Articles

New HHS Final Rule and DOJ Proposed Rule Take Aim to Eliminate Further Discrimination Against People with Disabilities in Healthcare

Date: May 7, 2024
On May 1, 2024, the U.S. Department of Health and Human Services (HHS), through its Office for Civil Rights (OCR), finalized a rule that prohibits discrimination on the basis of disability. This rule (“Final Rule”), titled Discrimination on the Basis of Disability in Health and Human Service Programs or Activities, more explicitly and specifically provides protections for people under Section 504 of the Rehabilitation Act (Section 504). The Final Rule will take effect 60 days after the rule is published on May 9, 2024. Under the Final Rule, these new specifications apply to people with disabilities in federally funded health and human services programs, such as hospitals, health care providers participating in CHIP and Medicaid programs, state and local human or social service agencies, and nursing homes (“recipients”). On January 9, 2024, the DOJ released a notice of proposed rulemaking aimed at updating regulations under Title II to establish specific requirements for the accessibility of medical diagnostic equipment (MDE) and opined on the importance of coordinating its efforts with the HHS's proposed rule for US Congress intent to interpret Section 504 and Title II consistently, however, the DOJ rule has not been finalized to date.

Section 504 Updates
Section 504 currently sets forth several prohibitions against discrimination on the basis of disability under Part 84. The Final Rule updates Section 504 to explicitly address the following areas:
  • Medical treatment. HHS opined on the pervasive discrimination on the basis of disability in accessing medical care that leads to health disparities and poorer health outcomes, particularly in the areas of organ transplantation, life-sustaining treatment, participation in clinical research, and crisis standards of care that may go into effect when health care resources are limited.  The Final Rule ensures that medical treatment decisions by recipients are not based on biases or stereotypes about individuals with disabilities, judgments that an individual with a disability will be a burden on others, or beliefs that the life of an individual with a disability has less value than the life of a person without a disability.
  • Value assessment methods. HHS believes individual value assessment methods can play a significant role in whether medicine or treatment will be provided as they are a significant tool for cost containment and quality improvement efforts. However, value assessment methods may lead to discrimination against individuals with disabilities when they place a lower value on life extension for individuals with disabilities or when that method is used to limit access or deny aids, benefits, or services. The Final Rule prohibits discriminatory value assessments that utilize a method that places a lower value on people with disabilities.
  • Child welfare programs and activities. This section sets forth detailed requirements to prohibit discrimination in services provided by child welfare agencies, including, but not limited to, parent-child visitation, reunification services, child placement, parenting skills programs, and in- and out-of-home services.
  • Web and mobile accessibility. HHS believes it is vital to ensure that innovative technology methods are readily accessible to and usable by individuals with disabilities. The Final Rule defines what accessibility means for websites and mobile applications and requires compliance with specific technical standards, the Web Content Accessibility Guidelines (WCAG) 2.1 AA. This approach aligns with the standards recently published by the Department of Justice under Title II of the Americans with Disabilities Act.
  • Accessible medical equipment. HHS's stance is that exam tables that are not height adjustable, mammography machines that require a person to stand, and weight scales that do not accommodate wheelchairs all result in inequities and exclusion from basic health services for individuals with disabilities which contribute to poor health outcomes. The Final Rule adopts the U.S. Access Board’s standards for accessible medical diagnostic equipment and also requires that, within two years of the effective date, recipients using examination tables and/or weight scales have at least one accessible version of the equipment.
  • Integration. The Final Rule incorporates language reflecting principles established through the Supreme Court and other significant court decisions that require the provision of community-based services to people with disabilities. The Final Rule will help recipients better understand and comply with their obligations under Section 504 and provide more detail about the right to be served in the most integrated setting appropriate for individuals with disabilities.

Ensuring consistency with judicial and legislative developments and the Americans with Disabilities Act.
The Final Rule incorporates changes needed to reflect amendments to Section 504, enactment of the Americans with Disabilities Act (ADA), and significant case law to ensure consistency:
  • Service animals. Recipients must permit the use of trained service animals except under certain circumstances.
  • Maintenance of accessible features. Facilities and equipment required to be accessible to individuals with disabilities must be maintained in operable working order.
  • Personal services and devices. Requirement to provide services and devices that are customarily provided to individuals without disabilities.
  • Mobility devices. Recipients must permit individuals to use manually powered mobility devices such as wheelchairs in areas open to pedestrian use and power-driven mobility devices, which include, but are not limited to, Segways® and golf carts, under certain circumstances.
  • Communications. Recipients must ensure effective communications with individuals with hearing, vision, and speech disabilities through the provision of auxiliary aids and services. Such aids and services may include qualified interpreters or readers, assistive listening devices or systems, text telephones, captioning, and information in Braille, large print, or electronically for use with a computer screen-reading program.
  • Direct threat. In cases of a direct threat to the health and safety of others, recipients are not required to permit individuals in programs or activities.
  • Retaliation and coercion. Recipients may not retaliate against an individual for making a complaint or objecting to any act or practice made unlawful by Section 504.
  • Limitations. The Final Rule reiterates that recipients need not take actions if those actions would result in a fundamental alteration in the nature of their program or in undue financial and administrative burdens. However, a recipient must still take other actions that would not result in such alteration or burdens but would nevertheless ensure that people with disabilities receive benefits or services to the maximum extent possible.

DOJ’s Proposed Rule on MDE for State and Local Governments
The Final Rules addresses accessibility of MDE, but if the DOJ’s rule is finalized there would be even more requirements for accessible MDE for state and local governments. Significant highlights of the rule for providers to be aware to anticipate further modifications to protect people with disabilities include the following:
  • Adopting US Access Board Standards. DOJ’s rule would require adoption of the Access Board’s MDE standards as a technical requirement for accessible MDE. These standards provide specific requirements for MDE accessibility in physician offices, clinics, emergency rooms, hospitals, and other medical settings and under the proposed rule the standards would be enforceable by the DOJ under the ADA.
  • Prohibition of Denial of Services for Lack of Accessible MDE. DOJ’s proposed rule prohibits healthcare-providing state and local government entities from denying services to patients with disabilities because of a lack of accessible MDE. It also prohibits state and local government healthcare providers from requiring a patient with a disability to bring someone to assist during an examination.
  • Newly Required MDE. The proposed rule requires that all MDE that state and local government entities purchase, lease, or otherwise acquire after the rule is implemented be accessible until they have a sufficient amount of accessible MDE, which the rule proposed to be at least 20% of equipment in mobility-treating facilities and at least 10% of other equipment. The proposed rule states that these entities do not need to make changes, including purchasing, leasing, or acquiring accessible MDE, if doing so would be a fundamental alteration or cause undue financial and administrative burdens.
  • Requirements for Existing MDE. The proposed rule does not require state and local government entities to make all their existing MDEs accessible. Instead, the proposed rule requires that services, programs, or activities of state and local government entities, when viewed in their entirety, be readily accessible and usable by individuals with disabilities, and the proposed rule requires providers to take meaningful actions to ensure accessibility when retrofitting existing MDE is unduly burdensome.
  • Staff Competency. The proposed rule requires state and local government entities to ensure their staff are qualified to successfully operate accessible MDE, assist with the transfer and positioning of individuals with disabilities, and conduct the rule’s requirements for existing MDEs without individuals with disability bringing a caregiver.
If DOJ’s proposed rule is adopted as written, state and local government entities that purchase, lease, or otherwise acquire MDE will be accessible until the entity has enough equipment to satisfy the rule’s 20% and 10% scoping requirements previously described. Moreover, within two years after the publication of the final rule, state and local government entities that use exam tables or weight scales would be required to have at least one exam table or weight scale that meets the MDE standards.

Failure to comply with Title II may result in penalties, such as fines of up to $75,000 for a single violation, $150,000 for additional violations, and the risk of legal action brought by individuals claiming discrimination.

Conclusion
Ensuring accessibility and appropriate medical care for people with disabilities is set to be a topic of scrutiny of HHS’ OCR in the coming years and compliance with new regulations is not straightforward. Providers should review current policies on the books and talk to practitioners about how the treatment of people with disabilities is currently underway and collaborate to devise compliant and practicable ways of operating. Additionally, providers need to review their current MDE and access policies for accessibility and the financial aspects of upgrading to become compliant. A review for this sort of compliance can be very nuanced and time-consuming, so please feel free to reach out if you need assistance.
For additional details, please reference the final rule here at Federal Register: Public Inspection: Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance and the proposed DOJ rule here at Federal Register: Nondiscrimination on the Basis of Disability; Accessibility of Medical Diagnostic Equipment of State and Local Government Entities.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.