On September 14, 2023, the U.S. Division of Well being and Human Providers (“HHS”) revealed a proposed rule updating Part 504 of the Rehabilitation Act of 1973 (“Part 504”). The brand new rule entitled Discrimination on the Foundation of Incapacity in Well being and Human Service Packages or Actions(the “Proposed Rule”) is the primary main regulatory replace to Part 504 in practically 50 years.  Part 504 prohibits discrimination towards people on the premise of incapacity in packages and actions that obtain Federal monetary help (“FFA”) or are performed by a Federal company.  Part 504 covers all well being care and human companies packages and actions funded by HHS, from suppliers, like hospitals and medical doctors that settle for Medicare or Medicare, to state little one welfare packages, in addition to Medicare Benefit Plans, and Medicaid Managed Care Plans.

In a press launch, HHS Secretary Xavier Becerra described the Proposed Rule as “advanc[ing] justice for folks with disabilities and assist[ing] guarantee they aren’t subjected to discrimination beneath any program or exercise receiving funding from HHS simply because they’ve a incapacity.”  HHS is proposing to amend the regulation to make clear the obligations imposed on packages and actions that obtain FFA, and to enhance consistency with the Individuals with Disabilities Act of 1990 (the “ADA”), the ADA Amendments Act of 2008 (the “ADAAA”), amendments to the Rehabilitation Act, and important case legislation.

Feedback could also be submitted till November 13, 2023.  If in case you have any questions in regards to the proposed rule, or if you happen to want help in submitting feedback to HHS, please attain out to any of the authors of this put up.

New Provisions Addressing Discrimination on the Foundation of Incapacity Beneath Part 504

The Proposed Rule clarifies the applying of Part 504 in a number of key areas highlighted under.

• Medical remedy. To fight incapacity discrimination in medical remedy, the Proposed Rule would explicitly prohibit disability-based discrimination within the context of well being, welfare, and different social companies, underscoring that the prohibition broadly applies to medical remedy selections made by recipients of FFA. These embody, for instance, selections about life-sustaining remedy, organ transplantation, rationing care in emergencies, and different very important medical selections.
• Worth evaluation strategies. To ascertain whether or not a selected intervention, reminiscent of a medication or remedy, might be offered and beneath what circumstances, well being care organizations usually use quite a lot of strategies to guage whether or not the advantages of the intervention outweigh the prices. The Proposed Rule prohibits the usage of worth evaluation strategies that place a decrease worth on life-extension for people with disabilities when that methodology is used to restrict entry or to disclaim aids, advantages, and companies.
• Baby welfare packages and actions.  The Proposed Rule clarifies necessities in HHS-funded little one welfare packages and actions to assist get rid of discriminatory limitations confronted by youngsters, dad and mom, caregivers, foster dad and mom, and potential dad and mom with disabilities, reminiscent of the place recipients are utilizing the presence of a incapacity or a person’s IQ rating alone as a motive for removing of a kid, prohibiting disabled dad and mom from serving as foster dad and mom, or failing to position disabled youngsters who want companies in essentially the most built-in settings applicable to their wants.
• Net and cellular accessibility.  The Proposed Rule defines what accessibility means for net and cellular functions and units forth particular technical requirements for compliance with Part 504, utilizing the identical requirements set forth in a lately proposed rule from the Division of Justice (the “DOJ”) beneath Title II of the Individuals with Disabilities Act.
• Accessible medical tools.  The Proposed Rule adopts the U.S. Entry Board’s accessibility requirements for medical tools to handle equipment-related limitations reminiscent of examination tables which might be inaccessible as a result of they aren’t height-adjustable, weight scales that can’t accommodate folks in wheelchairs, and mammogram machines that require a person to face to make use of them.
• Integration.  The Proposed Rule clarifies obligations to supply companies in essentially the most built-in setting applicable to an individual’s wants.

New & Revised Provisions to Guarantee Consistency with Statutory Modifications, Supreme Courtroom Rulings, and Different Case Regulation

The Proposed Rule additionally seeks to include adjustments which might be essential to mirror developments which have occurred within the fifty years since Part 504’s passage, together with amendments to Part 504, the enactment of the ADA and the ADAAA, and important case legislation.  The Rehabilitation Act (which incorporates Part 504), the ADA, and the ADAAA are carefully linked, and courts have typically interpreted Part 504 persistently with Title II of the ADA. Due to this, the Proposed Rule seeks to create parity between Part 504 and the ADA and ADAAA so as to add readability to Part 504’s utility and scope. 

Most important among the many adjustments are revisions to the definition of “incapacity” to carry Part 504 according to the ADAAA, which sought to make sure that the time period “incapacity” – in each the ADA and the Rehabilitation Act – could be “construed broadly in favor of expansive protection” to the utmost extent potential.  The proposed definition states that, with respect to a person, incapacity means “(i) a bodily or psychological impairment that considerably limits a number of of the main life actions of such particular person; (ii) a file of such an impairment; or (iii) being thought to be having such an impairment as described in paragraph (f) of this part.”  The Proposed Rule would allow a person to determine protection utilizing any of those three prongs.

In mild of the COVID-19 public well being emergency and following 2021 steerage from HHS and the DOJ, the Proposed Rule would add “lengthy COVID” to the checklist of bodily and psychological impairments which can qualify a person as having a incapacity.  The Proposed Rule additionally considerably expands the checklist of main life actions to be thought of in figuring out whether or not an individual has a incapacity and states that the time period “main” “shouldn’t be interpreted strictly.” 

Lastly, to take care of consistency with the ADA, the Proposed Rule seeks so as to add new subparts to 45 C.F.R. Half 84, Nondiscrimination on the Foundation of Handicap in Packages or Actions Receiving Federal Monetary Help. The brand new subparts (Subpart G – Common Necessities and Subpart H – Communications) would come with, for instance, new sections on retaliation or coercion, private companies and gadgets, service animals, and communications.