The Biden Administration has proposed significant updates to Section 504 of the Rehabilitation Act of 1973 rule. The rule, Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance, updates key provisions in Section 504 that help those with disabilities to access health and human services. The rule is described as, “advanc[ing] the promise of the Rehabilitation Act and helps to ensure that people with disabilities are not subjected to discrimination in any program or activity receiving funding from HHS just because they have a disability.”
The proposed rule applies to recipients of financial assistance from the Department of Health and Human Services (HHS) from discriminating on the basis of disability in their programs and activities, including in health care, child welfare, and other human services. From the Federal register summary “The proposed rule includes new requirements prohibiting discrimination in the areas of medical treatment; the use of value assessments; web, mobile, and kiosk accessibility; and requirements for accessible medical equipment, so that persons with disabilities have an opportunity to participate in or benefit from health care programs and activities that is equal to the opportunity afforded others.”
The requirement to have accessible medical equipment was emphasized by Secretary Xavier Berra when announcing the proposed rule. Secretary Xavier Becerra mentioned the challenges that many face and gave an example noting, “Some persons with disabilities may have to drive hours to get an accessible mammogram or receive the benefit and advancements of our health care system. This historic proposed rule will advance justice for people with disabilities and help ensure they are not subjected to discrimination under any program or activity receiving funding from HHS just because they have a disability.”
The Notice of Proposed Rulemaking (NPRM) clarifies the application of Section 504 to several critical areas:
- Medical treatment Ensures that medical treatment decisions are not based on biases or stereotypes about individuals with disabilities, judgments that an individual will be a burden on others, or beliefs that the life of an individual with a disability has less value than the life of a person without a disability.
- Value assessment methods Prohibits value assessment methods may discriminate against individuals with disabilities when they place a lower value on life-extension for individuals with disabilities when that method is used to limit access or deny aids, benefits, or services.
- Child welfare programs and activities Clarifies requirements in HHS-funded child welfare programs and activities.
- Web and mobile accessibility Clarifies obligations for web, mobile, and kiosk accessibility.
- Accessible medical equipment Establishes enforceable standards for accessible medical equipment.
- Integration Clarifies obligations to provide services in the most integrated setting appropriate to the needs of individuals with disabilities.
For health care and human services providers receiving funds from HHS, this is a significant development. Once enacted the need to comply and to demonstrate compliance with the updated section 504 will follow. With proposed requirements ranging from accessible self-service kiosks to accessible medical equipment, the impact of this new rule will be wide-ranging with financial, operational, and practical consequences.
There will likely be new capital investments required by impacted health systems. While many hospitals and healthcare systems have buildings that meet requirements under the Americans with Disabilities Act (ADA), meeting the proposed rule’s requirement to have accessible medical equipment will likely require investments in such equipment. While websites are likely already required to meet ADA regulations on accessibility, there may be further investments required to make onsite kiosks compliant with the proposed rule.
Policies will need to be reviewed and revised to ensure they are not discriminating against disabled persons. The proposed rule aims to end draconian policies and practices that allow medical treatment decisions to be based on biases or judgements about an individual’s disability. To comply with the proposed rule, policies must strictly prohibit medical treatment decisions from being based on beliefs that the life of an individual with a disability has less value than the life of a person without a disability.
Staff will need to receive new training. The proposed rule prohibits value assessments that place a lower value on life-extension for individuals with disabilities when that method is used to limit access or deny aids, benefits, or services. Training will be required to ensure that staff understand updated policies and procedures and to ensure that no informal value assessments are taking place in the provision of care.
Notably, this introduces a new compliance challenge. Once steps have been taken to comply with the new requirements, demonstrating that compliance will follow. Documenting accessible equipment, evidencing policies, completion of staff training, conducting audits, and reporting will be part of complying with the proposed rule. This is a compliance challenge that a robust compliance management solution will be critical to managing. Hospitals and health systems will likely need to invest in technology to support compliance with this proposed rule which once enacted will add to the 600+ discrete regulatory requirements that health systems must comply with today.
Public comments on the proposed rule were due by November 13.
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