There is a new entry on Federal Register for addressing disability. You may submit electronic comments at http://www.regulations.gov by searching for the Docket ID number HHS–OCR–2023–0013. Follow the instructions at http://www.regulations.gov online for submitting comments through this method. For more info contact Molly Burgdorf, Office for Civil Rights, Department of Health and Human Services at (202) 545–4884 or (800) 537–7697 (TDD), or via email at [email protected].
Thanks to William Goren, attorney — https://www.understandingtheada.com/
I spent last Friday reading the proposed §504 regulations, which runs a little over three hundred pages, put out by the U.S. Department of Health and Human Services. The regulations have not been updated in decades and this is their update. The proposed regulations can be found here. Comments on the regulations are due November 13, 2023. Due to the way administrative law works, getting the proposed regulation changed means getting in comments now. It is very difficult to affect regulations once they are finalized.
While We Have You….
Worth noting related ETSI and Europe developments. The latest European accessibility standard with the EN 301 549 V3.2.1 2021-03 for ICT products and serivces and the EN 17 210 for the built environment. Work is ongoing to update these standards and develop new standards following a standardisation request from the European Commission for accessibility requirements of products and services in support of Directive (EU) 2019/882. You can find this standardisation request here: https://ec.europa.eu/growth/tools-databases/enorm/mandate/587_en — Specifically, the schedule of revision of the EN 301 549 is publicly available at the following link: https://portal.etsi.org/eWPM/index.html#/schedule?WKI_ID=64282
Ultimately the HHS is going to adopt the U.S. Access Board guidelines to be issued this December. If HHS funding is involved in any way then this new proposed rule will apply and all of this is directed towards Health.
- Telehealth would seem to be “under the gun” here. There are many devices that may twist and/or be physically manipulated.
- Chromebooks for Education. Lots of website content there.
- They are adopting WCAG 2.1 which is standard
Comments by William D. Goren
- Individualized analysis is critical.
- Stay away from speculation, stereotypes, and generalizations. Rely on objective evidence instead.
- Don’t forget about the interactive process.
- Focus on the definition of a disability rather than on any diagnosis.
- The confusion in the proposed regulations over causation definitely needs to be clarified because “solely by reason of,” “by reason of,” “on the basis of,” and “because of,” are not equivalent to each other. That is, while on the basis of, “because of,” “by reason of,” may mean the same thing, “solely by reason of,” definitely means something different, as discussed here.
- Healthcare professionals will need to undergo substantial retraining with respect to the worth of individuals with disabilities and how curing or fixing the disability is not necessarily the name of the game when it comes to treating people with disabilities.
- Associational discrimination is a thing under these proposed regulations.
- Current user of the illegal use of drugs is incredibly complicated.
- With respect to service animals, it is two inquiries and not two questions. HHS really needs to avoid the unnecessary confusion in its final rule that presently exists in the proposed regulation and its discussion of same.
- Undue burden requires a certification from the entity.
- Expect lots and lots of comments to come in from industry groups and persons with disabilities on the proposed regulation.
- The proposed regulations certainly would be covered by the major question doctrine, which we discussed here. Is the grant of authority for the regulations sufficient to allow HHS to come up with such game changing regulations?
- Criteria that screen out people with disabilities, including any technical standards, need to be reviewed very closely.
- The Department proposes to amend its existing regulation implementing section 504 for federally assisted programs and activities to address the obligations of recipients of Federal financial assistance to comply with section 504 across a variety of contexts. The proposed rule clarifies the application of section 504 to several areas not explicitly addressed through the existing regulation, including medical treatment decisions; the use of value assessments; web, mobile, and kiosk accessibility; and accessible medical equipment. The proposed rule also expands on and clarifies the requirements in the current regulation applicable to federally funded child welfare programs and activities.
- The Department is aware that some recipients, including doctors’ offices, hospitals, and social service offices, use kiosks or similar self-service transaction machines for members of the public to perform a number of tasks including checking in for appointments, providing information for the receipt of services, procuring services, measuring vitals, and performing other services without interacting directly with recipient staff.
- The use of inaccessible kiosks that result in delays checking in, privacy concerns, and even the complete inability of people with disabilities to check in for their appointments results in avoidable lack of access to health and human services.
- The Department has received information from individuals with physical disabilities who have experienced difficulty reaching the controls on kiosks, or operating controls that require tight grasping, pinching, or twisting. Individuals with hearing loss may not be able to operate a kiosk effectively if audio commands or information are not provided in an alternative format. The Department is aware of the barriers created by inaccessible kiosks, particularly in health care, so the proposed rule includes a provision specifically addressing recipients’ existing obligations with respect to kiosks.
- The Department is not proposing specific technical requirements for kiosks, but proposes to include general language recognizing that section 504 prohibits recipients from discriminating on the basis of disability in their programs or activities provided through kiosks because of the inaccessibility of those devices.
- Here is “bailout” provision — Recipients that use kiosks may make their programs accessible by instituting procedures that would allow persons with disabilities who cannot use kiosks because of their inaccessible features to access the program without using kiosks. For example, a clinic or a social services office may allow persons with disabilities to go directly to the personnel at the main desk to register for necessary services. Such work-around procedures must afford persons with disabilities the same access, the same convenience, and the same confidentiality that the kiosk system provides.
- In instances where kiosks are closed functionality devices that do not rely on web content or mobile apps, the proposed technical standards in § 84.84 will not apply. Under these circumstances, recipients are still obligated to ensure that individuals with disabilities are not excluded from participation in, denied the benefits of, or otherwise subjected to discrimination in any program or activity of the recipient, including the information exchange that would occur at the kiosk.
- The Department is aware that the U.S. Access Board is working on a rulemaking to amend the ADA Accessibility Guidelines to address the accessibility of fixed self-service transaction machines, self-service kiosks, information transaction machines, and point-of-sale devices. The Access Board issued an advance notice of proposed rulemaking on these issues in September 2022 and heard from more than 70 commenters. The Board is now in the process of developing a notice of proposed rulemaking, which may be issued by December 2023. Once these guidelines are final, to be enforceable, DOJ and the U.S. Department of Transportation would have to adopt them, via separate rulemakings, before they would become enforceable standards for devices and equipment covered by the ADA. Similarly, HHS will consider adopting these guidelines under section 504 once they are finalized.
- Definition of kiosks proposed — The Department proposes to add a definition of “kiosks.” Kiosks are self-service transaction machines made available by recipients at set physical locations for the independent use of patients or program participants in health or human service programs or activities. The devices usually consist of a screen and an input device, either a keyboard, touch screen or similar device, onto which the program participant independently types in or otherwise enters requested information. In health and human service programs, recipients often make kiosks available so that patients or program participants can check in, provide information for the receipt of services, procure services, have their vital signs taken, or perform other similar actions. These devices may rely on web content or mobile apps or may be closed functionality devices, i.e., devices that do not rely on web content or mobile apps. Definitions (kiosks) Question 2: The Department requests comment on whether a definition of “kiosks” is necessary, and if so, requests comment on the Department’s proposed definition in § 84.10 and any suggested revisions to it.
Section 504 prohibits discrimination on the basis of disability in programs and activities  that receive Federal financial assistance as well as in programs and activities conducted by any Federal agency. Section 504 provides:
No otherwise qualified individual with a disability in the United States, as defined in Section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Post Office.
The Office for Civil Rights (OCR) in HHS enforces section 504 as well as two other statutes that prohibit discrimination on the basis of disability. Title II of the Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability in, among other areas, all health care and social services programs and activities of State and local government entities. OCR also enforces section 1557 (section 1557) of the Patient Protection and Affordable Care Act (ACA), which prohibits discrimination on various bases including disability in any health program or activity, any part of which receives Federal financial assistance, including credits, subsidies, or contract of insurance or under any program or activity that is administered by an Executive Agency or any entity established under Title I of the ACA.