The US Department of Health and Human Services (HHS), through its Office for Civil Rights (OCR), announced a proposed rule on September 7, 2023, that prohibits discrimination on the basis of disability. The rule, Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance, updates critical provisions that help persons with disabilities access health and human services under Section 504 of the Rehabilitation Act of 1973. The rule, originally published in 1977, advances the promise of the Rehabilitation Act and helps to ensure that people with disabilities are not subjected to discrimination in any program or activity receiving funding from HHS just because they have a disability.
Section 504 prohibits discrimination against otherwise qualified individuals on the basis of disability in programs and activities that receive federal financial assistance or are conducted by a federal agency. According to HHS, since the law was enacted, major legislative and judicial developments have shifted the legal landscape of disability discrimination under Section 504.
HHS is proposing to amend the regulations to update them and clarify obligations in several crucial areas not explicitly addressed in the current regulations, and to improve consistency with the Americans with Disabilities Act, the Americans with Disabilities Amendments Act, amendments to the Rehabilitation Act, and significant case law.
This Notice of Proposed Rulemaking (NPRM) clarifies the application of Section 504 to several critical areas. The proposed rule:
- Ensures that medical treatment decisions are not based on biases or stereotypes about individuals with disabilities, judgments that an individual will be a burden on others, or beliefs that the life of an individual with a disability has less value than the life of a person without a disability;
- Clarifies obligations for web, mobile, and kiosk accessibility;
- Establishes enforceable standards for accessible medical equipment;
- Clarifies requirements in HHS-funded child welfare programs and activities;
- Prohibits the use of value assessment methods that place a lower value on life-extension for individuals with disabilities when that method is used to limit access or to deny aids, benefits, and services;
- Clarifies obligations to provide services in the most integrated setting appropriate to the needs of individuals with disabilities.
While the Department is undertaking this rulemaking the current regulation is in effect. HHS encourages all stakeholders to submit comments through regulations.gov.
Public comments on the NPRM are due 60 days after publication of the NPRM in the Federal Register. The NPRM may be viewed or downloaded at the Federal Register: https://www.federalregister.gov/public-inspection/2023-19149/discrimination-on-the-basis-of-disability-in-health-and-human-service-programs-or-activities.
A fact sheet on the NPRM is available at: https://www.hhs.gov/civil-rights/for-individuals/disability/section-504-rehabilitation-act-of-1973/fact-sheet/index.html.
HHS will host a webinar on the NPRM on September 11, 2023, at 1-1:45 pm ET. Register here: https://hhsacl.zoomgov.com/webinar/register/WN_cbLO2lobQzecAJBkLKbP_A.
Compliance Perspective
Issue
Section 504 of the Rehabilitation Act of 1973 is a national law that protects qualified individuals from discrimination based on their disability. The nondiscrimination requirements of the law apply to employers and organizations that receive financial assistance from any federal department or agency, including the US Department of Health and Human Services (DHHS). These organizations and employers include many hospitals, nursing homes, mental health centers, and human service programs. Section 504 forbids organizations and employers from excluding or denying individuals with disabilities an equal opportunity to receive program benefits and services. It defines the rights of individuals with disabilities to participate in, and have access to, program benefits and services.
Discussion Points
- Review your policies and procedures for prevention of disability discrimination. Ensure that facility policies include prohibiting discrimination on the basis of any disability.
- Train staff about their right to be free from disability discrimination in the workplace. Educate appropriate staff on Section 504 of the Rehabilitation Act of 1973 and how denying admission to potential residents based upon disability could be seen as discrimination. Additionally, train human resource staff on providing reasonable accommodation, including reassignment to vacant positions, when requested by employees who have limitations due to disabilities. Document that these trainings occurred and file each signed document in the employee’s education file.
- Periodically audit for individuals who were denied admission to the facility to ensure that their denial was not in violation of Section 504 of the Rehabilitation Act of 1973 or other federal or state laws. Also periodically audit to ensure that reasonable accommodations are made for any employees needing them, and to ensure any potential candidates with a disability were not discriminated against.
*This news alert has been prepared by Med-Net Concepts, LLC for informational purposes only and is not intended to provide legal advice.*
