Fact Sheet: Nondiscrimination on the Basis of Disability Proposed Rule Section 504 of the Rehabilitation Act of 1973

The Department of Health and Human Services (HHS) has issued a proposed rule to advance equity and bolster protections for people with disabilities.  The proposed rule, Discrimination on the Basis of Disability in Health and Human Service Programs or Activities, updates, clarifies, and strengthens the implementing regulation for Section 504 of the Rehabilitation Act of 1973 (Section 504), the statute that 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.

The historic proposed rule provides robust civil rights protections for people with disabilities in federally funded health and human services programs. It 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.  This proposed rulemaking is consistent with Section 504 statutory text, congressional intent, legal precedent, and the Biden-Harris Administration’s priority of advancing equity and civil rights and protecting Americans’ access to health care and human services programs and activities.    

While the Department is undertaking this rulemaking, the current regulation is in effect.  If you believe that you or another party has been discriminated against on the basis of disability, visit the Office for Civil Rights (OCR) portal at https://ocrportal.hhs.gov/ocr/smartscreen/main.jsf to file a complaint online.

Summary of the Proposed Rule

Clarifies the application of Section 504 to several critical areas.

The proposed rule updates the current Section 504 regulations to clarify several crucial areas not explicitly addressed in that rule:

• Medical treatment.  This section addresses current pervasive discrimination on the basis of disability in accessing medical care, which leads to significant health disparities and poorer health outcomes for individuals with disabilities.  This pattern of discrimination can be found in a wide variety of contexts including organ transplantation, life-sustaining treatment, crisis standards of care that are triggered when resources are limited, and participation in clinical research.  The proposed rule ensures that medical treatment decisions by entities that receive Federal financial assistance from the Department (“recipients”) 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.  Value assessment methods can play an important role in determining whether a particular intervention such as a medicine or treatment will be provided and under what circumstances.  They are an increasingly significant tool for cost containment and quality improvement efforts.  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.  The proposed rule prohibits the discriminatory use of such methods.
• Child welfare programs and activities.  Children, parents, caregivers, foster parents, and prospective parents may encounter a wide range of discriminatory barriers when accessing critical child welfare programs and activities that are designed to protect children and strengthen families.  This section sets forth detailed requirements to ensure nondiscrimination in a wide variety of areas including parent-child visitation, reunification services, child removals and child placements, guardianship, parenting skills programs, foster and adoptive parent assessments, and in and out-of-home services.
• Web and mobile accessibility.  As technology becomes a more widespread way to deliver health and human services programs and activities, particularly through websites, applications, and self-service kiosks, it is vital to ensure that web content and mobile applications are readily accessible to and usable by individuals with disabilities.  The proposed rule defines what accessibility means for web and mobile applications and sets forth specific technical standards for compliance with Section 504, using the same standards in a recently proposed rule from the Department of Justice under Title II of the Americans with Disabilities Act.
• Accessible medical equipment.  People with disabilities continue to experience barriers to accessing medical care because of inaccessible medical equipment.  Barriers such as exam tables that are not height adjustable, mammography machines that require a person to stand, and weight scales that do not accommodate wheelchairs result in inequities and exclusion from basic health services for individuals with disabilities, contributing to poor health outcomes.  The proposed rule establishes enforceable standards for accessible medical diagnostic equipment, a significant and concrete step toward addressing health disparities experienced by people with disabilities.  It also requires that within two years of the rule’s effective date, recipients that use an examination table in their program or activity have at least one accessible exam table, and recipients that use a weight scale in their program or activity have at least one accessible weight scale.
• Integration.  The existing Section 504 regulation requires programs and activities to be administered in the most integrated setting appropriate to the  needs of the person with a disability.  The proposed rule incorporates language reflecting principles established through Supreme Court and other significant court decisions that require the provision of community-based services to persons with disabilities when such services are appropriate, the affected persons do not oppose community-based treatment, and the placement in a community setting can be reasonably accommodated.  The proposed 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.

Improves consistency with major judicial and legislative developments including the Americans with Disabilities Act.

The proposed rule incorporates changes needed to reflect amendments to Section 504, enactment of the Americans with Disabilities Act (ADA), and significant case law.  Most HHS recipients have been covered by the ADA since 1991.  New sections added to ensure consistency are:

• Service animals:  Recipients must permit the use of trained service dogs 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:  Personal services and devices are not required unless they 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 under certain circumstances.
• Communications:  Recipients must ensure effective communications with individuals with hearing, vision, and speech impairments through the provision, when necessary, of auxiliary aids and services such as qualified interpreters, text telephones, and information in Braille, large print, or electronically  for use with a computer screen-reading program.
• Direct threat:  Recipients are not required to permit individuals in programs or activities when they pose a direct threat as described in the proposed rule.
• Illegal use of drugs:  Nondiscrimination requirements generally do not apply to individuals based on their current illegal use of drugs.
• Retaliation and coercion:  Recipients may not retaliate against an individual for having made a complaint or objected to any act or practice made unlawful by Section 504
• Standards: Recipients building new facilities or altering existing facilities must comply with the 2010 Standards for Accessible Design, the standard issued by the Department of Justice.
• Limitations:  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.

Public Comment

The proposed rule seeks comment on a variety of issues to better understand individuals’ experiences with health care and human services discrimination on the basis of disability and recipients’ experiences in complying with federal civil rights laws.  The comment period will be open for 60 days for members of the public to provide comments on the proposed rule.  OCR will consider those comments as it drafts a final rule to implement Section 504.

The Department will also be conducting a Tribal consultation meeting on October 6, 2023, from 2 – 4 pm ET.  To participate, you must register in advance at Meeting Registration - Zoom (zoomgov.com).

The NPRM may be viewed or downloaded at Public Inspection: Discrimination on the Basis of Disability in Health and Human Service Programs or Activities.

You can submit comments, identified by RIN 0945-AA15, electronically through  http://www.regulations.gov, or by mail or by hand delivery or courier to the following address only:  U.S. Department of Health and Human Services, Office for Civil Rights, Attention: 504 NPRM (RIN 0945-AA15), Hubert H. Humphrey Building, 200 Independence Avenue SW, Washington, DC 20201.

For more information, please go to OCR’s website at www.hhs.gov/ocr.