Before getting started on the blog entry for the day, I do want to take this opportunity to wish those who celebrated the Jewish new year, a happy new year.

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.

If the proposed regulations wind up resembling these proposed regulations, it will revolutionize the way people with disabilities are dealt with by entities covered by U.S. Department of Health and Human Services. In particular, the regulations will fundamentally change how people with disabilities are treated in at least the following areas: medical treatment; tools used to decide who gets what services when it comes to medical care (value assessment methods); child welfare programs and activities; web and mobile accessibility (basically matching up with title II proposed regulations from DOJ); ability to use medical diagnostic equipment; ability to be served in the most integrated setting; adoption and foster care; service animals (basically matching up with DOJ title II and title III regulations); effective communications (basically matching up with DOJ’s title II regulations); and building design. As usual, the blog entry is divided into categories, and they are: proposed regulation; call for comments; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

I

Proposed Regulations

1. The definition of disability is to be construed broadly. This area of the proposed regulations, including its rules of construction, matches up pretty well with the EEOC approach to disability in their title I regulations.
2. “Handicap,” is history and “disability,” is used instead.
3. Very bizarre how the regulations say that regarded as prong should be the first option for people with disabilities. I find it bizarre because a person claiming regarded as is not entitled to reasonable accommodations/modifications, which even the proposed regulation notes.
4. In one section of the definition section of the proposed regulation, the term “emotional or mental illness,” appears. In the very next section, only the term “emotional illness,” appears. Both terms are stigmatizing. A person with mental health conditions might be better. Many people with disabilities having mental health conditions are now gravitating to the term, “neurodivergent.”
5. Certain physical impairments are per se disabilities under the ADA and those include: deafness; blindness, intellectual disabilities; mobility impairments; autism spectrum disorder; cancer; cerebral palsy; diabetes; epilepsy; muscular dystrophy; multiple sclerosis; HIV; major depressive disorder; bipolar disorder; posttraumatic stress disorder; traumatic brain injury; obsessive-compulsive disorder; and schizophrenia.
6. The outcomes a person can achieve have nothing to do with whether they have a disability (an example I thought of is in the medical standardized testing world, testing entities have claimed that a high GPA means a person is not entitled to accommodations for taking the test).
7. Record of disability is to be defined broadly.
8. In the regarded as prong of the definition of a disability, transitory and minor is an objective standard.
9. HHS makes it clear that the exclusion in the ADA for gender identity disorders does not exclude an individual with gender dysphoria. As readers of my blog know, this is a hotly debated topic.
10. A person who is currently illegally using drugs means illegal use of drugs occurring recently enough to justify a reasonable belief that a person’s drug use is current or that continuing use is a real and ongoing problem. As we discussed here, the case law in this area is incredibly complicated.
11. The proposed regulations adopt title II of the ADA final regulations on how a qualified person with a disability is defined. With respect to postsecondary and career and technical education services, qualified looks to academic and technical requirements.
12. As the proposed regulation notes, in many cases all operations of the entity must not discriminate against a person with a disability. The language is taken right out of 29 U.S.C. §794, §504 of the Rehabilitation Act, here.
13. For entities taking HHS funds and an employment situation is involved, the applicable rules are title I of the ADA. You see a similar approach with respect to §501 of the Rehabilitation Act, which applies to federal employees.
14. With respect to existing facilities, the proposed regulations take the DOJ title II final implementing regulations approach by focusing on program accessibility.
15. Architectural accessibility means using applicable ADAAG guidelines and depends upon when the alteration happens (same approach it DOJ regulation). For what is in alteration, see this blog entry.
16. With respect to secondary and adult education, a recipient of HHS funds providing childcare, preschool, elementary and secondary, or adult education may not, on the basis of disability, exclude qualified individuals with disabilities and must take into account the needs of such persons in determining the aids, benefits, or services to be provided. I find this provision very confusing because §504 uses a causation standard of “solely by reason of.” After Bostock, which we discussed here, “solely by reason of,” must have a very different meaning than “because of,” “by reason of,” and “on the basis of.” Same concern with the nondiscrimination provision against an individual with a substance or alcohol use disorder, which uses the term, “because of.” Also, same concern with the nondiscrimination provision in medical treatment, which uses the term, “on the basis of.”
17. In the medical treatment section of the proposed regulation, several things, in addition to the causation concern noted above, are worth noting: 1) An HHS recipient may not deny or limit medical treatment to a qualified individual with a disability when the denial is based on (see causation concern above): A) bias or stereotypes about a patient’s disability; B) judgment that the individual will be a burden on others due to the disability, including, but not limited to caregivers, family, or society; or C) a belief that the life of a person with a disability has lesser value than the life of a person without a disability, or that life with a disability is not worth living; 2) a recipient may not deny or limit clinically appropriate treatment to a person with a disability if that treatment would be offered to a similarly situated individual without an underlying disability; 3) the recipient may not, on the basis of disability (see above concerns with causation), provide a medical treatment to an individual with the disability where it would not provide the same treatment to an individual without a disability unless the disability impacts the effectiveness, or ease of administration of the treatment itself, or has a medical effect on the condition to which the treatment is directed.
18. In exercising professional judgment to deny certain treatment, an individualized analysis is necessary and must be based upon current medical knowledge or the best available objective evidence that such medical treatment is not clinically appropriate for a particular individual. (HHS is essentially incorporating how direct threat is determined per Supreme Court opinions and DOJ/EEOC regulations into denial of treatment decisions).
19. Value assessment methods cannot screen out persons with disabilities. This particular section also has the same issue with causation when it uses the term, “on the basis of disability.”
20. With respect to children, parents, caregivers, foster parents, and prospective parents and the child welfare system, causation is, “on the basis of disability.” Again, as noted numerous times above, §504 in 29 U.S.C. §794 doesn’t work that way, i.e. causation is, “solely by reason of.”
21. With respect to children, parents, caregivers, foster parents, and prospective parents and the child welfare system, discrimination includes: 1) decision based on speculation, stereotypes, or generalizations that a parent, caregiver, foster parent, or prospective parent, because of (as mentioned above, “because of,” is not the same as, “solely by reason of),” the disability, cannot safely care for a child; and 2) decision based upon speculation, stereotypes, or generalizations about a child with a disability. You also can’t use IQ alone as a basis for discriminatory decisions.
22. Interestingly enough, in the general prohibitions against discrimination section, causation does match up with §504 statutory terms. However, in the very next section when it comes to a recipient directly or through contractual, licensing, or other arrangements engaging in various discriminatory practices, the term used is, “on the basis of disability.”
23. Much of the general requirements section matches up with title II DOJ final implementing regulations pretty closely. Of particular note, are the screen out provisions and the adoption of a title II final implementing regulation that is very significant (I certainly have found it significant in my practice). In particular, the proposed regulations make it discriminatory to aid or perpetuate discrimination against a qualified individual with a disability by providing significant assistance to an agency, organization, or person that discriminates on the basis of disability in providing any aid, benefit, or service to beneficiaries of the recipient’s program.
24. Surcharges are out.
25. Discrimination is prohibited against people who associate with a person with a disability.
26. Legitimate safety requirements are okay if necessary for the safe operation of the programs or activities. However, those safety requirements must be based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.
27. Perfectly okay to discriminate against an individual currently illegally using drugs. What current user means is complicated.
28. There is an inconsistency between HHS’s discussion of its proposed regulations and the actual proposed regulation when it comes to service animals. In the discussion, they talk about only two questions. However, in the proposed regulation itself, they clearly focus on two inquiries. Inquiries and questions are not at all the same thing. The actual proposed regulation dealing with service animals matches up precisely with the DOJ final implementing regulations on service animals in title II and title III, including the way it deals with miniature horses.
29. Power chairs can go anywhere but there are factors to consider when determining whether power chairs can be restricted where they go.
30. Direct threat matches up with EEOC, DOJ, and Supreme Court opinions.
31. Programs or activities receiving federal financial assistance from HHS must provide services in the most integrated environment appropriate to the needs of a qualified person with a disability. Particular violations of the integration proposed regulations include: A) establishing or applying policies or practices that limit or condition individuals with disabilities access to the most integrated setting appropriate to their needs; B) providing greater benefits or benefits under more favorable terms in segregated setting than in integrated settings; C) establishing or applying more restrictive rules and requirements for individuals with disabilities in integrated settings then for individuals with disabilities in segregated settings; and D) failure to provide community-based services resulting in institutionalization or serious risk of institutionalization. That includes but is not limited to: planning, service design, funding, or service implementation practices that result in institutionalization or serious risk of institutionalization. Individuals with disabilities need not wait until the harm of institutionalization or segregation occurs in order to assert the right to avoid unnecessary segregation. See also this blog entry.
32. With respect to effective communication, HHS adopts DOJ’s title II effective communication rules. Of particular importance, is that HHS adopts the primary consideration rule of title II.
33. With respect to web and mobile phone accessibility, HHS adopts the DOJ proposed regulation on title II of the ADA, which we discussed here.
34. Medical diagnostic equipment must be accessible to people with disabilities. I know people who have been working on this issue for years. It is a real game changer for persons with disabilities.
35. With respect to medical diagnostic equipment, no qualified individual with a disability shall, on the basis of disability (causation concerns again), be excluded from participation in, be denied the benefits of the programs or activities of recipient offered through or with the use of medical diagnostic equipment because the recipient’s medical diagnostic equipment is not readily accessible to or usable by persons with disabilities.
36. Medical diagnostic equipment purchased, leased, or otherwise acquired after 60 days after the final rule has to meet the standard for accessible medical diagnostic equipment unless and until the recipient satisfies the scoping requirements.
37. By scoping requirements, at least 10% of the total number of medical diagnostic equipment, but not fewer than one unit, of the type of equipment in use must meet the standards for accessible medical diagnostic equipment. If the provider focuses on mobility, then the number rises to 20%. Within two years after the final rule gets published, recipients must purchase, lease, or otherwise acquire at least one examination table meeting the standard for accessible medical diagnostic equipment if the recipient uses at least one examination table. They also must acquire at least one weight scale meeting the standard for accessible medical diagnostic equipment if the recipient uses at least one weight scale. With respect to medical diagnostic equipment, HHS adopts a program accessibility approach to existing medical diagnostic equipment.
38. Throughout the proposed regulation, if the recipient decided to argue a fundamental alteration or an undue burden, they have to do everything short of that. Also, HHS adopts the DOJ title II final implementing regulations requiring certification from the head of a recipient or their designee after considering all resources available for use in the funding and operation of the program or activity and accompanied by a written statement of the reasons for reaching that conclusion.
39. U.S. Access Board is coming up with regulation dealing with kiosks and HHS will defer to them.

II

Comments Requested

HHS is asking for comments throughout its proposed regulations on such topics as:

1. What is the best way of articulating distinctions factoring in disabilities into treatment v. not providing treatment because of the disability? In other words, what is the appropriate balance between prohibiting discriminatory conduct and assuring legitimate professional judgment?
2. Examples of discriminatory provision of medical treatment to people with disabilities (I would expect a flood of comments on this one).
3. What are the risk and benefits of the proposed regulation?
4. The term “medical treatment,” broad enough to encompass the range of services covered by the nondiscrimination provision?
5. How are value assessment methods, including those not discussed in the proposed regulation, being used to discriminate against people with disabilities?
6. Does the value assessment method nondiscrimination provision have a chilling effect on academic research?
7. Is prohibited activities in child welfare area a complete list? How will the nondiscrimination provisions be implemented by the agencies?
8. Many questions asking for confirmation about the web accessibility approach matching DOJ’s title II proposed regulations (WCAG 2.1 as the standard, time for compliance, education context exceptions, how entities use social media, how to measure compliance, etc).
9. Whether and how to apply existing scoping requirements for patient or resident sleeping room or parking spaces in certain medical facilities to medical diagnostic equipment.
10. Are there any meaningful differences between patient or resident sleeping rooms, accessible parking, and medical diagnostic equipment that HHS should consider when finalizing scoping requirements?
11. Is the scoping requirement of 20% sufficient to meet the needs of persons with disabilities since more patients with mobility disabilities may need accessible medical diagnostic equipment than would be to accessible parking?
12. With respect to medical diagnostic equipment, does the program accessibility approach makes sense? Should additional requirements be added? How easy is it for medical diagnostic equipment to be moved or otherwise share between clinics or departments? Two years a sufficient amount of time for compliance?
13. What other methods exist for recipients to make their programs and activities readily accessible and usable by people with disabilities in lieu of purchasing, leasing, or otherwise acquiring accessible medical diagnostic equipment.
14. What are the current leasing practices with respect to medical diagnostic equipment?
15. Should the rule be expanded to medical equipment that is not used for diagnostic purposes? (Expect people with disabilities to weigh in yes on this question). If so, what technical standards should apply? Are there particular types of non-diagnostic medical equipment that should or should not be covered by a final rule?

III

Thoughts/Takeaways

1. Individualized analysis is critical.
2. Stay away from speculation, stereotypes, and generalizations. Rely on objective evidence instead.
3. Don’t forget about the interactive process.
4. Focus on the definition of a disability rather than on any diagnosis.
5. 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.
6. 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.
7. Associational discrimination is a thing under these proposed regulations.
8. Current user of the illegal use of drugs is incredibly complicated.
9. 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.
10. Undue burden requires a certification from the entity.
11. Expect lots and lots of comments to come in from industry groups and persons with disabilities on the proposed regulation.
12. 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?
13. Criteria that screen out people with disabilities, including any technical standards, need to be reviewed very closely.