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HHS/OCR RIN: 0945-AA23 Publication ID: Fall 2024 
Title: Rulemaking on Nondiscrimination on the Basis of Disability in Programs and Activities Conducted by the Department of Health and Human Services 
Abstract:

This proposed rule would revise regulations under section 504 of the Rehabilitation Act of 1973 to address discrimination on the basis of disability in programs and activities conducted by HHS. Covered topics may include nondiscrimination in medical treatment, accessible medical equipment, accessible communications, compliance procedures, coordination responsibilities, and other disability discrimination issues.

 
Agency: Department of Health and Human Services(HHS)  Priority: Other Significant 
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage 
Major: Undetermined  Unfunded Mandates: No 
CFR Citation: 45 CFR 85   
Legal Authority: 29 U.S.C. 794   
Legal Deadline:  None

Statement of Need:

Section 504 of the Rehabilitation Act of 1973 (Section 504) prohibits discrimination against qualified individual[s] with disabilities on the basis of that disability. Section 504 covers both federally assisted programs and federally conducted programs. The proposed rule applies to federally conducted activity and will further the Administration’s commitment to vigorous civil rights enforcement in alignment with the Department’s strategic plan. The proposed rule will maximize the independence, well-being, health, and healthcare of people with disabilities in HHS-operated programs and activities. 

HHS amended its implementing regulations for federally assisted programs in May 2024. The amended regulations address specific modern manifestations of disability-based discrimination and incorporate various statutory, regulatory, and related changes that have shifted the legal landscape for disability rights since 1977. Such changes include amendments to the Rehabilitation Act, passage of the Americans with Disabilities Act (ADA) and the ADA Amendments Act of 2008 (ADAAA), as well as Supreme Court decisions and other significant court cases. The regulations were also amended to update outdated terminology and regulatory provisions.

The Department plans to amend the federally conducted programs regulations for consistency with the federally assisted regulation. It is important that the Department hold itself to at least the same standards of nondiscrimination that it requires of recipients. Having the same standard applied to both the Department and its recipients reduces the burden on the public by reducing confusion about nondiscrimination standards in HHS and its recipients. The new regulation also should reduce barriers to accessing HHS-conducted programs and activities for people with disabilities by applying consistent standards, addressing modern manifestations of discrimination, and removing outdated language.

Summary of the Legal Basis:

Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794, gives HHS the authority to promulgate regulations prohibiting discrimination on the basis of disability in programs and activities conducted by the Department.

Alternatives:

The main alternative is to leave the federally conducted regulations, Part 85, unamended. If the Department does not advance this proposed rulemaking, HHS itself and recipients of financial assistance from HHS will be subject to different standards, which could be interpreted to mean that the Federal government does not believe that its own programs and activities should be as accessible as those of recipients. Additionally, Part 85 was last updated in 1988. It does not address modern manifestations of disability-based discrimination and contains outdated language, which was why HHS updated Part 84 this past spring.

Anticipated Costs and Benefits:

The proposed rule largely clarifies the Department’s existing obligations under Section 504 and we do not believe the costs reach the economically significant threshold of E.O. 12886.

The proposed rule applies only to the management of a Federal agency and, while it will have costs for HHS, including the revision of policies and procedures, self-evaluation of compliance, and the purchase of accessible medical equipment by OpDivs providing health care services, these costs do not rise to the level of being economically significant under the E.O.

We anticipate significant unquantifiable benefits under the proposed rule. By reducing barriers to accessing health care for people with disabilities, more individuals will have longer, healthier lives and have a greater likelihood of maintaining economic productivity by maintaining good health. Examples include the benefits associated with successful drug dosing for persons with disabilities who will now be able to be weighed and given proper non-cancer drug regimens due to accessible weight scales, and the long-term cost savings of early cancer detection through accessible mammography. In addition to these health improvements, we anticipate benefits to HHS from additional regulatory clarity on how OCR will enforce Section 504’s nondiscrimination protections. Greater clarity should reduce the number of intra-agency enforcement actions, representing a potential cost-saving benefit for the Department.

Risks:

We anticipate minimal risks within the jurisdiction of the agency. We anticipate strong support for the proposed rule from disability, aging, civil rights, and patient advocacy groups. During the rulemaking for the federal assisted regulation, we received comments from many organizations and individuals urging the Department to issue regulations for its federally conducted programs. We anticipate extensive comments from HHS components since these regulations impose new requirements on them and clarify existing obligations. We will work with components to receive their input and address their concerns.

Timetable:
Action Date FR Cite
NPRM  06/00/2025 
Regulatory Flexibility Analysis Required: No  Government Levels Affected: Federal 
Small Entities Affected: No  Federalism: No 
Included in the Regulatory Plan: Yes 
RIN Data Printed in the FR: No 
Agency Contact:
John Thompson
Policy Advisor, Policy Division
Department of Health and Human Services
Office for Civil Rights
200 Independence Avenue SW,
Washington, DC 20201
Phone:800 368-1019
TDD Phone:800 537-7697
Email: 504@hhs.gov