Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance

<RULE> DEPARTMENT OF HEALTH AND HUMAN SERVICES <CFR>45 CFR Part 84</CFR> <RIN>RIN 0945-AA15</RIN> <SUBJECT>Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> U.S. Department of Health and Human Services. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Department of Health and Human Services (HHS or the Department) is committed to protecting the civil rights of individuals with disabilities under section 504 of the Rehabilitation Act of 1973 (section 504). To implement the prohibition of discrimination on the basis of disability, the Department is making a number of revisions to update and amend its section 504 regulation. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> <E T="03">Effective date:</E> This rule is effective July 8, 2024. <E T="03">Incorporation by reference:</E> The incorporation by reference of certain material listed in the rule is approved by the Director of the Federal Register as of July 8, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Molly Burgdorf, Office for Civil Rights, Department of Health and Human Services at (202) 545-4884 or (800) 537-7697 (TDD), or via email at <E T="03">504@hhs.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Table of Contents</HD> <EXTRACT> <FP SOURCE="FP-2">I. Background</FP> <FP SOURCE="FP-2">II. Overview of the Final Rule</FP> <FP SOURCE="FP-2">III. Response to Public Comments on the Proposed Rule</FP> <FP SOURCE="FP-2">IV. Executive Order 12866 and Related Executive Orders on Regulatory Review</FP> </EXTRACT> <HD SOURCE="HD1">I. Background</HD> Section 504 of the Rehabilitation Act of 1973 prohibits discrimination on the basis of disability in programs and activities that receive Federal financial assistance as well as in programs and activities conducted by any Federal agency. <SU>1</SU> <FTREF/> <FTNT> <SU>1</SU>  29 U.S.C. 794. </FTNT> The Office for Civil Rights (OCR) in HHS enforces section 504 as well as other statutes that prohibit discrimination on the basis of disability. Title II of the Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability in, among other areas, all health care and social services programs and activities of State and local government entities. <SU>2</SU> <FTREF/> OCR also enforces section 1557 (section 1557) of the Patient Protection and Affordable Care Act (ACA) which prohibits discrimination on various bases, including disability, in any health program or activity, any part of which receives Federal financial assistance, including credits, subsidies, or contracts of insurance or under any program or activity that is administered by an Executive Agency or any entity established under title I of the ACA. <SU>3</SU> <FTREF/> <FTNT> <SU>2</SU>  42 U.S.C. 12132. </FTNT> <FTNT> <SU>3</SU>  42 U.S.C. 18116. </FTNT> Congress passed the Rehabilitation Act in 1973, and what was then the U.S. Department of Health, Education, and Welfare issued regulations to implement section 504 in 1977. Those regulations have rarely been amended. <SU>4</SU> <FTREF/> In the more than 40 years since enactment of the regulations, major legislative and judicial developments have shifted the legal landscape of disability discrimination protections under section 504. These developments include multiple statutory amendments to the Rehabilitation Act, the enactment of the ADA and ADA Amendments Act of 2008 (ADAAA), passage of the ACA, and Supreme Court and other significant court cases. In addition, the Department is aware of specific manifestations of disability-based discrimination in recent years, for example, in the area of accessibility of information and communications technology. <FTNT> <SU>4</SU>  Amendments to the section 504 regulations over time have included changes such as addressing the withholding of medical care from infants with disabilities (changes that the Supreme Court invalidated in <E T="03">Bowen</E> v. <E T="03">Amer. Hosp. Ass'n,</E> 476 U.S. 610 (1986)); changes to the accessible building standards; and changes to the definition of “program or activity” to conform to the Civil Rights Restoration Act of 1987). </FTNT> Section 504 must be interpreted consistently with these developments and laws to ensure conformity with current law and to protect against discrimination on the basis of disability. To provide clarity for recipients and beneficiaries and to promote compliance, the Department is amending its existing section 504 regulation on nondiscrimination obligations for recipients of Federal financial assistance (part 84). <SU>5</SU> <FTREF/> <FTNT> <SU>5</SU>  The Department notes that on January 15, 2021, OCR posted on its website a Request for Information (RFI) addressing a number of disability discrimination issues under part 84 of section 504. The RFI was later withdrawn, without being published in the <E T="04">Federal Register</E> . OCR subsequently received letters urging HHS to address the issues in the RFI. </FTNT> <HD SOURCE="HD1">II. Overview of the Final Rule</HD> On September 14, 2023, the Department published a proposed rule to amend 45 CFR part 84, Discrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance (88 FR 63392). The 60-day comment period ended on November 13, 2023. The final rule adopts the same structure and subparts as the proposed rule. We have made some changes to the proposed rule's provisions based on comments received. As discussed in the notice of proposed rulemaking (NPRM), to fulfill Congress's intent that title II of the ADA and section 504 be interpreted consistently, the rule contains provisions that mirror the corresponding provisions in the title II ADA regulation. No substantive difference is intended, aside from denoting the singular or plural, when using the terms “individual with a disability,” “people with disabilities,” and “person with a disability” throughout this rule. The Department is retaining several sections from the existing section 504 rule. Many of those retained sections contain terminology revisions. The current rule can be found at: <E T="03">https://www.ecfr.gov/current/title-45/subtitle-A/subchapter-A/part-84.</E> <HD SOURCE="HD1">III. Response to Public Comments on the Proposed Rule</HD> This section focuses on the provisions of the rule that are relevant to comments received, and the explanations necessary to address those comments. For a fuller explanation of the background and intended meaning of regulatory language in the final rule that remain unchanged from the NPRM, please refer to the discussion in the NPRM. <HD SOURCE="HD2">Subpart A—General Provisions</HD> Subpart A sets forth the general provisions that apply to all recipients. Four of the sections from the existing regulation are retained without any changes, §§ 84.5 through 84.7 and 84.9. The remainder of the sections in this subpart are identical or similar to the ADA title II regulations. <HD SOURCE="HD3">Purpose and Broad Coverage (§ 84.1)</HD> Proposed § 84.1(a) provided that the purpose of this regulation is to implement section 504, which prohibits discrimination on the basis of disability in any program or activity receiving Federal financial assistance. Proposed § 84.1(b) stated that the definition of “disability” shall be construed broadly in favor of expansive coverage to the maximum extent permitted by section 504. The primary objective of attention in cases should be whether recipients have complied with their obligations and whether discrimination occurred, and not whether the individual meets the definition of “disability.” The question of whether an individual meets the definition of “disability” should not demand extensive analysis. The comments and our responses regarding § 84.1 are set forth below. <E T="03">Comment:</E> The Department received many comments applauding the inclusion of this section. Commenters expressed appreciation for the Department's commitment to construing the protection of the law broadly in favor of expansive coverage. <E T="03">Response:</E> The Department appreciates the commenters' input. <HD SOURCE="HD3">Summary of Regulatory Changes</HD> We are finalizing § 84.1 as proposed with no modifications. <HD SOURCE="HD3">Application (§ 84.2)</HD> Proposed § 84.2(a) provided that this part applies to each recipient of Federal financial assistance from the Department and to the recipient's programs and activities that involve individuals with disabilities in the United States. This part does not apply to the recipient's programs and activities outside the United States that do not involve individuals with disabilities in the United States. Proposed § 84.2(b) provided that the requirements of this part do not apply to the ultimate beneficiaries of any program or activity operated by a recipient of Federal financial assistance. Proposed § 84.2(c) provided that any provision of this part held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, shall be construed so as to continue to give maximum effect to the provision permitted by law, unless such holding shall be one of utter invalidity or unenforceability, in which event the provision shall be severable from this part and shall not affect the remainder thereof or the application of this provision to other persons not similarly situated or to other dissimilar circumstances. The comments and our responses regarding proposed § 84.2 are set forth below. <E T="03">Comments:</E> The Department received several comments asking for clarification of the types of entities covered by section 504. Many ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 1019k characters. 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