As I anticipated, it was not possible for me to get a blog entry up last week with all the traveling I was doing. However, I am back now. Recently, HHS came out with their final 504 regulations, which we previously blogged on the proposed regulations here. There were a few changes that are worth noting but for the most part, the rule is pretty close to the proposed rule. Accordingly, the blog entry is divided into categories and they are: what stayed the same (with a few modifications, you can find a very similar list in the final regulation blog entry, here); what changed; and thoughts/takeaways. As usual, the reader is free to focus on any or all of the categories. The final regulation can be found here.

I

What Stayed the Same

1. The definition of disability is to be construed broadly. This area of the final regulations, including its rules of construction, matches up pretty well with the EEOC approach to disability in their title I regulations.
2. “Handicap,” his 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 regarded as is not entitled to reasonable accommodations/modifications, which even the final regulation notes.
4. 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.
5. 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).
6. Record of disability is to be defined broadly.
7. In the regarded as prong of the definition of a disability, transitory and minor is an objective standard.
8. 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.
9. 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.
10. The final regulations adopt title II of the ADA final regulations on how a qualified person with a disability is defined.
11. As the final 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.
12. 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.
13. With respect to existing facilities, the final regulations take the DOJ title II final implementing regulations approach by focusing on program accessibility.
14. 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 and medical treatment, which uses the term, “on the basis of.”
15. In the medical treatment section of the final 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.
16. 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).
17. 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.”
18. 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.”
19. 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. Can’t use IQ alone as a basis for discriminatory decisions.
20. 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 final 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.
21. Surcharges are out.
22. Discrimination is prohibited against people who associate with a person with a disability.
23. 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.
24. Perfectly okay to discriminate against an individual currently illegally using drugs. What current user means is complicated.
25. The fimal 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.
26. Power chairs can go anywhere but there are factors to consider when determining whether power chairs can be restricted where they go.
27. Direct threat matches up with EEOC, DOJ, and Supreme Court opinions.
28. 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 final 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.
29. 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.
30. With respect to web and mobile phone accessibility, HHS adopts the DOJ final regulation on title II of the ADA, which we discussed here.
31. 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.
32. 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.
33. 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.
34. 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.
35. Throughout the final 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.
36. U.S. Access Board is coming up with regulation dealing with kiosks and HHS will defer to them. The final regulations have a general nondiscrimination statement with respect to kiosks.

II

What Changed

1. Architectural accessibility means using the 2010 ADAAG standards. For what is an alteration, see this blog entry.
2. Lease renewals are also subject to medical diagnostic equipment accessibility standards.
3. The final rule replaced the phrase “emotional or mental illness,” with “mental health condition.” It also replaces the phrase “emotional illness,” with “mental health condition.” This should not be a surprise to those who read my thoughts/takeaways section on the proposed rule.
4. Several changes were made to bring web related accessibility concerns in line with the DOJ final rule on web accessibility and mobile applications for title II entities.
5. Most integrated setting means a setting providing individuals with disabilities the opportunity to interact with nondisabled person to the fullest extent possible.
6. 508 standards mean the standard for information and communication technologies found at 36 C.F.R. Part 1194 by the US Access Board per their authority.
7. “Operates a general hospital or outpatient facility,” is replaced with “operates a healthcare facility.”
8. Adopts the term, “substance use disorder.”
9. Replaces “suffering from a medical condition, with “has a medical condition.”
10. Circumstances in which the recipient has a legitimate, nondiscriminatory reason for denying or limiting a service or where the disability renders the individual not qualify for the treatment may include circumstances in which the recipient typically declines to provide the treatment to any individual, or reasonably determined based on current medical knowledge or the best available objective evidence that such medical treatment is not clinically appropriate for particular individual.
11. All services offered or provided by a child welfare entity are covered.
12. Recipients of federal funds may not, “require children, on the basis of disability, to be placed outside the family home through custody relinquishment, voluntary placement, or other forfeiture of parental rights in order to receive necessary services.”
13. Evaluations and risk assessments must be tailored to assess parenting capabilities and support needs, rather than the disability itself.
14. A recipient of federal funds must also ensure that test, assessment, and other evaluation tools and materials used for the purpose of assessing or evaluating parental ability are based upon evidence or research, are conducted by a qualified professional, and are tailored to assess actual parenting ability in specific areas of disability -related needs.
15. Parenting evaluations must be fully accessible to people with disabilities and cannot be based upon a single general intelligence quotient or manager of the person’s disability, rather than their parenting ability.
16. Assessments of parents or children must be individualized and based upon the best available objective evidence.
17. Perfectly okay to discriminate based upon the current illegal use of drugs. As mentioned above, what current illegal use of drugs means is far from clear. See this blog entry for example.
18. Recipients must administer a program or activity in the most integrated setting appropriate to the needs of a qualified person with the disability. The integrated setting requirement extends to congregate setting populated primarily by individuals with disabilities, and may be characterized by regimentation and daily activities, lack of privacy or autonomy, or policies or practices limiting visitors or limiting individuals ability to engage freely in community activities and to manage their own activities of daily living.
19. Effective communication rules (the primary consideration rule is adopted), apply regardless of size of the entity receiving federal funds.
20. With respect to the web and mobile apps, the rule adds language that a recipient cannot discriminate directly or through contractual, licensing, or other arrangements. Language also added making sure that the obligation to make website and mobile apps accessible is a continuing obligation.
21. Language added clarifying that the exception for accessibility does not apply where a third-party is posting on behalf of the recipient due to contractual, licensing, or other arrangements.
22. With respect to requirement for web and mobile accessibility, WCAG 2.1 level AA is the standard. The key is compliance and not “full compliance,” as it was stated in the proposed rule.
23. A recipient not in compliance with the web accessibility and mobile app rule does have a defense if they can demonstrate that the noncompliance has a minimal impact on access. Whether there is a minimal impact on access, depends on whether the noncompliance affects the ability of individuals with disabilities to access the same information, engage in the same interaction, conduct the same transaction, and otherwise participate in or benefit from the same programs and activities with substantially equivalent timelines, privacy, independence, and ease of use.

III

Thoughts/Takeaways

1. The ADA is a nondelegable duty!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
2. The HHS final regulations with respect to web accessibility and mobile app accessibility matches up with the DOJ title II regulations on the same topic, which we discussed here.
3. I will be very interested to see if the final regulation dealing with what noncompliance means with respect to web accessibility and mobile apps (i.e. minimal impact on access and how to go about thinking about that), makes its way into website litigation case law.
4. HHS says that removing the phrase “full compliance,” and replacing it with “compliance,” doesn’t change the meaning. However, I think that change is very significant. In the title III architectural barriers area, the ADAAG is essentially a strict liability statute. By making this change in the wording, HHS is making it clear that WCAG 2.1 level AA is not a strict liability statute in all situations. They do the same with respect to discussing how noncompliance is okay if there is a minimal impact on access.
5. Causation is still a mess. §504 is quite clear that the causation standard is “solely by reason of.” As we know from our discussion in Bostock, solely by reason of must emphatically have a different meaning than “on the basis of,” “by reason of,” or even, “because of.” The statute couldn’t be more plain. As a result, the HHS final regulations most likely go too far with respect to causation when it uses other language besides, “solely by reason of,” when discussing causation.
6. The added language dealing with integrated settings is very much an implicit shot at sheltered workshops.
7. The accessibility standards for medical equipment also applies to lease renewals.
8. Direct threat concepts is expanded into other areas so as to require individualized assessments based on the actual facts.
9. There is a difference between ADAAG and Americans with Disabilities Act Architectural Standards. The standards are ADAAG provisions approved by DOJ. ADAAG is what is put out by the Architectural Access Board. The two are very close though not identical. I’m not sure I understand the HHS focus on standards v. the guidelines.