Time to Update Your Website? New Anti-Discrimination Rules Require Action by Health Care Providers

On May 1, 2024, the U.S. Department of Health and Human Services (“HHS”) published an update to Section 504 of the Rehabilitation Act (the “Updated Rule”), designed to counteract discrimination on the basis of disability. Effective July 8, 2024, the Updated Rule extends its scope to encompass recipients of federal financial assistance, including healthcare providers who receive Medicare or Medicaid funds (“Recipients”). Most notably, this Updated Rule introduces enforceable criteria for accessible medical diagnostic equipment and mandates accessibility in web content and mobile apps.

Web and Mobile Accessibility.
The delivery of health care by way of web content and mobile applications has become increasingly popular since the COVID-19 Public Health Emergency. The Updated Rule acknowledges this fact by imposing regulations that aim to promote widespread accessibility of mobile content. According to the Updated Rule, Recipients must guarantee that all web content and mobile apps they offer are accessible to individuals with disabilities. Under § 84.84 of the Updated Rule, Recipients are directed to follow specific technical standards to ensure accessibility. Compliance is due by May 11, 2026, if the Recipient has fifteen or more employees or by May 11, 2027, if the Recipient has fewer than fifteen employees.

Medical Diagnostic Equipment.
Per HHS, many individuals with disabilities have experienced barriers to necessary care due to inaccessible medical diagnostic equipment (“MDE”). Under §84.90 of the Updated Rule, Recipients are required to have MDE that complies with accessibility standards and must ensure that their staff are able to successfully operate accessible MDE and assist with transfers and positioning of individuals with disabilities.

Any MDE acquired after July 8, 2024, must meet the standards for accessible MDE, until the Recipient meets its minimum required percentage of MDE. For facilities specializing in treating mobility-related conditions, such as rehabilitation centers and outpatient physical therapy facilities, a minimum of 20% of each type of MDE in use must comply with accessibility standards. Generally, most other providers are required to have a minimum of 10% of each type of MDE in use that complies with accessibility standards. Additionally, any Recipient who uses an examination table or a weight scale must acquire at least one accessible version of each by July 8, 2026, if they don’t already have one.

The Updated Rule requires Recipients to ensure that every program offered through or with the use of MDE is readily accessible and usable for individuals with disabilities, in its entirety. This requirement does not mean that a Recipient must make each of its existing pieces of MDE accessible to individuals with disabilities, nor does it mean a Recipient must acquire accessible MDE when other methods are effective in achieving compliance with the requirement. Rather, it requires a Recipient to carry out its program in a non-discriminatory fashion.

Notably, the Updated Rule provides exceptions to its requirements. Generally, Recipients are not required to take any action that may result in the fundamental alteration of the nature of their program or create an undue financial or administrative burden. In this case, the Recipient must pursue an alternative course that avoids such results while still ensuring individuals with disabilities can receive the Recipient’s services. As for newly acquired MDE, Recipients may use designs, products, or technologies as alternatives to those prescribed by the standards for accessible MDE. However, the Recipient must be able to prove that the use of those alternatives results in greater accessibility of their program.

Medical Treatment.
Recipients must ensure that medical treatment choices aren’t influenced by biases or stereotypes regarding people with disabilities, assumptions that a disabled individual will impose a burden on others, or convictions that the life of a person with a disability is worth less than that of someone without one.

Value Assessment Methods.
Recipients are to avoid value assessment methods that place a lower value on life-extension for individuals with disabilities or that are used to limit access or deny aid, benefits, or services.

Service Animals.
Recipients must ensure any service animal related policies, practices, or procedures permit the use of a service animal by an individual with a disability.

Maintenance of Accessible Features.
Recipients must ensure that facilities and equipment designated for use by individuals with disabilities remain in proper working condition and are accessible.

Mobility Devices.
Recipients must allow individuals to utilize manually operated mobility aids like wheelchairs in pedestrian-accessible areas, as well as power-driven mobility devices under certain circumstances.

Recipients must establish effective communication with individuals who have hearing, vision, or speech impairments by offering auxiliary aids such as qualified interpreters or readers.

Effective Date.
In its entirety, the Updated Rule will become effective on July 8, 2024. However, compliance deadlines differ based on the action required and the Recipient. For more information, contact Attorney Lora L. Zimmer, Attorney Anika S. Van Rossum, or your regular McCarty Law attorney.

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Anika focuses her practice on corporate and business transactions, addressing the business and regulatory needs of health care clients. She enjoys traversing complex health care regulations and navigating the complexities of contracts.