The Biden administration has issued a new proposal targeting the discrimination patients with disabilities may face when seeking care from a government-funded healthcare program or activity.
Unveiled Thursday by the Department of Health and Human Services’ (HHS’) Office for Civil Rights (OCR), the proposed rule updates the 46-year-old anti-discrimination requirements of Section 504, which was implemented following the Rehabilitation Act of 1973.
“Today’s rule is long overdue and a major step forward in the fight to ensure that people with disabilities are not excluded from or discriminated against in health care and social services across the United States,” OCR Director Melanie Fontes Rainer said in a news release. “Once again, the Biden-Harris Administration is making clear that we must do better and stand up to improve equitable access to health care, free of discrimination.”
Many of the proposed updates clarify obligations for organizations working with HHS that are not clearly spelled out in Section 504.
Per a fact sheet released by the administration, chief among these is a section ensuring that medical treatment decisions “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.” Similarly, value assessment methods used for cost containment, quality improvement or denial of services and benefits would not be permitted to value individuals lower due to their disability.
Other clarifications to Section 504 cover web, mobile and kiosk accessibility; enforceable standards for accessible medical equipment; requirements for child welfare programs and activities; and obligations “to provide services in the most integrated setting appropriate” for the individual with a disability.
“It’s 2023, yet … some persons with disabilities may have to drive hours to get an accessible mammogram or receive the benefit and advancements of our health care system,” HHS Secretary Xavier Becerra said in the announcement. “This historic proposed rule will advance justice for people with disabilities and help ensure they are not subjected to discrimination under any program or activity receiving funding from HHS just because they have a disability.”
The updates outlined by HHS also reflect “major legislative and judicial developments [that] have shifted the legal landscape of disability discrimination,” including the Americans with Disabilities Act. Among these are sections covering service animals, mobility devices and retaliation and coercion.
The 400-page proposed rule is scheduled to be published in the Federal Register on Sept. 14, after which it will be up for public comment for 60 days.
OCR collaborated with the Administration for Community Living to create the proposed rule. Alison Barkoff, the head of that agency, said in the announcement that the updates are timely in light of the “spotlight” COVID-19 shined on discrimination and barriers to care due to disability.
In early 2022, HHS issued guidance reiterating providers’ obligations to administer care to those with disabilities regardless of their pandemic difficulties.