE, and if the patient prefers not to transfer to the
accessible MDE.
In instances where a recipient has decided to use inaccessible exam
chairs with plumbing built into the chair, whether replacing one or
more of such inaccessible MDE with accessible MDE would constitute an
undue burden or fundamental alteration would depend entirely on the
individual circumstances of the recipient.
Summary of Regulatory Changes
For the reasons set forth above and considering the comments
received, in Sec. 84.93(a)(3), we are replacing the reference to Sec.
84.92(a) and (c) with a reference to Sec. 84.93(a), and we are
finalizing the remainder of Sec. 84.93 as proposed with no other
modifications.
Qualified Staff (Sec. 84.94)
Proposed Sec. 84.94 required that a recipient ensure its staff is
able to successfully operate accessible MDE, assist with transfers and
positioning of individuals with disabilities, and carry out program
access obligations for existing MDE. We invited comment on the
following questions:
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.
The comments and our responses to proposed Sec. 84.94 are set
forth below.
Comment: The Department received comments on how to ensure staff
are qualified and properly trained from diverse stakeholders.
Disability commenters overwhelmingly supported mandatory trainings of
recipients on the safe use of accessible MDE, accompanied by modules
covering effective communication and person-centered care, developed in
consultation with disability rights organizations and advocates with
lived experience with
[[Page 40172]]
refresher trainings at regular intervals. Commenters asserted that the
costs of these trainings would be modest, especially when compared with
the costs of worker or patient injury resulting from untrained staff.
One commenter asserted that proposed Sec. 84.94, as drafted in the
NPRM, was insufficient to ensure recipients train and retrain qualified
staff to operate accessible MDE and assist with necessary transfers and
positioning to meet recipient program access obligations and safely
serve clients. Many commenters agreed that health care providers must
be trained on accessible MDE and given guidance on cultural competency
in interactions with patients with disabilities, and urged the
Department to provide more support and training for recipients.
Finally, some disability commenters, citing personal or aggregated
accounts of hospitals asking relatives or companions to lift and
transfer patients, requested that we clarify that it is hospital staff,
not the patient or their relatives' responsibility, to do lifting and
transferring necessary to utilize MDE.
Response: The Department appreciates the comments on qualified
staff. As the NPRM notes, 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. While it may be in
the best interest of recipients to provide training, both for the
safety of the patient and the safety of the employee, the Department
wishes to provide recipients with flexibility in how they ensure
qualified staff. Appropriate training curricula and regimens for a
small single-physician providers may differ from those required for
large hospital systems.
Although specific trainings are not required, it is worth noting
that medical practices and facilities seeking technical assistance on
these and other health care accessibility requirements can reference
previously issued joint guidance from the Department and the Department
of Justice, titled ``Access to Medical Care for Individuals with
Mobility Disabilities.'' \228\ The Department will consider updating
this guidance for consistency with this rulemaking.
---------------------------------------------------------------------------
\228\ U.S. Dep't of Health & Human Servs., U.S. Dep't of
Justice, Access to Medical Care for Individuals with Mobility
Disabilities (July 2010), https://www.hhs.gov/sites/default/files/ocr/civilrights/understanding/disability/adamobilityimpairmentsgudiance.pdf.
---------------------------------------------------------------------------
Finally, the Department clarifies that, as noted in the NPRM,
barring an applicable limitation or defense, a recipient 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.\229\ The recipient
cannot require the person accompanying the patient to assist. We also
remind recipients that the provision in the ACA that required the
development of these MDE accessibility standards was designed to
``allow independent entry to, use of, and exit from the equipment by
such individuals to the maximum extent possible.'' \230\
---------------------------------------------------------------------------
\229\ See id.
\230\ 29 U.S.C. 794f.
---------------------------------------------------------------------------
Summary of Regulatory Changes
For the reasons set forth above and considering the comments
received, we are finalizing Sec. 84.94 as proposed with no
modifications.
Subpart K--Procedures
Subpart K contains the procedures for enforcement of this rule.
Procedures (Sec. 84.98)
Proposed Sec. 84.98, stated that the procedural provisions
applicable to title VI of the Civil Rights Act of 1964 apply to the
part. Those procedures are found in 45 CFR 80.6 through 80.10 and 45
CFR part 81.
The comments and our responses regarding Sec. 84.98 are set forth
below.
Comment: Many commenters expressed concerns about what they viewed
as a lack of enforcement procedures in the rule, noting that without
``teeth,'' the regulation is not useful and will have no effect. One
commenter urged that the rule contain a means of enforcement other than
through filing a lawsuit.
Response: The Department appreciates commenters' concerns about
what they believe to be a lack of enforcement procedures in the rule.
As noted above, Sec. 84.98 incorporates the compliance procedures of
title VI of the Civil Rights Act of 1964 which prohibits discrimination
on the basis of race, color, and national origin in federally funded
programs. Many other civil rights regulations that apply to recipients
of Federal financial assistance similarly incorporate title VI
procedures.
The incorporated regulations mandate that the Department conduct
proactive periodic compliance reviews without the need for a complaint
and also that it investigate complaints filed with it. Any person who
believes themselves or any specific class of individuals to have been
subjected to discrimination may file a written complaint within 180
days from the alleged discrimination, unless the time is extended by
the Department. The Department is required to make a prompt
investigation whenever a compliance review, complaint, or other
information coming to its attention indicates a possible failure to
comply with this part. If compliance cannot be achieved through
voluntary means, the regulations provide procedures for termination of
Federal financial assistance following an administrative hearing. The
Department may also refer the matter to DOJ to secure compliance
through any other means authorized by law. These administrative
procedures allow individuals to have their complaints investigated
without having to file lawsuits.
Complaints may be filed through the OCR Complaint Portal at
ocrportal.hhs.gov/ocr/smartscreen/main.jsf. The Department also accepts
complaints by email at [email protected] and by mail at Centralized
Case Management Operations, U.S. Department of Health and Human
Services, 200 Independence Ave. SW, Room 509F, Washington, DC 20201.You
can call OCR's toll-free number at (800) 368-1019 or (800) 537-7697
(TDD) to speak with someone who can answer your questions and guide you
through the process.
Comment: Observing the urgent need for enforcement, multiple
commenters, including several disability rights organizations,
recommended that we put in place procedures for oversight, monitoring,
and enforcement of the regulation. Others said that there must be
prioritization and strengthening of enforcement mechanisms. Several
commenters stated that compliance is complaint driven and they
cautioned against reliance on complaints alone to enforce the
regulations. They noted the difficulty of expecting individuals to file
complaints during a very stressful time.
Many commenters expressed concerns that the Department does not
have enough investigators for all the complaints. They felt that
complaints were being ``pushed aside'' because of other priorities.
Several commenters said that OCR needs to be adequately funded and
staffed to fully implement and enforce the regulations. One commenter
suggested that there be a separate division within the Department
dedicated to investigating complaints.
[[Page 40173]]
Response: We appreciate commenters' concerns and recognize the need
for strong enforcement mechanisms. As noted above, the Department can
initiate proactive compliance reviews on any matter that comes to their
attention without the need for a complaint to be filed. The Department
has a robust program of performing proactive agency-initiated
compliance and an enforcement division dedicated to compliance reviews
and complaint investigations with regional offices around the county.
We will continue to efficiently address complaints and conduct
compliance reviews consistent with the finite resources that we have
available.
Comment: We received many comments urging that the complaint
process be reformed and streamlined. Several commenters highlighted the
need for transparency about the complaint investigation process. A few
commenters recommended that individuals should have more than 180 days
to file complaints, there should be shorter time frames for responding
by the Department, and barriers to accessing the complaint form should
be eliminated. Many commenters suggested that resources, including
legal assistance, be made available to help individuals in filing
complaints. Noting that the Department encourages the use of the on-
line complaint form, many commenters expressed concerns about the
burden that this places on individuals who may have difficulty using a
computer and filling out forms on-line. They said that the technical
process should not create a hardship when an individual is already
under emotional and mental stress because of perceived discrimination.
A number of commenters urged the Department to reduce the burden of
filing complaints and to improve communication with individuals with
disabilities during the filing process. Others said that we should
provide specific guidance on how individuals and organizations can file
complaints, how we will investigate them, and how they will be
resolved. One commenter recommended that the regulations permit
individuals to file complaints even if they haven't personally
experienced discrimination.
Response: We thank the commenters for their suggestions to improve
the complaint process. We understand that the complaint procedure can
be challenging, and we are always striving to simplify the process and
to make it as transparent as possible. Staff are available to assist in
the process; however, we cannot provide legal assistance to individuals
filing complaints. The OCR website contains information about the
process of filing a complaint and what to expect when a complaint is
filed. In response to the comment about extending the 180-day time
frame for filing complaints, we note that under the existing
regulations the Department has discretion to extend the 180-day
requirement. In addition, the existing regulations make it clear that
anyone can file a complaint of discrimination.
Comment: Many disability rights organizations and others urged the
Department to use a cooperative rather than a punitive approach. They
emphasized the need for the Department to work collaboratively with
recipients to develop corrective action plans. Several asked that we
provide recipients with resources and support to help them comply with
the law. One commenter suggested that the Department focus on systemic
practices while State and local recipients handle individual
complaints. Noting that self-policing is a powerful way to promote
enforcement, the commenter recommended that large recipients be
required to institute internal complaint systems. Several commenters
suggested that recipients designate someone to be responsible for
ensuring enforcement of the regulation, accepting complaints, and
answering questions.
Response: We appreciate commenters' concerns and remain firmly
committed to using a cooperative approach. Throughout the investigative
process, OCR provides technical assistance and works closely with
recipients to help them comply with the law. The vast majority of OCR's
complaints are resolved in this cooperative manner and often result in
Voluntary Resolution Agreements. The Department's current section 504
regulation at Sec. 84.61 adopts the procedural provisions of title VI
of the Civil Rights Act of 1964 for its section 504 regulation. The
title VI regulation provides the legal framework for the Department's
investigative process, including the obligation to attempt to resolve
matters voluntarily and to assist recipients with compliance. 45 CFR
80.6(a); 80.7(d)(1); 80.8(a).
The existing regulations require that recipients designate an
individual responsible for ensuring compliance and instituting a
grievance procedure. Section 84.7(a) in the existing section 504 rule,
which is retained in this final rule, requires recipients with 15 or
more employees to designate an employee to coordinate efforts to comply
with the part. Section 84.7(b) requires those recipients to adopt
grievance procedures that provide for prompt and equitable resolution
of complaints.
With regard to the suggestion that the Department only handle
statewide cases while State and local recipients handle individual
matters, we note that the only agency with authority to enforce section
504 and to investigate section 504 complaints against its recipients is
the Department. However, an effective grievance procedure can allow
internal resolution of complaints, potentially reducing the number of
formal complaints filed with the Department.
Comment: Multiple commenters, including several disability rights
organizations, emphasized the urgent need for training and educational
materials on the provisions in the rule. Many requested technical
assistance and guidance documents to help them understand the
requirements. Others asked for financial resources to help them comply.
Response: We appreciate commenters' concerns and understand the
importance of providing technical assistance and guidance to support
compliance with this rule, and we will continue our practice of
providing educational materials, guidance, and technical assistance
documents on our website. Commenters' requests for providing increased
training on the rule will be taken into consideration. The Department
cannot provide financial assistance to recipients to ensure compliance
with the part.
Data Collection
Comment: A multitude of commenters, including many disability
rights organizations, urged the Department to collect disability data.
They recommended a provision in the rule requiring recipients to gather
disability data that would allow for equal inclusion of people with
disabilities in equity and quality analyses and would contain
information as to whether and how individuals received modifications.
Others said that there is a need for systematic, accurate, timely, and
comprehensive collection, analysis, and public reporting of disability
data for demographic purposes.
Response: Section 80.6(b) of the title VI regulations, incorporated
into this rule by Sec. 84.98, requires recipients to keep compliance
records that must be submitted to the Department as requested including
data showing the extent to which individuals with disabilities are
beneficiaries of and participants in federally assisted programs. That
section permits the Department to obtain any data it needs to determine
compliance with this rule
[[Page 40174]]
as it performs complaint investigations and compliance reviews.
However, obtaining data in this manner is done on a case-by-case basis
as needed. There is no requirement that every recipient maintain and
submit data to the Department.
We agree that there needs to be better standards and practices in
collecting data as this can have a positive impact in reducing
disparities. Developing a civil rights data collection scheme can help
to ensure that any civil rights data collection yields accurate data
that mitigates potential negative impacts and that adequately protects
the privacy of individuals. The Department is actively engaged with
other agencies within the Department and throughout the Federal
Government related to responsible data collection and recognizes the
importance of data collection to meet its mission. The value of any
data collection requirement will be significantly hampered by
misalignment with the data needs of other agencies. For these reasons,
the Department has decided to forgo the imposition of a data collection
requirement in this rulemaking. We will continue to work with
recipients and beneficiaries, and will consider whether an additional
data collection requirement is needed in a future rulemaking.
Summary of Regulatory Changes
For the reasons set forth above and considering the comments
received, we are finalizing Sec. 84.98 as proposed without
modification.
Section 504 Federally Conducted Rule
This rule covers federally assisted programs. In the preamble to
the proposed rule, we stated that since section 504 also covers
programs and activities conducted by the Department, the Department
intends to publish a separate rulemaking to update its federally
conducted regulation enacted in 1998 (45 CFR part 85).
Comments: Many commenters, including several disability rights
organizations, applauded the Department for issuing the federally
assisted regulation, noting that the robust improvements in the
proposed rule are welcome and critically important. However, they
expressed disappointment that a federally conducted NPRM was not issued
at the same time as the federally assisted NPRM. They said that this
delay represents a striking omission, and they strongly urged the
Department to accelerate publication of the rulemaking so that the
essential updates to the section 504 federally assisted regulations can
be applied to the Department itself which has a wide range of programs
under its purview. Another commenter noted the importance of supporting
individuals with disabilities within the Federal Government to ensure
equal and full participation in the Federal workforce.
Response: The Department appreciates the comments received. We
understand the importance of issuing a section 504 federally conducted
rule, and we intend to do so soon. We note that the current section 504
federally conducted regulation remains in effect.\231\
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\231\ 45 CFR part 85.
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IV. Executive Order 12866 and Related Executive Orders on Regulatory
Review
A. Regulatory Impact Analysis Summary
a. Statement of Need
The Department is revising its existing section 504 regulation
prohibiting discrimination on the basis of disability in programs and
activities receiving Federal financial assistance from the Department.
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.
HHS's section 504 regulation needed to be updated to reflect these
developments in the law.
b. Overall Impact
We have examined the impacts of the final rule under Executive
Order (E.O.) 12866, as amended by E.O. 14094; E.O. 13563; the Small
Business Regulatory Enforcement Fairness Act (also known as the
Congressional Review Act, 5 U.S.C. 801 et seq.); 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 final rule is a significant regulatory action under
section 3(f)(1) of E.O. 12866, as amended by E.O. 14094.
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 final 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 certify that the final rule will not have a
significant economic impact on a substantial number of small
entities.\232\
---------------------------------------------------------------------------
\232\ See discussion in section ``Regulatory Flexibility Act--
Small Entity Analysis'' below.
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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.'' This final 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.\233\
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\233\ 2 U.S.C. 1503(2).
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The Congressional Review Act (CRA) defines a ``major rule'' as
``any rule that the Administrator of the Office of Information and
Regulatory Affairs (OIRA) of the Office of Management and Budget finds
has resulted in or is likely to result in--(A) ``an annual effect on
the economy of $100,000,000 or more''; (B) ``a major increase in costs
or prices for consumers, individual industries, Federal, State, or
local government agencies, or geographic regions''; or (C)
``significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
enterprises to compete with foreign-based enterprises in domestic and
export markets.'' 5 U.S.C. 804(2). OMB's Office of Information and
Regulatory Affairs has determined that this final rule does meet the
criteria set forth in 5 U.S.C. 804(2). The Department will comply with
the CRA's requirements to inform Congress.
The Background and Overview sections at the beginning of this
preamble contain a summary of this final rule and describe the reasons
it is needed.
[[Page 40175]]
Below is a summary of the results and methodology from our
Regulatory Impact Analysis (RIA). A complete version of this RIA will
be available at https://www.hhs.gov/sites/default/files/sec-504-ria-final-rule-2024.PDF.
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.\234\ 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 rule
applies to this universe of recipients, updating the Department's
original regulation and adding new provisions in several areas. This
section 504 rule 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.\235\ While a majority of
the estimated costs associated with this rule concern health care
providers, the rule covers all recipients of HHS funding.
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\234\ 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.
\235\ 45 CFR part 85.
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The RIA considers the various 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 final 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 final
rule is expected to accrue.
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 using discount rates of 7
and 3 percent. The Final RIA results differ from Preliminary RIA
results because some subpart I costs and benefits, which are based on
the DOJ web accessibility RIA,\236\ have been recalculated to account
for changes DOJ has made to its web accessibility RIA. Final RIA
results also differ from Preliminary RIA results because the Final RIA
results are expressed in 2022 dollars, while the Preliminary RIA
results are expressed in 2021 dollars.
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\236\ U.S. Dep't of Justice, Title II Web and Mobile App Access
FRIA 04-08-2024, https://www.ada.gov/assets/pdfs/web-fria.pdf.
Table 1--Annualized Value of Monetized Benefits and Costs Under the
Final Rule, in 2022 Dollars
[Annualized value of monetized costs and benefits under the final rule]
[In 2022 dollars]
------------------------------------------------------------------------
7-Percent 3-Percent
discount rate discount rate
(in millions) (in millions)
------------------------------------------------------------------------
Monetized Incremental Costs
------------------------------------------------------------------------
Subpart I--Web, Mobile, and Kiosk 934.7 916.9
Accessibility........................
Subpart J--Accessible Medical 377.4 371.6
Equipment............................
Sec. 84.56--Medical Treatment....... 14.0 13.6
Sec. 84.57--Value Assessment Methods 0.1 0.1
Sec. 84.60--Child Welfare........... 0.1 0.1
---------------------------------
Total Monetized Incremental Costs 1,326.1 1,302.1
*................................
------------------------------------------------------------------------
Monetized Incremental Benefits
------------------------------------------------------------------------
Subpart I--Web, Mobile, and Kiosk 1,265.6 1,311.8
Accessibility........................
Subpart J--Accessible Medical 145.5 145.5
Equipment............................
---------------------------------
Total Monetized Incremental 1,411.1 1,457.3
Benefits *.......................
------------------------------------------------------------------------
(* Note: Totals may not sum due to rounding. The effects of this rule
overlap with the effects of DOJ's final rule under title II of the ADA
(89 FR 31320, April 24, 2024); see Summary Table C in the Regulatory
Impact Analysis (RIA), which is also reproduced below, for quantified
overlapping costs and benefits.)
[[Page 40176]]
Summary Table C--Annualized Value of Monetized Base Costs and Benefits Excluding Those Associated With
Recipients That Are Public Entities Covered by DOJ Title II Web Accessibility Final Rule (89 FR 31320, April 24,
2024) in 2022 Dollars
[Millions]
----------------------------------------------------------------------------------------------------------------
Costs, 7% Costs, 3% Benefits, 7% Benefits 3%
Subpart I costs and benefits discount rate discount rate discount rate discount rate
----------------------------------------------------------------------------------------------------------------
(1) All recipients.......................... 934.7 916.9 1,265.6 1,311.8
(2) Excluding recipients that are also 384.9 393.2 77.4 84.0
public entities under title II.............
----------------------------------------------------------------------------------------------------------------
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
for web content and mobile apps.
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 requested comment on more
extensive transition and ongoing costs, but did not receive comments on
those costs.
Concerning the provisions to ensure consistency with the ADA,
statutory amendments to the Rehabilitation Act, and Supreme Court and
other significant court cases, the Department believes that these
provisions will likely result in no additional costs to recipients.
Regarding costs that can be monetized, the RIA finds that the final
rule would result in annualized costs of $1,302.1 million or $1,326.1
million ($778.4 million or $776.4 million, if limited to costs that do
not overlap with DOJ's final web accessibility rule under title II of
the ADA), corresponding to a 3% or a 7% discount rate. We separately
report a full range of cost estimates of about $1,047.5 million to
$1,765.6 million at a 3% discount rate, and a full range of cost
estimates of about $1,072.9 million to $1,798.8 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.
Benefits from web, mobile, and kiosk accessibility and accessible
school courses come from time savings and better education outcomes for
both people with disabilities and people without disabilities. We
conclude that the final rule yields subpart I benefits of $1,311.8
million/year at a 3% discount rate or $1,265.6 million/year at a 7%
discount rate ($84.0 million or $77.4 million, if limited to benefits
that do not overlap with DOJ's web accessibility final rule).
Subpart J benefits are benefits people with disabilities are
expected to receive thanks to higher percentages of accessible MDE
yielding improved health outcomes at recipients' locations. We conclude
that the final rule yields $145.5 million/year in cancer-associated
benefits. We separately report a range of quantifiable cancer-
associated benefit estimates of $97.0 million to $193.9 million per
year.
Total quantified benefits from subparts I and J provisions are thus
estimated to exceed corresponding costs. Total annualized benefits are
estimated to be $1,457.3 million at a 3% discount rate and $1,411.1
million at a 7% discount rate ($229.4 million or $222.8 million, if
limited to benefits that do not overlap with DOJ's web accessibility
final rule).
In addition to these quantified benefit estimates, the RIA includes
discussions of potential unquantified benefits under the rule.
Generally, the RIA anticipates that the final rule will result in
myriad 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
requested comment that would facilitate more thorough estimation, and
we received no additional information.
The RIA discusses both quantitatively and qualitatively the
regulatory alternatives the Department considered in an attempt to
achieve the same statutory and regulatory goals while imposing lower
costs on society.
Regulatory Flexibility Act--Small Entity Analysis
The Department examined the economic implications of this final
rule as required by the Regulatory Flexibility Act. This analysis, as
well as other sections in the Regulatory Impact Analysis, serves as the
Regulatory Flexibility Analysis, as required under the Regulatory
Flexibility Act.
The Department deems that a rule has a significant economic impact
on a substantial number of small entities whenever the rule generates
incremental cost representing more than 3% of revenue for 5% or more of
small recipients.\237\
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\237\ HHS uses as its measure of significant economic impact on
a substantial number of small entities a change in revenues of more
than 3% for 5% or more of affected small entities.'' 81 FR 31463
(May 18, 2016). See also 87 FR 47906 (Aug. 4, 2022) (``The
Department generally considers a rule to have a significant impact
on a substantial number of small entities if it has at least a 3%
impact on revenue on at least 5% of small entities'').
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The U.S. Small Business Administration (SBA) maintains a Table of
Small Business Size Standards Matched to North American Industry
Classification System Codes (NAICS).\238\ Because the RIA uses 2019
counts of firms, for consistency, we have used SBA yearly revenues
thresholds for 2019, which for recipients ranged
[[Page 40177]]
between $8 million \239\ and $41.5 million.\240\
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\238\ 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.
\239\ 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).
\240\ 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.
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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 final rule are small businesses. Moreover, the fraction of
total small firms in each NAICS code that falls in the smallest size
group (fewer than 5 employees) is greater than 5% for all relevant
NAICS codes. Because most non-government recipients under the scope of
the final rule are small businesses, it is sufficient to investigate
the impact of the final rule on the average recipient in the smallest
size group to determine whether the final 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 incur incremental cost 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 certify that the final 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 revenue (in
2022 dollars) for a recipient belonging to the smallest size group--for
each 6-digit NAICS code considered separately--is $190,000 or more.
Three percent of this sum is about $5,700 (2022 dollars), which, based
on our review of data on prices for MDE as well as incremental costs
for ensuring qualified staff, we deem is an amount sufficient to
finance purchase of the limited set of inexpensive MDE the smallest
entities typically need as well as to ensure qualified staff.
Considering the smallest recipient groups among each of the 6-digit
NAICS groups that private recipients belong to, the typical yearly
average revenue is about $354,000. That represents the median of the
average revenues across all relevant 6-digit NAICS codes. Podiatrists'
offices' average yearly revenue is at the median, but general hospitals
have the highest average yearly revenue among the relevant NAICS codes
at $20 million, and Child Day Care Services have the lowest average
yearly revenue among the relevant NAICS codes at $116,000. Thus, in
many cases the 3% revenue threshold is about $10,000. Costs of the
final 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.\241\
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\241\ See full Regulatory Impact Analysis for tables and
calculations.
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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 small
recipients will be able to ensure that their websites can be made
accessible and kept accessible each year.
Comment: Some commenters expressed concern that the requirements of
subpart I would lead to significant costs for recipients. One commenter
in particular stated that it reviewed the price estimates of a firm
that offers services to make web content ``ADA compliant'' and believed
that the costs for reviewing existing web content for compliance and
remediating web content for compliance could be more than $23,500 with
additional monthly expenses.\242\
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\242\ See Skynet Technologies, How much does it cost to make a
website ADA compliant? What are the factors that impact the cost?,
https://www.skynettechnologies.com/blog/cost-to-make-website-ada-compliant (last visited Dec. 15, 2023).
---------------------------------------------------------------------------
Response: In the RIA, the Department sampled several software
companies' price lists for products and services designed to make
websites accessible in order to estimate average compliance costs for
recipients of various sizes. Based on that sampling, the Department
estimates the average annual compliance costs for the 113,295 larger
recipients to be $2,500 per year. Using that same methodology, the
Department estimates the annual compliance costs for the 339,789
smaller recipients (comprising offices of physicians, dentists, and
other health practitioners) will be much lower given that the smaller
entities' websites are expected to be less complex and include fewer
pages. The Department's RIA estimates that the 85.9% of these smaller
entities that have websites will spend an average of $440/year to
ensure their pages are accessible. While there will be instances where
a recipient incurs costs above the Department's estimated annual costs,
those will likely be incurred by large recipients, such as hospitals
with multiple locations, that use web content and mobile apps
extensively and already devote significant resources to creating and
maintaining web content and mobile apps. In rare instances where a
small recipient has a significant online presence that would require a
large percentage of its resources to review and remediate, the
recipient may argue that full compliance with subpart I would amount to
an undue burden under Sec. 84.88.
We stress that the final rule includes exceptions meant to ease the
burden on small firms and does not require entities to take any action
that would result in a fundamental alteration in the nature of a
program or activity or cause the entities to incur undue financial and
administrative burdens.
Executive Order 13132: Federalism
As required by E.O. 13132 on Federalism, the Department has
examined the effects of provisions in the final regulation on the
relationship between the Federal Government and the States. The
Department has concluded that the final regulation has federalism
implications but notes that State law will continue to govern unless
displaced under standard principles of preemption.
[[Page 40178]]
The 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
final rule. The 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 Federal regulatory requirements or implementation
specifications will continue to be enforceable. Section 3(b) of E.O.
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 E.O. 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 rulemaking 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.
We received comments, including from States, that the Department
did not consult with States in violation of E.O. 13132, particularly
with respect to the integration provision's prohibition of failure to
provide community-based services that results in serious risk of
institutionalization. As explained above in the preamble discussion of
the integration provision at Sec. 84.76, application of the
integration mandate's protection to individuals ``at serious risk of
institutionalization'' in the absence of community-based services is a
well-established principle adopted by six circuits following Olmstead,
beginning in 2003 with the decision in Fisher v. Oklahoma Health Care
Authority.\243\ Given that this rule creates no new obligations to
State and local governments, all of which have the existing
responsibilities clarified in this rule under section 504 and analogous
regulatory provisions in title II, this rule does not impose any new
preemption of State law. Moreover, although the proposed rule addresses
circumstances not previously covered specifically in the existing rule,
those provisions also do not create new obligations for State and local
governments, or other recipients of Federal financial assistance, but
instead explicate longstanding requirements in the existing section 504
regulations that prohibit recipients from providing services to
qualified persons with disabilities in a manner that does not provide
equal opportunities for such persons to gain the same benefits. In
addition, a number of State and local governments and State agencies
participated in the process by submitting comments in response to NPRM.
---------------------------------------------------------------------------
\243\ 335 F.3d 175 (10th Cir. 2003).
---------------------------------------------------------------------------
Section 6(b) of E.O. 13132 includes some qualitative discussion of
substantial direct compliance costs that State and local governments
would incur as a result of a final regulation. We have considered the
cost burden that this rule imposes on State and local government
recipients and estimate State and local government annualized costs
will be about $563.6 million per year (2022 dollars) at a 3% discount
rate and $589.8 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 40% of costs for all recipients, i.e., public and
private entities altogether), subpart J (about 10% of costs for all
recipients), Sec. 84.56--Medical treatment (about 10% of costs for all
recipients), 100% of costs for Sec. 84.57--Value assessment methods
(only public entities--Medicaid agencies--bear these costs), and Sec.
84.60--Child welfare (about 4% of costs of all recipients).
In addition, the Department is aware that DOJ published the final
Regulatory Impact Analysis \244\ to accompany its rule finalizing
requirements for public entities covered by title II of the ADA and
that its requirements are consistent with this Department's subpart
I.\245\ 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 final rule (89 FR 31320, April 24,
2024), 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.
---------------------------------------------------------------------------
\245\ U.S. Dep't of Justice, Title II Web and Mobile App Access
FRIA 04-08-2024, https://www.ada.gov/assets/pdfs/web-fria.pdf.
---------------------------------------------------------------------------
Paperwork Reduction Act
This final 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).\246\ 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. In order to evaluate whether an information collection
should be approved by OMB, the PRA requires that the Department
solicits comment on the following issues:
---------------------------------------------------------------------------
\246\ 44 U.S.C. 3501-3520.
---------------------------------------------------------------------------
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.\247\
---------------------------------------------------------------------------
\247\ 44 U.S.C. 3506(c)(2)(A).
---------------------------------------------------------------------------
The PRA requires consideration of the time, effort, and financial
resources necessary to meet the information collection requirements
referenced in this section. The Department previously published a
notice of a proposed data collection on September 14, 2023, at 88 FR
63392-6351, as part of an NPRM entitled ``Discrimination on the Basis
of Disability in Health and Human Service Programs or Activities'' (RIN
0945-AA15), to invite public comment. OCR solicited comment on the
issues listed above and estimated the annual burden of the information
collection request (ICR) to be 256,763 hours. The new information
collection is evaluated under OMB Control Number 0945-0013.
OCR did not receive comments related to the previous notice.
The notice requirement outlined in Sec. 84.8 implicates the third-
party disclosure provisions of the PRA implementing regulations, which
compels an agency to request comment
[[Page 40179]]
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 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.
The estimated total number of hours to respond is 256,763 (0.5667 x
453,084).
Unfunded Mandates Reform Act
Section 4(2) of the Unfunded Mandates Reform Act of 1995 (UMRA), 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
UMRA.
The Department received comment from some State officials arguing
that the integration provision in Sec. 84.76 Integration is subject to
the UMRA. For the reasons discussed in the preamble for Sec. 84.76,
the Department declines this interpretation and restates that the rule
in its entirety is exempted from the UMRA as a rule that enforces
nondiscrimination on the basis of disability.
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.\248\
---------------------------------------------------------------------------
\248\ Public Law 104-113, section 12(d)(1) (15 U.S.C. 272 Note).
---------------------------------------------------------------------------
The Department sought public comment in the NPRM on the
accessibility standards for accessible medical diagnostic equipment and
whether there are any other standards for accessible medical diagnostic
equipment that the Department should consider. We received no
significant public comment in response to our question requesting
suggestions of alternative standards to apply to MDE. We also sought
comment on the selection of WCAG 2.1 AA to coordinate the
implementation and enforcement by Executive agencies of section 504 of
the Rehabilitation Act of 1973, as amended (29 U.S.C. 794). Executive
Order 12250 at section 1-2(c), 45 FR 72995 (Nov. 2, 1980). 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.\249\ 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 and final
rules.\250\
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\249\ See E.O. 12250 (DOJ Coordination authority) at 1-503 and
E.O. 12067 (EEOC Coordination authority).
\250\ 28 CFR 0.51.
---------------------------------------------------------------------------
The proposed rule was reviewed and approved by the Assistant
Attorney General, and this final rule was also reviewed and approved by
the Assistant Attorney General.
Incorporation by Reference
Through this rule, the Department is adopting the internationally
recognized accessibility standard for web access, WCAG 2.1, published
in June 2018, as the technical standard for web and mobile app
accessibility under section 504. WCAG 2.1, published by W3C WAI,
specifies success criteria and requirements that make web content more
accessible to all users, including individuals with disabilities. The
Department incorporates WCAG 2.1 by reference into this rule, instead
of restating all of its requirements verbatim. To the extent there are
distinctions between WCAG 2.1 and the standards articulated in part 84,
the standards articulated in part 84 prevail.
The Department notes that when W3C publishes new versions of WCAG,
those versions will not be automatically incorporated into this rule.
Federal agencies do not incorporate by reference into published
regulations future versions of standards developed by bodies like W3C.
Federal agencies are required to identify the particular version of a
standard incorporated by reference in a regulation.\251\ When an
updated version of a standard is published, an agency must revise its
regulation if it seeks to incorporate any of the new material.
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\251\ See, e.g., 1 CFR 51.1(f) (``Incorporation by reference of
a publication is limited to the edition of the publication that is
approved [by the Office of the Federal Register]. Future amendments
or revisions of the publication are not included.'').
---------------------------------------------------------------------------
WCAG 2.1 Level AA is reasonably available to interested parties.
Free copies of WCAG 2.1 Level AA are available online on W3C's website
at https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F. In addition, a copy of WCAG 2.1 Level AA is also
available for inspection by appointment at Office for Civil Rights,
U.S. Department of Health and Human Services, 200 Independence Ave. SW,
Room 509F, HHH Building, Washington, DC 20201.
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, Incorporation by reference,
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 amends 45 CFR part 84 as follows:
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.
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2. Revise the heading for part 84 to read as set forth above.
Subpart A--General Provisions
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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
[[Page 40180]]
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.
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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]
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5. Remove Sec. 84.10.
Sec. 84.3 [Redesignated as Sec. 84.10]
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6. Redesignate Sec. 84.3 as Sec. 84.10.
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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.
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8. Revise Sec. 84.4 to read as follows:
Sec. 84.4 Disability.
(a) Definition--(1) Disability. 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'' (paragraph (a)(1)(i) of this
section) or ``record of'' (paragraph (a)(1)(ii) of this section)
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'' (this paragraph (a)(1)(iii)) 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)(i) Physical or mental
impairment is defined as 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, mental health condition, 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, mental health
condition, 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.
(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
[[Page 40181]]
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 ADA Amendments Act of 2008 (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'' (paragraph (a)(1)(i) of this section) or
``record of'' (paragraph (a)(1)(ii) of this section) 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 the principles in this section, 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 the principles of this section 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 (d)(2) 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 this
section, 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'' (paragraph (a)(1)(i) of this section) or
``record of'' (paragraph (a)(1)(ii) of this section) 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 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
[[Page 40182]]
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. 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 the prong in this paragraph (e) 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 the terms
set forth at 29 U.S.C. 705(20)(F).
Sec. 84.6 [Amended]
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9. Amend Sec. 84.6 by:
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a. Removing the word ``handicap'' and adding in its place the word
``disability'' in paragraphs (a)(1) and (2); and
0
b. Removing the words ``handicapped persons'' and adding in their place
the words ``persons with disabilities'' wherever they occur in
paragraphs (a)(3), (b), and (c).
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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 their
designee finds necessary to apprise such persons of the protections
against discrimination assured them by section 504 and this part.
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11. Revise and republish newly redesignated Sec. 84.10 to read as
follows:
Sec. 84.10 Definitions.
As used in this part, the term:
2004 ADA Accessibility Guidelines (ADAAG) means the requirements
set forth in appendices B and D to 36 CFR part 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 through 102-76.95.
Archived web content means web content that--
(1) Was created before the date the recipient is required to comply
with Sec. 84.84, reproduces paper documents created before the date
the recipient is required to comply with Sec. 84.84, or reproduces the
contents of other physical media created before the date the recipient
is required to comply with Sec. 84.84;
(2) Is retained exclusively for reference, research, or
recordkeeping;
(3) Is not altered or updated after the date of archiving; and
(4) 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;
[[Page 40183]]
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, and spreadsheet 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.
Department means the Department of Health and Human Services.
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).
Director means the Director of the Office for Civil Rights.
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; and
(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.
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 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 nondisabled persons
to the fullest extent possible. These settings provide opportunities to
live, work, and receive services in the greater community, like
individuals without disabilities; 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.
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
[[Page 40184]]
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) through (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, 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 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.
Recipient means any State or its political subdivision, any
instrumentality of a State or its political subdivision, any public or
private agency, institution, organization, or other entity, or any
person to which Federal financial assistance is extended directly or
through another recipient, including any successor, assignee, or
transferee of a recipient, but excluding the ultimate beneficiary of
the assistance.
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.
Section 508 Standards means the standards for Information and
Communications Technologies (ICT) promulgated at 36 CFR part 1194 by
the U.S. Access Board per section 508 of the Rehabilitation Act (29
U.S.C. 794d 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 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 promulgated by the
Architectural and Transportation Barriers Compliance Board (Access
Board) under section 510 of the Rehabilitation Act of 1973, as amended,
found at 36 CFR part 1195 (as of Jan. 9, 2017), with the exception of
M301.2.2 and M302.2.2.
State includes, in addition to each of the several States of the
United States, the District of Columbia, the Commonwealth of Puerto
Rico, the United States Virgin Islands, Guam, American Samoa, 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
[[Page 40185]]
extend. The ultimate beneficiary class may be the general public or
some narrower group of persons.
User agent means any software that retrieves and presents web
content for users.
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 Recommendation 05 June 2018, https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and 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 the 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. 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 their 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 (a) 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 in 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 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, in making alterations to existing
buildings, shall 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 July 8, 2024, and that comply with the
corresponding technical and scoping specifications for those elements
in the American National Standard Specification (ANSI) (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 part 101-19,
subpart 101-19.6 (revised as of July 1, 2002), for those facilities
constructed between January 18, 1991, and July 8, 2024, 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
[[Page 40186]]
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 paragraph (c) 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 July 8, 2024, 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), appendix A to 41 CFR part 101-19,
subpart 101-19.6 (revised as of July 1, 2002). 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 July 8, 2024, but before May 9, 2025, 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
May 9, 2025, 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 paragraph (d) 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 where
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, shall be deemed in compliance with this section if they meet
the requirements of 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) 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 July 8, 2024, or if no permit is required,
if the start of physical construction or alterations occurs on or after
January 18, 1991, and before July 8, 2024. Departures from particular
requirements of UFAS 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.
(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 July 8, 2024, and before May 9, 2025, or if
no permit is required, if the start of physical construction or
alterations occurs on or after July 8, 2024, and before May 9, 2025.
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) 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 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 May 9, 2025, or if no permit is required, if the start of
physical construction or alterations occurs on or after May 9, 2025.
(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 May 9, 2025, and that do not
comply with UFAS shall before May 9, 2025, 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 May 9, 2025, and that do not comply with ANSI (for facilities
constructed or altered between June 3, 1977, and January 18, 1991) or
UFAS (for facilities
[[Page 40187]]
constructed or altered on or after January 18, 1991) shall, on or after
May 9, 2025, 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 the Architectural Barriers Act and its implementing
regulations, 41 CFR 102-76.60 through 102-76.95 (General Services
Administration); 39 CFR part 255 (U.S. Postal Service); 24 CFR part 40
(U.S. Department of Housing and Urban Development); and the U.S.
Department of Defense ``Policy Memorandum for Secretaries of the
Military Departments: Access for People with Disabilities'' (October
31, 2008).
(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.
This subpart 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 ``persons with disabilities'' wherever they occur in
paragraphs (a), (b)(1), (b)(2) introductory text, and (b)(3)(iii);
0
c. Removing the words ``handicapped person'' and ``handicaps'' and
adding in their places the words ``person with a disability'' and
``disabilities'', respectively, 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 ``handicap'' and
adding in their places the words ``student with a disability'' and
``disability'', respectively, in paragraphs (a) and (c); and
0
b. Removing the words ``handicapped persons'' and adding in their place
the words ``persons 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 words ``handicapped applicant or student'' and adding
in their place the words ``applicant or student with a disability'' in
paragraph (a);
0
c. Removing the words ``handicapped students'' and adding in their
place the words ``students with disabilities'' wherever they occur in
paragraph (b); and
0
d. Removing the words ``handicapped student'' and adding in their place
the words ``student with a disability'' in paragraph (d)(1).
Sec. 84.45 [Amended]
0
24. Amend Sec. 84.45 by:
0
a. Revising paragraph (a); and
0
b. Removing the word ``handicap'' and adding in its place the word
``disability'' in paragraph (b).
The revision reads as follows:
Sec. 84.45 Housing.
(a) Housing provided by the recipient. A recipient that provides
housing to its students without disabilities shall provide comparable,
convenient, and accessible housing to students with disabilities at the
same cost as to others. At the end of the transition period provided
for in subpart C of this part, such housing shall be available in
sufficient quantity and variety so that the scope of students with
disabilities' choice of living accommodations is, as a whole,
comparable to that of students without disabilities.
* * * * *
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 their place
the words ``persons with disabilities'' wherever they occur in
paragraph (a)(1); and
0
c. Removing the words ``nonhandicapped persons'' and adding in their
place the words ``persons 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 (b);
0
c. Removing the words ``handicapped student'' and adding in their place
the words ``student with a disability'' in paragraph (a)(2); and
0
d. Removing the words ``nonhandicapped students'' and ``handicapped
persons'' and adding in their places the words ``students without
disabilities'' and ``persons with disabilities'', respectively, 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
[[Page 40188]]
words ``person with a disability'' in paragraphs (a)(1) through (3);
0
b. Removing the words ``nonhandicapped persons'' and adding in their
place the words ``persons without disabilities'' in paragraph (a)(2);
0
c. Removing the words ``handicapped persons'' and adding in their place
the words ``persons with disabilities'' wherever they occur in
paragraphs (a)(4) and (5) and (b);
0
d. Removing the word ``handicap'' and adding in its place the word
``disability'' in paragraph (b); and
0
e. 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 health
care facility may not discriminate in admission or treatment against an
individual with a substance or alcohol use disorder who has a medical
condition, because of the person's substance 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 the section heading,
paragraph (a), and paragraph (f) introductory text;
0
b. Removing the words ``handicapped infants'' and adding in their place
the words ``infants with disabilities'' in paragraphs (f)(1)(i),
(f)(1)(ii)(A), and (f)(1)(ii)(C);
0
c. Removing the word ``handicaps'' and adding in its place the word
``disabilities'' in paragraph (f)(1)(ii)(C); and
0
d. 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, or 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) Circumstances in which the recipient has a legitimate,
nondiscriminatory reason for denying or limiting a service or where the
disability renders the individual not qualified for the treatment may
include 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 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.
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.
[[Page 40189]]
(2) Under the prohibition set forth in paragraph (a)(1) of this
section, 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 any and all services provided by a child
welfare agency, including but not limited to, family preservation and
reunification services equal to that afforded to persons without
disabilities;
(3) Terminate the parental rights or legal guardianship of a
qualified individual with a disability;
(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; or
(5) Require children, on the basis on the disability, to be placed
outside the family home through custody relinquishment, voluntary
placement, or other forfeiture of parental rights in order to receive
necessary services.
(c) Parenting evaluation procedures. A recipient to which this
subpart applies shall establish procedures for referring to qualified
professionals for evaluation those individuals, who, because of
disability, need or are believed to need adapted services or reasonable
modifications. A recipient shall also ensure that tests, assessments,
and other evaluation tools and materials used for the purpose of
assessing or evaluating parenting ability are based in evidence or
research, are conducted by a qualified professional and are tailored to
assess actual parenting ability and specific areas of disability-
related needs. Parenting evaluations must be fully accessible to people
with disabilities and shall not be based on a single general
intelligence quotient or measure of the person's disability, rather
than their parenting ability. Assessments of parents or children must
be individualized and based on the best available objective evidence.
0
33. 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
[[Page 40190]]
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
``disability'' solely under the ``regarded as'' prong of the definition
of disability in Sec. 84.4(a)(1)(iii).
(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 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 this paragraph (c) 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
[[Page 40191]]
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).
(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; and
(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.
(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).
[[Page 40192]]
Sec. 84.76 Integration.
(a) Application. This section applies to programs or activities
that receive Federal financial assistance from 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.
(c) Segregated setting. Segregated settings include but are not
limited to congregate settings that are populated exclusively or
primarily with individuals with disabilities and may be characterized
by regimentation in daily activities; lack of privacy or autonomy; or
policies or practices 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 qualified 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
paragraph (d)(4) includes, but is not limited to planning, service
system design, funding, or service implementation practices that result
in institutionalization or serious risk of institutionalization.
Qualified 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
34. Add subpart H, consisting of Sec. Sec. 84.77 through 84.81, 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 Federal Communications Commission (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.
[[Page 40193]]
Sec. 84.79 Telephone emergency services.
Telephone emergency services, including 911 services, shall provide
direct access to individuals who use TTYs 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
35. Add subpart I, consisting of Sec. Sec. 84.82 through 84.89, to
read as follows:
Subpart I--Web, Mobile, and Kiosk Accessibility
Sec.
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 Effect of noncompliance that has a minimal impact on access.
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 provides or makes available,
directly or through contractual, licensing, or other arrangements; and
(2) Mobile apps that a recipient provides or makes available,
directly or through contractual, licensing, or other arrangements.
(b) Requirements. (1) Beginning May 11, 2026, a recipient with
fifteen or more employees shall ensure that the web content and mobile
apps that the recipient provides or makes available, directly or
through contractual, licensing, or other arrangements, 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 in undue financial and
administrative burdens.
(2) Beginning May 10, 2027, a recipient with fewer than fifteen
employees shall ensure that the web content and mobile apps that the
recipient provides or makes available, directly or through contractual,
licensing, or other arrangements, 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 in 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 material approved for incorporation by
reference (IBR) is available for inspection at HHS and at the National
Archives and Records Administration (``NARA''). Contact HHS, OCR at:
Office for Civil Rights, U.S. Department of Health and Human Services,
200 Independence Ave. SW, Room 509F, HHH Building, Washington, DC
20201; phone: (202) 545-4884; email: [email protected]. For information on
the availability of this material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations or email [email protected]. The
material may be obtained from the World Wide Web Consortium (W3C) 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/ and 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 that are available as part of a recipient's web
content or mobile apps before the date the recipient is required to
comply with Sec. 84.84, unless such documents are currently used to
apply for, gain access to, or participate in the recipient's programs
or activities.
(c) Content posted by a third party. Content posted by a third
party, unless the third party is posting due to contractual, licensing,
or other arrangements with the recipient.
(d) Individualized, password-protected documents or otherwise
secured conventional electronic documents. Conventional electronic
documents that are:
(1) About a specific individual, their property, or their account;
and
(2) Password-protected or otherwise secured.
(e) Preexisting social media posts. A recipient's social media
posts that were posted before the date the recipient is required to
comply with Sec. 84.84.
Sec. 84.86 Conforming alternate versions.
(a) A recipient may use conforming alternate versions of web
content, as defined by WCAG 2.1, to comply with Sec. 84.84 only where
it is not possible to
[[Page 40194]]
make 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 material approved for incorporation by
reference is available for inspection at HHS and at NARA. Contact HHS,
OCR at: Office for Civil Rights, U.S. Department of Health and Human
Services, 200 Independence Ave. SW, Room 509F, HHH Building,
Washington, DC 20201; phone: (202) 545-4884; email: [email protected]. For
information on the availability of this material at NARA, visit
www.archives.gov/federal-register/cfr/ibr-locations or email
[email protected]. The material may be obtained from the World
Wide Web Consortium (W3C) 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/
and 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 compliance with the
requirements of Sec. 84.84 would result in a fundamental alteration in
the nature of a program or activity or in 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 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 Effect of noncompliance that has a minimal impact on
access.
A recipient that is not in full compliance with the requirements of
Sec. 84.84(b) will be deemed to have met the requirements of Sec.
84.84 in the limited circumstance in which the recipient can
demonstrate that the noncompliance has such a minimal impact on access
that it would not affect the ability of individuals with disabilities
to use the recipient's web content or mobile app to do any of the
following in a manner that provides substantially equivalent
timeliness, privacy, independence, and ease of use:
(a) Access the same information as individuals without
disabilities;
(b) Engage in the same interactions as individuals without
disabilities;
(c) Conduct the same transactions as individuals without
disabilities; and
(d) Otherwise participate in or benefit from the same programs and
activities as individuals without disabilities.
0
36. Add subpart J, consisting of Sec. Sec. 84.90 through 84.97, 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 (including via lease renewals), or otherwise acquire
more than July 8, 2024, 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 July 8, 2024, 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.
[[Page 40195]]
(d) Equivalent facilitation. Nothing in this section 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 (f) 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 (a) 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 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
this paragraph (a) would result in a fundamental alteration under
paragraph (a)(2) of this section if it demonstrates that compliance
with this paragraph (a) 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
37. 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 45
CFR 80.6 through 80.10 and 45 CFR part 81.
Xavier Becerra,
Secretary, Department of Health and Human Services.
[FR Doc. 2024-09237 Filed 5-1-24; 8:45 am]
BILLING CODE 4165-16-P