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NCD Comments on HHS Section 504 NPRM on Disability Discrimination in Health and Human Services

Monday, November 13, 2023

Submitted electronically to the Director of the HHS Office for Civil Rights and through www.regulations.gov

November 13, 2023

Melanie Fontes Rainer, Director
Office for Civil Rights
U.S. Department of Health and Human Services
200 Independence Avenue, SW
Washington, DC 20201

Re: RIN 0945–AA15, Discrimination on the Basis of Disability in Health and Human Service Programs or Activities

Dear Director Rainer:

The National Council on Disability (NCD) is an independent, bipartisan federal agency charged with providing advice to the President, Congress and federal agencies on matters affecting the lives of people with disabilities. NCD is required to “review and evaluate on a continuing basis - policies, programs, practices, and procedures concerning individuals with disabilities conducted or assisted by Federal departments and agencies…in order to assess the effectiveness of such policies, programs, practices, procedures…in meeting the needs of individuals with disabilities.”[[1]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftn1) NCD also “review(s) and evaluate(s) on a continuing basis new and emerging disability policy issues affecting individuals with disabilities at the Federal, State, and local levels,…including access to health care.”[[2]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftn2)

NCD commends HHS and the Office for Civil Rights (OCR) for issuing this thorough proposed rule to update HHS’ section 504 regulation and for OCR’s steadfast efforts to address long-standing, broad-based health care discrimination experienced by people with disabilities. We are aware of the work that has gone into the development of this document over two Presidential administrations.

Background

For many years NCD has advised HHS, including OCR, about existing physical, programmatic, and attitudinal barriers that continue to prevent many people with disabilities from accessing equitable health care, and the health disparities between people with disabilities and their non-disabled peers.[[3]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftn3) In 2019, when NCD published a 5-report series on bioethics and disability, with the theme that medical treatment decisions and health care policies were frequently infused with disability bias resulting in discriminatory treatment, including denial of needed care and less effective care,[[4]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftn4) OCR had already been responding to complaints alleging violations of section 504 from people with disabilities who were being denied care or not accommodated in their care, and had resolved complaints in some of the areas where NCD described long standing discrimination, including the lack of accessible medical equipment in health care facilities and denial of participation in the organ transplant process. At OCR’s request, soon after we released the reports, NCD provided in-person briefings on each report to the leadership of OCR and the Administration on Community Living (ACL), who shared the concerns we raised.

Only a few months later, the COVID-19 pandemic struck the U.S. and exacerbated the disability discrimination within our health care system and among health care providers. The ableism described in NCD’s bioethics’ reports was on full display in reports by the news media and clearly manifested in Crisis Standards of Care and other medical rationing policies by states, health care systems and hospitals that specifically targeted people with certain disabilities for lack of life-saving care or putting them at the back of the line for care, even though they were disproportionately susceptible to the virus and its worst effects.[[5]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftn5)

On March 18, 2020, NCD sent a letter to OCR sounding an alarm that people with disabilities were already being viewed as expendable and targeted for unequal treatment, and requesting that OCR remind medical providers of their responsibilities to provide non-discriminatory health care to people with disabilities.[[6]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftn6) Advocacy groups also contacted OCR alleging disability discrimination. OCR showed its commitment to protecting the civil rights of people with disabilities by issuing a statement on March 28th, reminding the medical community that its obligation to abide by federal civil rights laws remained in force in times of emergency.[[7]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftn7) The statement most certainly helped to save lives. OCR has continued showing its commitment to protecting the civil rights of people with disabilities throughout the pandemic, including the development of this crucial proposed rule.

In normal course, when NCD responds to proposed rules, as an advisor and sister Federal agency, we provide information from our substantive policy reports to elevate the concerns and experiences of people with disabilities, to make recommendations to ensure a final rule will promote full inclusion and equal opportunity and remedy ongoing discrimination or inequitable treatment. In this case, HHS OCR is very knowledgeable about NCD’s work, and many descriptions and references to our work are incorporated throughout this proposed rule. It is gratifying to see information from several of our reports form an integral part of the new section on Medical Treatment, the new section on Accessible Medical Equipment, and the section on the Child Welfare system.

General Comment

It is imperative that HHS update its Section 504 regulation by clarifying and strengthening the nondiscrimination obligations for recipients of Federal financial assistance (Recipients). As you describe, over 40 years have passed since the existing regulation was promulgated and changes are needed to incorporate important developments that have taken place during this time period, including amendments to the Rehabilitation Act, the enactment of the Americans with Disabilities Act (ADA), the ADA Amendments Act of 2008 (ADAAA), the Affordable Care Act (ACA), and significant court decisions interpreting them. In addition, as was clearly seen during the pandemic, although these federal laws prohibit discrimination against people with disabilities and require recipients to provide people with disabilities nondiscriminatory health care by e.g., modifying policies, practices, and procedures; providing effective communication; and providing physically accessible facilities – programmatic discrimination and attitudinal barriers continue to impede access to federally-assisted programs and activities. Continuing barriers contribute to the significant health disparities and poorer health outcomes that are a reality for many people with disabilities. It is critical that recipients understand their nondiscrimination obligations and what constitutes disability discrimination.

Specific Comments

Medical Treatment

We strongly support the proposed section in its entirety and commend the inclusion of antidiscrimination provisions for organ transplantation, denial of life-sustaining care, crisis standards of care, participation in clinical research, and other forms of medical treatment for people with disabilities, including forced sterilization, a human rights violation against people with disabilities that is still allowed in many states. We have two recommendations for this section.

HHS states that the proposed rule would bar recipients from performing sterilization on the basis of disability to an individual with a disability where they would not provide the same treatment to an individual without a disability, unless it has a medical effect on the condition to which the treatment is directed.[[8]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftn8) We recommend that you provide an example of the meaning of the clause, “… unless it has a medical effect on the condition to which the treatment is directed.” If the intent of this clause is only to allow forced sterilization when it is deemed medically necessary to treat a medical condition, e.g., cancer in the uterus, this should be clarified. A straightforward sentence on reasons for which forced sterilization cannot be ordered for would also be helpful. We also recommend replacing the term ‘treatment’ in this clause with ‘sterilization.’

Second, the examples you provide on discriminatory medical treatment clearly illustrate the types of actions which may be, or are, discriminatory, however, we encourage you to expand them with an example regarding disability discrimination in suicide prevention services.

In our 2019 report, The Danger of Assisted Suicide Laws, we recommended that you issue a regulation that specifically require nondiscrimination in suicide prevention services and states that physicians must treat a request for assisted suicide or any other form of hastened death the same, regardless of whether the patient has a disability. As a part of that nondiscrimination requirement, we recommended that OCR should make clear that all HHS suicide prevention grants and services must comply with existing disability rights laws, including the ADA, Sections 504 and 508 of the Rehabilitation Act, and Section 1557 of the Affordable Care Act.[[9]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftn9) Accordingly, we recommend that you add an example of medical discrimination in the context of suicide prevention in relation to requests for assisted suicide where the practice is legal.

In your Request for Information (Docket No.: HHS-OCR-2021-0004, RIN: 0945-AA15, “Discrimination on the Basis of Disability in Critical Health and Human Service Programs or Activities”), HHS requested information regarding “disability discrimination in psychological or psychiatric treatment, assessments or referrals under standards of care governing the treatment of persons with suicidal ideation or depression.”

We explored just that in our 2019 assisted suicide report. One of the concerns we raised was that physicians’ biases and negative assumptions about the quality of life of people with disabilities, including those with terminal conditions, have resulted in bypassing normal standards of care, e.g., where a physician, or other practitioner, would normally refer a person expressing suicidal ideations for mental health evaluation and suicide prevention services.

However, though assisted suicide requests from people with terminal illness, like most suicide requests, are usually based upon fear and depression, Oregon state data show that in a typical year over twenty years, very small percentages (3.5 percent in 2017; 1.8 percent in 2018) of people requesting lethal prescriptions received psychological evaluation before the prescription was written.[[10]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftn10) In Colorado, only one of 69 people (1.4 percent) was referred for mental health evaluation.[[11]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftn11)

Further justifying inclusion of such an example, is NCD’s examination of 20 years’ worth of Oregon state data, where we found that the top five reasons that doctors record for their patients’ requests for assisted suicides are not pain or fear of future pain, but rather psychological issues that are familiar, mainstream experiences within the disability community – “loss of autonomy” (95.5 percent), “less able to engage in activities” (94.6 percent), “loss of dignity” (87.4 percent), “losing control of bodily functions” (56.5 percent), and “burden on others” (51.9 percent)[[12]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftn12) – and all of which can be addressed with available clinical treatments and long-term services and supports.

This data reinforces the need for referrals for mental health evaluations and informational referrals, consistent with medical standards of care; and demonstrates how the same flawed perceptions, stereotypes, and biases about people with disabilities that can lead to prohibited discrimination in other health care contexts can result in discrimination in the assisted suicide context. A medical practitioner should ask, “Would I be making the same decision for nonreferral if the patient expressing this intent to end their life did not have a disabling condition/disability?” Currently, eleven states have laws which permit physician assisted suicide.

Subpart I: Web, Mobile, and Kiosk Accessibility

NCD fully supports the addition of proposed Subpart I on web, mobile and kiosk accessibility.[[13]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftn13) It is vital to ensure that web content and mobile applications are readily accessible to and usable by individuals with disabilities. Establishing standards for compliance with Section 504 is overdue as many interactions with health care providers and social services providers are already conducted online and through mobile applications, and the use of kiosks in health care settings is growing. Individuals who are blind or have low vision and people who experience cognitive disabilities often face significant barriers attempting to access websites and mobile apps. They should not be denied equal access to health and social service programs and activities because recipients’ web content is not fully accessible at a time in history where most of our interactions are web or app based.

HHS is proposing the same seven exceptions to compliance with the website accessibility requirements that are contained in DOJ’s ADA Title II Website Accessibility NPRM (DOJ NPRM).[[14]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftn14) We are aware that the National Federation of the Blind (NFB) recently provided extensive comments on DOJ’s NPRM, expressing serious concerns about the seven new exceptions that public entities could use to avoid making their web and mobile app content accessible. NFB points out that these exceptions are not needed because the ADA already provides recipients with the defenses of (1) undue burden and (2) fundamental alteration. NCD encourages HHS to heavily consider the views of disability advocacy groups whose constituents will be most impacted by these exceptions. We agree that the defenses of undue burden and fundamental alteration are well known, firmly established, easily applied, and have been used for decades.

Subpart J: Accessible Medical Diagnostic Equipment

NCD fully supports the addition of Subpart J to the existing section 504 regulation to address the lack of accessible medical diagnostic equipment (accessible MDE) in medical facilities. As you detail in the proposed rule, NCD has issued several advisory letters and reports recommending that OCR adopt the U.S. Access Board standards for accessible medical diagnostic equipment (accessible MDE) based on the significant barriers to health care posed by the common lack of accessible MDE in most health care settings. [[15]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftn15) The lack of accessible MDE contributes to a lack of preventive care that is necessary for early diagnosis of diseases and has been linked to poor health outcomes, poorer quality of life, and shorter length of life for people with mobility disabilities. When a person cannot be properly examined because s/he cannot transfer onto an exam table or a diagnostic machine, non-diagnosis and misdiagnosis are likely. Disease and illness that may be treatable if caught early may become worse or incurable, resulting in high human and economic costs. NCD agrees that adding an accessible MDE requirement to the section 504 regulation is a necessary step that will help ensure nondiscriminatory access to critical, and potentially lifesaving, care for people with disabilities. We provide responses to several questions on MDE.

MDE Question 2: The Department seeks public comment on whether different scoping requirements should apply to different types of MDE, and if so, what scoping requirements should apply to what types of MDE.       

Response: Accessible MDE covered under this subpart includes examination tables, examination chairs (including chairs used for eye examinations or procedures, and dental examinations or procedures), weight scales, mammography equipment, x-ray machines, and other radiological equipment commonly used for diagnostic purposes by health professionals.[[16]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftn16) We do not object to the application of different scoping requirements for different types of accessible MDE based on usage. For example,  patients will utilize examination chairs, examination tables, and weight scales during the majority of medical appointments more frequently than equipment, like a mammography machine. A ten percent requirement for mammography equipment, x-ray machines, and other radiology equipment may be sufficient for any size recipient. But as we share below, we do not support the ten percent and twenty percent requirements for other types of accessible MDE, based on type of setting, that HHS proposes.

MDE Question 3: Because more patients with mobility disabilities may need accessible MDE than need accessible parking, the Department seeks public comment on whether the Department’s suggested scoping requirement of 20 percent is sufficient to meet the needs of persons with disabilities.

Response:  We do not believe the proposed scoping requirement of either 10 percent or 20 percent, depending on facility type, will be sufficient to meet the current or future needs of a growing population of people with mobility disabilities or support the needs of practitioners that provide their care.

HHS proposes that:

Physician’s offices, clinics, emergency rooms, hospitals, outpatient facilities, multi-use facilities, and other medical programs and activities that do not specialize in treating conditions that affect mobility and use MDE to provide programs or activities, must ensure that at least 10 percent, but no fewer than one unit, of each type of equipment complies with the MDE Standards. For example, a medical practice with twenty examination chairs would be required to have two examination chairs (10 percent of the total) that comply with the MDE Standards. In a medical practice with five examination chairs, the practice would be required to have one examination chair that complies with the MDE Standards. If a dental practice has one x-ray machine, that x-ray machine would be required to be accessible.

Rehabilitation facilities that specialize in treating conditions that affect mobility, outpatient physical therapy facilities, and other medical programs and activities that specialize in treating conditions that affect mobility would have to have at least 20 percent of each type of MDE used in these types of programs and activities, but no fewer than one unit of each type of MDE, must comply with the MDE Standards.

Response: Most physician’s offices, clinics, emergency rooms, hospitals, outpatient facilities, multi-use facilities do not specialize in mobility conditions, but people with mobility disabilities, just like the general population, normally and frequently utilize them to receive health care and 10 percent does not adequately respond to the current or future need for accessible MDE in such facilities. The Centers for Disease Control and Prevention (CDC) reports that in 2021, people with mobility disabilities were the largest category of people with disabilities, comprising an estimated 32 million people – about 12.1% of the United States 18 and older population.[[17]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftn17) We point out that this data is already dated, and due to the correlation between aging and disability, the percentage of people who need accessible MDE is growing due to the U.S.’ increasing older population.[[18]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftn18)

The nation’s demographics speak to the need for health care facilities that are accessible to both the current population of people with mobility disabilities as well as a growing number of older people who will have mobility challenges and mobility disabilities at varying levels. The CDC reports that disabilities are more common among adults 65 years of age and older; approximately 2 in 5 adults in this age group have a disability.[[19]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftn19) Further supporting the need for more accessible MDE in all health care facilities is data from the Census Bureau which shows that the nation’s 65-and-older population will nearly double in size in coming decades, from 49 million in 2016 to 95 million people in 2060: specifically, the percentage of people aged 65 and older will grow from about 15 percent in 2016 to nearly a quarter of the population in 2060, and the number of people 85 years and older is expected to nearly double by 2035 (from 6.5 million to 11.8 million) and nearly triple by 2060 (to 19 million people).[[20]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftn20)

We therefore urge HHS to increase the percentage of accessible MDE that will be required in both types of facilities/programs. First, we recommend that HHS require facilities or programs that do not specialize in mobility conditions to ensure that at least 20 percent of examination chairs, examination tables, and weight scales are accessible. Secondly, we recommend that HHS require facilities or programs that specialize in mobility conditions to ensure that at least 40 percent of examination chairs, examination tables, and weight scales are accessible. We do not object to a 10 percent requirement for radiology machines in either type of facility or program.

We also recommend that, if the first description above (of facilities that do not specialize in mobility conditions) is retained in the final rule, that it be adjusted for clarity. The term “dental practice” should be used throughout the paragraph instead of “medical practice,” since dental practices use examination chairs. This change also aligns the information with the last sentence of the paragraph which refers to a dental practice.

MDE Question 5: The Department seeks public comment on whether the proposed approach to dispersion of accessible MDE is sufficient to meet the needs of individuals with disabilities, including the need to receive different types of specialized medical care.

MDE Question 6: The Department seeks public comment on whether additional requirements should be added to ensure dispersion (e.g., requiring at least one accessible exam table and scale in each department, clinic, or specialty; requiring each department, clinic and specialty to have a certain percentage of accessible MDE).

Response to MDE Questions 5 and 6: NCD supports HHS’ proposed application of the 2010 ADA Standards to the dispersion of accessible MDE which would require any facility or program that has multiple departments, clinics, or specialties, which utilize MDE to disperse the accessible MDE proportionately across departments, clinics, or specialties. We strongly believe that the goal for such facilities should be to have accessible MDE in every department, clinic, and specialty. To that end, HHS should require that, as such a facility or program acquire accessible MDE, it shall ensure that  at least one accessible exam table and weight scale (in departments that weigh patients) is located in every department/clinic/specialty for the convenience of both the providers and the patients. The ability of a facility to achieve this goal may be limited by  the amount of accessible MDE that HHS will require compared to the facility’s size, however, placement of accessible MDE to each area should be the ultimate goal wherever possible.

MDE Question 7: The Department seeks information regarding: The extent to which accessible MDE can be moved or otherwise shared between clinics or departments; the burdens that the rule’s proposed approach to dispersion or additional dispersion requirements may impose on recipients; and the burdens that the rule’s proposed approach to dispersion may impose on people with disabilities (e.g., increased wait times if accessible MDE needs to be located and moved, embarrassment, frustration, or impairment of treatment that may result if a patient must go to a different part of a hospital or clinic to use accessible MDE).

Response: It will be difficult and time consuming to share accessible MDE between departments. One can imagine a host of scenarios where this would be a challenge, e.g., a patient has a same day appointment and the accessible MDE is being used; a patient indicates the need for accessible MDE, staff locate and move the equipment and the patient has to reschedule (creating unnecessary work for recipients in preparing for an appointment); finding out a patient needs it only after they arrive, delaying the appointment time while MDE is moved. Other considerations include the need to develop procedures for locating and safely moving MDE; determining which MDE is available; moving it to the department where it is needed prior to the time of the patient’s appointment to prevent delays in care; and developing procedures on how to assist, examine, and weigh the patient if there isn’t accessible MDE available. Asking a patient to go to another department where accessible MDE is located also can delay care and cause embarrassment to the patient and disrupt both physicians’ and patients’ schedules.

MDE question 8: HHS asks for comment on the advisability and equity implications of its proposal to retain § 84.22(c) in its existing section 504 regulation and applying it to the obligation to acquire accessible MDE under this proposed rule. Existing § 84.22(c) provides that when a recipient with fewer than fifteen employees finds that there is no method of complying with accessibility requirements other than making a significant alteration in its existing facilities, it may refer a patient with a disability to other providers of those services that are accessible.

Response: NCD strongly opposes retaining § 84.22(c) and applying it to the obligation to acquire accessible MDE because it will functionally exempt the majority of physicians’ and dentists’ offices from the obligation to acquire accessible MDE. This exemption runs contrary to HHS’ purpose for adding an accessible MDE requirement,[[21]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftn21) is unnecessary, and most importantly, will leave many people with disabilities in the same situation that they are in today.

HHS states that there are 168,459 physicians’ offices and 124,384 dentists’ offices in the U.S., and that 92% of physicians and 43% of dentists receive Federal financial assistance from HHS and are thus subject to section 504.[[22]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftn22) The 2020 Census Bureau data on physician and dentists’ offices,[[23]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftn23) closely matches this number of offices (167,294 and 123,078), and shows that the majority of physicians’ and dentists’ practices are small: 144,800 physicians’ offices had 15 or less employees,[[24]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftn24) and 111,250 dentists’ offices had 14 or less employees.[[25]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftn25) Therefore, if § 84.22(c) is retained and applied to the accessible MDE requirements, about 154,000 of 168,459 physician’s offices and about 48,000 of 124,384 dentists’ offices could claim that providing any accessible MDE – even one exam table, one weight scale, one examination chair – would be too great of a burden This result should not be acceptable to HHS.

Since the majority of physician and dental practices are smaller recipients under § 84.22(c), applying the provision would mean patients with mobility disabilities would continue to be unable to choose physicians based on proximity or specialty and would be burdened with locating larger providers who might have accessible MDE but might be farther away or lack the expertise they need. This would particularly impact those in rural or semi-rural areas where physicians and specialists typically have smaller and fewer practices. This action therefore would largely maintain the status quo and neglect to address this ongoing barrier to equitable health care and the equal opportunity to participate in and benefit from federally-assisted health care programs

Retaining this provision and applying it to accessible MDE is also not necessary. Proposed section 84.92(c) (Requirements for Examination Tables and Weight Scales) provides a manner by which any covered entity may avoid the obligation to acquire an accessible examination table and an accessible weight scale if it can demonstrate that doing so would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens, per § 84.92(e) and (f). In addition, this proposed section allows recipients to use designs, products, or technologies as alternatives to those prescribed by the MDE Standards if the criteria set forth in § 84.92(d) are satisfied.

It is important to point out that in HHS’ 2019, section 1557 proposed rule, it sought comment on whether HHS should exempt recipients with fewer than 15 employees from the obligation to provide auxiliary aids and services to people with disabilities, and NCD  opposed that proposed exemption for the same reason - because it would effectively release the majority of physicians’ offices from their obligation to take appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with others in health programs and activities.[[26]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftn26) As you describe in this proposed rule, HHS’ decided against providing an exemption for smaller recipients under section 1557 and the final section 1557 regulations require all recipients to provide appropriate auxiliary aids and services irrespective of size.[[27]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftn27) HHS explains that it made this decision “because noncompliance in this area is so harmful to individuals with disabilities,” and states that “In particular, the section 1557 final rule recognized that effective communication helps ensure equal opportunities in the health care setting, leading to better health outcomes for individuals with disabilities.[[28]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftn28)

Similarly, HHS has also decided against providing an exemption to smaller recipients for web accessibility requirements in this proposed rule.[[29]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftn29) After weighing the burdens on smaller recipients and burdens on people with disabilities who would not have access to smaller recipients websites/mobile apps, HHS decided it is best to “… require these recipients to ensure that the web content and mobile apps they make available to the public or use to offer programs and activities to members of the public comply … unless they can demonstrate that compliance would result in a fundamental alteration in the nature of a program or activity or undue financial and administrative burdens. This is the same substantive standard that applies to larger recipients.”[[30]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftn30)

The reasons HHS relied on to decline providing smaller recipients with an exemption from the requirement to provide auxiliary aids and web accessibility also clearly apply to accessible MDE. We urge you to make the same decision here and decline to retain and apply § 84.22(c) to accessible MDE.

HHS is proposing to give small recipients three years after the publication of a final rule to make their web content and mobile apps compliant with the Department’s proposed requirements.[[31]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftn31) HHS could consider this option for smaller recipients with regard to the accessible MDE requirement, in lieu of application of § 84.22(c).

MDE Question 9: The Department seeks public comment on whether two years would be an appropriate amount of time for the requirements of paragraph (c); and if two years would not be an appropriate amount of time, what the appropriate amount of time would be.

Response: NCD opposes a two-year delay for recipients to obtain accessible MDE. We recommend that HHS require recipients to acquire an accessible exam table within one year of the final regulation, and to acquire an accessible weight scale within 120 days.

In closing, we thank OCR for issuing this thorough proposed rule to address discrimination experienced by people with disabilities in accessing health care and social services. Should you have questions about anything in this response, please contact Joan Durocher, General Counsel and Director of Policy at jdurocher@ncd.gov.

Respectfully, 

Claudia Gordon
Vice Chair


[[1]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftnref1) 29 U.S.C. § 781(a)(5) - (a)(6).

[[2]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftnref2) 29 U.S.C. § 781(a)(10).

 

[[3]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftnref3) For NCD’s historical publications on Section 504 and other historical health recommendations, please click on the “Health” tab on NCD’s home page at www.ncd.gov. For recent communications, see, e.g., NCD Bioethics and Disability Report Series (2019), https://ncd.gov/publications/2019/bioethics-report-series; Letter from NCD letter to U.S. Dep’t of Health & Hum. Servs., Off. for Civil Rts. and the U.S. Dep’t of Justice, (Sept. 25, 2019) (on organ transplant discrimination), https://ncd.gov/publications/2019/ncd-letter-hhs-and-doj-organ-transplants; Letter from NCD to U.S. Dep’t of Health & Hum. Servs., Off. for Civil Rts., (Dec. 11, 2019) (on assisted suicide, medical futility and QALYs reports), https://ncd.gov/publications/2019/ncd-letter-hhs-3-bioethics-reports; Letter from NCD to the Centers for Medicare and Medicaid Services (CMS), (February 7, 2020)(on QALYs, organ transplants), https://ncd.gov/publications/2020/ncd-letter-centers-medicare-and-medicaid-qalys-organ-transplants; Letter from NCD to U.S. Dep’t of Health & Hum. Servs., Off. for Civil Rts., (Mar. 18, 2020) (requesting that OCR issue a statement to medical providers on obligation to provide nondiscriminatory COVID-19 care to people with disabilities), https://ncd.gov/publications/2020/ncd-covid-19-letter-hhs-ocr; Letter from NCD to CMS, (Mar. 24, 2020)( on COVID-19 and direct service providers), https://ncd.gov/publications/2020/ncd-cms-covid-19-letter; NCD letter to HHS Secretary Azar, (July 31, 2020)(on need for accessible medical equipment rule), https://ncd.gov/publications/2020/ncd-letter-hhs-secretary-azar-accessible-medical-equipment-rule; NCD letter to HHS Secretary Becerra concerning health equity, (June 8, 2021)(on health equity), https://ncd.gov/publications/2021/ncd-letter-hhs-secretary-becerra-concerning-health-equity; NCD Letter to Agency for Health Care Research and Quality (AHRQ), (August 2, 2021)(on accessible medical equipment report), https://ncd.gov/publications/2021/ncd-letter-ahrq-adme-report; NCD letter to National Institute on Minority Health and Health Disparities (NIMHD) and AHRQ, (December 7, 2021)(requesting health disparity population designation for people with disabilities), https://ncd.gov/publications/2021/ncd-letter-nimhd-ahrq-health-disparity-population-designation.

[[4]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftnref4) Id. NCD Bioethics and Disability Report Series (2019).

[[5]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftnref5) See, e.g., Letter from NCD to U.S. Dep’t of Health & Hum. Servs., Off. for Civil Rts., (Mar. 18, 2020) (describing news reports and crisis standards of care and requesting that OCR issue a statement to medical providers on obligation to provide nondiscriminatory COVID-19 care to people with disabilities), https://ncd.gov/publications/2020/ncd-covid-19-letter-hhs-ocr.

[[6]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftnref6) Id.

 

[[7]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftnref7) https://public3.pagefreezer.com/content/HHS.gov/31-12-2020T08:51/https://www.hhs.gov/about/news/2020/03/28/ocr-issues-bulletin-on-civil-rights-laws-and-hipaa-flexibilities-that-apply-during-the-covid-19-emergency.html

[[8]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftnref8) Nondiscrimination in Health and Human Service Programs or Activities, 88 FR 63392, 63406 (September 14, 2023).

[[9]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftnref9) NCD, The Danger of Assisted Suicide Laws (2019), https://ncd.gov/sites/default/files/NCD_Assisted_Suicide_Report_508.pdf.

[[10]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftnref10) Id.

[[11]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftnref11) Id.

[[12]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftnref12) NCD, The Danger of Assisted Suicide Laws, at 37.

[[13]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftnref13) NCD has promoted and recommended web accessibility for decades. See, e.g., NCD Letter to DOJ Regarding Web Accessibility NPRM (Oct. 7, 2016), https://ncd.gov/publications/2016/ncd-letter-doj-regarding-web-accessibility-nprm; NCD, Application of the Americans with Disabilities Act to the Internet and the Worldwide Web (2003), https://ncd.gov/publications/2003/July102003; NCD, The Accessible Future (2001), https://ncd.gov/publications/2001/June_2001.

[[14]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftnref14) Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities, 88 FR 51948, 51950, (August 4, 2023).

[[15]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftnref15) NCD Letter to HHS OCR in Response to Section 1557 Notice of Proposed Rulemaking, (August 27, 2019), https://ncd.gov/publications/2019/advisory-letter-1557; NCD letter to HHS Secretary Azar on need for accessible medical equipment rule (July 31, 2020), https://ncd.gov/publications/2020/ncd-letter-hhs-secretary-azar-accessible-medical-equipment-rule; NCD, Enforceable Accessible Medical Equipment Standards: A Necessary Means to Address the Health Care Needs of People with Mobility Disabilities (2021), https://ncd.gov/​sites/​default/​files/​Documents/​NCD_​Medical_​Equipment_​Report_​508.pdf; NCD, 2021 Progress Report: The Impact of Covid on People with Disabilities (2021), https://ncd.gov/​sites/​default/​files/​NCD_​COVID-19_​Progress_​Report_​508.pdf.

[[16]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftnref16) Nondiscrimination in Health and Human Service Programs or Activities, 88 FR 63392, 63453 (September 14, 2023).

[[17]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftnref17) Centers for Disease Control and Prevention. Disability and Health Data System (DHDS) [Internet]. [updated 2023 May]. https://dhds.cdc.gov/SP?LocationId=59&CategoryId=DISEST&ShowFootnotes=true&showMode=&IndicatorIds=STATTYPE,AGEIND,SEXIND,RACEIND,VETIND&pnl0=Table,false,YR6,CAT1,BO1,,,,AGEADJPREV&pnl1=Chart,false,YR6,DISSTAT,,,,,PREV&pnl2=Chart,false,YR6,DISSTAT,,,,,AGEADJPREV&pnl3=Chart,false,YR6,DISSTAT,,,,,AGEADJPREV&pnl4=Chart,false,YR6,DISSTAT,,,,,AGEADJPREV.

[[18]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftnref18) Id.

[[19]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftnref19) Centers for Disease Control and Prevention,  Prevalence of Disabilities and Health Care Access by Disability Status and Type Among Adults — United States, 2016,

https://www.cdc.gov/ncbddd/disabilityandhealth/features/kf-adult-prevale….

[[20]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftnref20) U.S. Census Bureau, Demographic Turning Points for the United States: Population Projections for 2020 to 2060, P25-1144, 2018, 3, February 2020. Available at: https://www.census.gov/content/dam/Census/library/publications/2020/demo…

[[21]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftnref21) Nondiscrimination in Health and Human Service Programs or Activities, 88 FR 63392, 63451 (September 14, 2023)(In this proposed rule, HHS states that “The accessibility of MDE is essential to providing equal access to medical care to people with disabilities. In developing this proposed subpart, the Department considered the well-documented barriers individuals with disabilities face when accessing MDE, as well as the benefits for people with disabilities and health care workers alike of using accessible MDE. HHS recognizes that “The accessibility or inaccessibility of MDE impacts a substantial population—approximately 61 million adults live with a disability in the U.S., and 13.7% of those individuals have a mobility disability with serious difficulty walking or climbing stairs.” HHS recognizes the body of studies and literature that show that individuals with disabilities may be less likely to get routine or preventative medical care than people without disabilities because of barriers to accessing appropriate care through accessible MDE. HHS recognizes that accessible MDE is often critical to an entity’s ability to provide a person with a disability equal access to, and opportunities to benefit from, its health care programs and activities.)

[[22]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftnref22) Nondiscrimination in Health and Human Service Programs or Activities, 88 FR 63392, 63491 (September 14, 2023).

[[23]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftnref23) 2020 Statistics of U.S. Businesses (SUSB) Annual Datasets by Establishment Industry. https://www.census.gov/data/tables/2020/econ/susb/2020-susb-annual.html. Chart on

U.S. & states, NAICS, detailed employment sizes  at line 37515 shows total physicians’ offices in 2020 at 167,294. Line 37619 shows total dentists’ offices at 123,078. We focus our comment on physician and dental offices because HHS specifically references them in this proposed rule, but this does not take into account optometrists’ offices, which will also need to acquire accessible examination chairs but would also be functionally exempt from the requirement. Like most physicians and dentists, most optometrists’ offices would be functionally exempt as 17,151 offices out of a total of 19,000 offices have fourteen or less employees. See the same chart at lines 37763-37766.

[[24]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftnref24) Id. at Lines 37516-37518.

[[25]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftnref25) Id. at lines 37620-37622.

[[26]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftnref26) NCD letter to Roger Severino on HHS’ section 1557 proposed rule (August 27, 2019).

[[27]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftnref27) See 45 CFR 92.102.

[[28]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftnref28) Nondiscrimination in Health and Human Service Programs or Activities, 88 FR 63392, 63488-89 (September 14, 2023).

[[29]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftnref29) Id. at 63430.

[[30]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftnref30) Id.

[[31]](https://ncd.gov/publications/2023/ncd-comments-hhs-section-504-nprm-disability-discrimination-health-and-human#_ftnref31) Id.

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An official website of the National Council on Disability